Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Australia (Ratification: 1973)

The Committee notes with interest the information provided in the report on the measures being taken to further the application of the Convention, not only at the federal level but also at the level of the States and territories.

1. The Committee notes the October 1994 decision of the Australian Industrial Relations Commission (AIRC) to include in a number of awards, a model clause which makes provision for the operation of the Supported Wage System - which facilitates the employment of workers with disabilities in the open labour market and protects them from exploitation. Having noted that other federal awards are being varied progressively to include the provisions and that, with the Government's encouragement, all States (except Western Australia) have adopted arrangements to enable the operation of this new system, the Committee requests the Government to provide data, when available, indicating the extent to which this measure has achieved its objective.

2. The Committee notes that, pursuant to section 150A(2)(b) of the Industrial Relations Act 1988, the AIRC has been undertaking a review of federal awards to remove discriminatory provisions and to encourage best practice approaches in human resource management to avoid both direct and indirect discrimination in the operation of awards. In this regard, the Committee notes that the Human Rights and Equal Opportunity Commission contributed to the review by preparing reports on both direct and indirect discrimination in federal awards. The Committee asks that the Government furnish information on the progress of the review.

3. The Committee requests the Government to provide information on the measures taken to implement the recommendations of the 1995 review conducted of the Commonwealth Employment Service operations, with the aim of better achieving the objectives of the Sex Discrimination Act, 1984. Please also provide information on the action taken with regard to any of the other recommendations made pursuant to the review of government policy advice mechanisms on the status of women, the outcome of which was announced by the Prime Minister in October 1993.

4. The Committee notes the information contained in the first and second reports (1993 and 1994) of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The Committee notes, in particular, that pursuant to a recommendation made by the 1991 Royal Commission into Aboriginal Deaths in Custody, the Office of the Commissioner has developed two schemes: the National Community Education Programme (NCEP) and the National Legal Field Officer Training Programme. Noting from the above-mentioned reports that difficulties are being experienced in implementing the NCEP - which appear to derive from, amongst other things, the reduced funding of anti-discrimination and equal opportunities agencies at the State and territory levels - the Committee hopes that future reports will indicate progress concerning this important initiative.

5. The Committee notes the decision of the High Court on 23 February 1995 in the case of Brandy v. Human Rights and Equal Opportunity Commission and Others which held that the provisions of the Racial Discrimination Act 1975 that had allowed the Human Rights and Equal Opportunities Commission to register it determinations with the Federal Court so that they may be enforced as orders of the Court, were invalid as they purported to invest judicial power in the Commission. According to the report, the result is that the actual determinations (including interim determinations) of the Commission under the Racial Discrimination Act, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Privacy Act 1988, are valid but, without the registration and enforcement mechanism, they are not binding or conclusive and cannot be enforced, except in the case of determinations made against Commonwealth agencies. The Committee has also noted the Attorney-General's intention to respond to the High Court decision, which involved amending the Human Rights Legislation Amendment Bill 1994 (subsequently assented to in June 1995) so as to restore the process by which, in the case of non-compliance with the Commission's determination, the Commission could commence proceedings in the Federal Court seeking an order for enforcement. In such situations, the Court would re-hear the matter. In addition, a longer-term solution would be developed by the Review Committee, which is reviewing the role and functions of the Commission. Noting that this Review Committee is expected to report to the Government on the issue by the end of 1995, the Committee requests the Government to provide information on the measures taken in this matter.

6. With reference to its previous observation, the Committee notes the Government's statement that, as the provisions of the Industrial Relations Act, 1988 are of limited application concerning discrimination on the ground of age, because they are confined to termination at the initiative of the employer, the Government is reviewing the use of age-based distinctions in its own policies and programmes with a view to possible legislative and non-legislative action in the future. Please furnish information on any action taken in this regard.

7. The Committee notes with regret that no information has been provided concerning the application of the Convention in Tasmania. It hopes that the relevant information will be provided in future reports.