Senate Legal and Constitutional Affairs Legislation Committee [Part 2], , 1:50:55 to 2:02:44
The commission explains the process for updating exemption guidelines and the use of taxpayer-funded communications consultants.
Topics: Human rights, Government spending
Speakers: Speaker 11, Dr Anna Cody, Senator The Hon Michaelia Cash, Hugh De Kretser, Unknown Speaker
>> thank you very much. Um, chair and and we'll go back to the sex discrimination commissioner if I may. Thank you. And I just had a quick question um that's sort of stand alone now. the lesbian action group um v the Australian Human Rights Commission. Um now there was found to be deficiencies in the temporary exemption guidelines that that the court um mentioned in its findings as it as it set aside the decision and sent it back to the art. Have those guidelines been updated?
>> They're in the process of being updated,
Senator. When do you expect them to be?
>> We anticipate in the next two months that they will be updated.
>> Can I ask then? Um so anyone who's wanting to apply for an exemption um are they using the old guidelines?
They would be using the old guidelines, but they can also seek information as I said previously from members of the commission to take them through the guidelines, but also the specific issue around section 10A and indivisibility and universality of human rights. Given
um some of the questions that we've posed today to the attorney general's department, do you think that given um the the recent outcome um of the giggle v tickle that perhaps those um temporary exemption guidelines should be updated a little faster because we've got a lot of businesses and people aren't quite sure whether they need to apply for exemptions and how to do it.
We are working on it as speedily as poss as we can. Okay.
I think um in terms of and Senator Cash um went into the the decision um of the high court which has now refused special leave. Um, do you now accept um, Professor Gerber's assessment that this makes it crystal clear that employers cannot lawfully exclude men who identify as women from female only recruitment drives designed to address the under representation of women in those particular industries?
>> Sorry, could you repeat the question,
Senator? So, um, Professor Gerber's assessment that it makes it, and this is, I quote, crystal clear, employers cannot lawfully exclude men who identify as women from female only recruitment drives designed to address under representation of women in those particular fields.
>> I'd have to take that on notice, but that appears to be correct. Okay, that I
would appreciate that. Um, >> in light of the full federal court's finding that special measures under section 7D cannot come at the expense of transgender women or men who identify as women. What practical advice is the commission now giving to employers or government agencies running targeted female recruitment or promotion programs in maledominated industries?
As I said previously, there are measures through the sex discrimination act where uh men and women can be treated differently if the aim is to achieve substantive equality. So any individual situation will rely on an assessment of those circumstances
>> and would that require um an exemption to be applied for for those processes?
the under the sex discrimination act there are special measures as well as exemptions as I outlined previously.
>> Um how will someone know whether it's a special measure or an exemption?
>> As I said in my previous answer, they can contact the commission and we can explain the exemption process and one of the first steps of that is assessing whether or not an exemption is necessary.
>> Okay. So they so anyone who's doing this so say a engineering firm who's who's looking to hire more females they would need to get in touch with you first to figure out if they're able to do that.
>> Not necessarily. There are also provisions within the act itself for example which allow single sex spaces such as in schooling or in accommodation. So they don't necessarily need to seek advice on that if they read
the act. When you say that in terms of say accommodation or schooling, um are you saying that in in the case of schooling um where there is an exemption that's been applied so you can have a girl school and a boy school and and there's lots of cases of that um across the country. So you could have a school that can't if it's an all girls school that they can't enroll boys who identify as girls.
On our website, I've just been um refreshed that there is detailed guidance about the application of special measures. So anyone could seek assistance from reading through that on
the website. Correct. Okay. But in terms of where you where you're wanting single sex and I'm using your words here, single sex accommodation or single sex schools, are they single sex or if if it's say for accommodation for females, um could a man who identifies as a woman be included in that or would or would a workplace have to apply for an
If they are seeking to exclude someone on the basis of gender identity, then they would need to seek an exemption.
>> Okay. And that would be the same I'm assuming for
>> sorry I I would clarify that in relation to religious schools there is a an exemption provided to religious schools for on the that they can treat people differently or discriminate lawfully on the basis of sexual orientation, gender identity, sex, marital status.
Okay. So religious schools can't Okay. Um now I in the case of um Giggle v Tickle you appeared as a as a friend of the court in the matter. Can you confirm whether the commission's submissions aligned with the full court's ultimate conclusion that measures to promote equality for women cannot justify differential treatment on the ground of gender identity? And would you be willing to table those submissions?
The submissions that we made in the full federal court related to the understanding of section 7D and the understanding of special measures and how they functioned which includes the there's a range of special measure grounds within section 7D.
>> Yeah. Are you willing to table those submissions?
>> I'd have to take that on notice,
Senator. Certainly if you could and then >> would appreciate those being tabled. Um
>> Sorry, Senator. Those submissions are already public. They're on the federal
>> The submissions that you made,
>> correct?
given the um outcome of Giggle Vickle, [snorts] can employers still lawfully maintain single sex facilities, change rooms, recruitment processes restricted to biological females for reasons of privacy, safety, or competitive
There is a range. I refer to my previous answer, Senator. There is a range.
>> I know there are range, but I'm asking specifically on these. So, it's privacy, safety, or competitive fairness. So, I'm not
>> There is a different answer to each of those questions. There's about five questions within that one question. So, I would have to take it on notice and refer to that.
>> If you could, that would be very Senator Cash has previously questioned you on pregnancy protections applying to men who identify as women. Does the commission now interpret the act as requiring employers to treat men who identify as women identically to biological females in recruitment and pregnancy related decisions, even where biological differences are material?
That's speculating on a hypothetical scenario, Senator. I can't respond to
that. It's not speculating. I'm happy for you to take it on notice if you're not able, but I'm not asking you to speculate on a hypothetical. I know you've probably been coached to say that to things you don't want to answer.
>> Was there coaching involved? Were there any meetings in relation to how you should be answering questions prior to estimates?
>> Senator, of course, we prepare for Senate estimates every time.
>> Did you have any meetings in relation to how any of the commissioners would respond to questions?
>> Every Senate estimates, we have a meeting of all commissioners to prepare how we answer questions uh relating to.
Did you meet with anyone else other than the commissioners?
>> Uh we engaged a uh communications consultant to assist with this round of Senate estimates and I think we have previously as well.
>> You engaged a communications consultant?
>> Correct.
>> Did the taxpayer pay for that?
>> Yes, Senator.
>> What was the cost to the taxpayer of a communications consultant being engaged by the commission to help? Are you paid $550,000 a year >> or thereabouts?
>> You're talking about my own salary >> that's set by the remuneration tribunal. It's a salary of just under 500,000.
>> 500,000. You're telling me you needed what did you say? A communications consultant.
>> Correct. For one short session and I can take it on notice and provide the cost of that to the committee. Were there any
other meetings with anyone in this room in relation to how the commission might answer questions and estimates?
>> Um, I'm confused by the question, but no, >> sorry. I don't know who's sitting behind
>> in front of you.
>> In front of me. So,
>> the committee.
>> Oh, sorry. We had a meeting on last Monday with Senator Ble and Senator
>> in relation to
>> conduct of Senate estimates.