Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 10 October 2018.

Articles 1 and 2 of the Convention. Legislative developments and enforcement. Gender equality. Federal level. In its previous comments, the Committee asked the Government to report on the amendments to the Fair Work Act 2009, the adoption of comprehensive anti-discrimination legislation at the federal level and on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) of 2015. The Committee notes the Government’s repeated indication in its report that the proposal to consolidate the five Commonwealth anti-discrimination Acts into a single comprehensive federal law was withdrawn and does not form part of the current Government’s policy. The Government adds that equality and non-discrimination continue to be protected and promoted through legislative, policy and programme measures, including legislative anti-discrimination protections at the Commonwealth, state and territory levels. The Committee notes the Government’s indication that the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) requires reporting from relevant employers on additional data including appointments, promotions and resignations, as well as the proportion of employees ceasing employment before returning to work from parental leave. Data on flexible working arrangements, as well as gender-specific access to parental leave and support for caring, continue to be collected. Referring to its 2019 observation on the application of the Equal Remuneration Convention, 1951 (No. 100), the Committee notes the Government’s indication that reporting provided for under the 2013 Instrument seems to have had a positive impact in practice. The Workplace Gender Equality Agency’s (WGEA) most recent 2016–17 dataset shows that the proportion of organizations with specific pay equity objectives in their remuneration policy and/or strategy has doubled over the last three reporting periods. The Committee asks the Government to report any new legislative developments or amendments made to the federal anti-discrimination laws, including the Fair Work Act 2009, as well as their application in practice. It asks the Government to provide information on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) and their impact in achieving effective equality of opportunity and treatment.

Article 1(1)(a). Discrimination based on religion. State level. Victoria. The Committee previously raised concerns about sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010, which provides exemptions to the prohibition on discrimination in the case of religious bodies and schools that conform to the doctrines, beliefs or principles of a religion, or when it is reasonable to avoid injury to the religious sensitivities of adherents to the religion. The Committee noted the Victorian Government’s commitment to amending the religious exemptions in the Equal Opportunity Act 2010. The Committee further notes that the Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 to that end. This will reinstate the “inherent requirement” test for employment by a religious body or religious school, which had previously been removed. The Committee, however, notes that the Bill passed the Legislative Assembly in September 2016, but was defeated in the Legislative Council in December 2016 and that as a result the “inherent requirement” test for employment by a religious body or religious school has not been reintroduced. The Committee asks the Government to indicate how it is ensured that sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010 do not, in practice, hinder the enjoyment of equality of opportunity and treatment in respect of employment. The Committee also asks the Government to continue to provide information on any amendments envisaged to the Equal Opportunity Act 2010 with a view to bringing the provisions regarding religious exemptions into conformity with the Convention by establishing an “inherent requirement” test.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. Federal level. For a number of years, the Committee has been expressing concern regarding restrictions on the rights of indigenous peoples to land and property recognition and use. It previously noted that the Council of Australian Governments (COAG) conducted an investigation into indigenous land administration and use and, in its December 2015 final report, made six key recommendations to take forward this agenda, including many proposed amendments to the Native Title Act 1993. The Committee notes the Government’s indication that it is developing a package of native title reforms to improve the efficiency and effectiveness of the native title system for all parties, including by: focusing on improving claims resolution; coming to agreements around the use of native title land; and introducing measures to promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes. The Government indicates that, as of November 2017, approximately 79 per cent of native title determinations had been made by consent (406 determinations made in total). The Government adds that a paper seeking stakeholders’ views on options for reform was released on 29 November 2017 and that feedback from stakeholders will inform the development of a draft Native Title Amendment Bill. The Committee however notes that several United Nations (UN) Treaty Bodies remain concerned about: (i) the high standard of proof required to demonstrate an uninterrupted connection to the area being claimed, and a continued practice of their traditional laws and customs; and (ii) the extreme difficulties in obtaining compensation under the current native title scheme for those people who had their native title extinguished. The Special Rapporteur on the rights of indigenous peoples expressed further concerns at the complex system, with multiple and overlapping legal regimes applicable to native title claims and land rights at the federal, state and territory levels (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 51; CERD/C/AUS/CO/18-20, 26 December 2017, paragraph 21; CCPR/C/AUS/CO/6, 1 December 2017, paragraph 51; A/HRC/36/46/Add.2, 8 August 2017, paragraph 99; and E/C.12/AUS/CO/5, 11 July 2017, paragraph 15). The Committee asks the Government to provide specific information on any progress made in the review and adoption of the draft Native Title Amendment Bill, in collaboration with indigenous peoples and other relevant stakeholders. It asks the Government to provide information on any other steps taken to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations and access employment without discrimination.

Article 2. Equality of opportunity and treatment of indigenous peoples. Constitutional recognition. The Committee recalls the steps undertaken to examine, raise awareness and build support for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, including the adoption of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. It previously noted that while the Referendum Council, established to give advice on Aboriginal and Torres Straight Island peoples, called for constitutional recognition of indigenous peoples, the Government had rejected this proposal. The Committee notes the Government’s statement that it remains committed to recognizing Aboriginal and Torres Strait Islander peoples in the Constitution, but does not believe that the Referendum Council’s proposal to provide for a national indigenous representative assembly to constitute a ‘Voice to Parliament’ is either desirable or capable of winning acceptance in a referendum. The Government indicates that the Commonwealth Parliament’s Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples was appointed in March 2018 and will consider the recommendations of the Referendum Council (2017), the Uluru Statement from the Heart (2017), the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012). The Committee asks the Government to continue providing information on the status of the process of specifically recognizing Aboriginal and Torres Strait Islander peoples in the Constitution.

National policy and programmes for indigenous peoples. The Committee previously noted the “Closing the Gap Strategy”, which is a formal commitment by federal, state and territory governments to achieve equality for Aboriginal and Torres Strait Islander peoples within 25 years. However, it noted from the 2017 assessment report that the employment target was not being met, and that while there had been an increase in the employment rate of indigenous peoples since 1994, there has been a decline since 2008. The Committee notes the Government’s indication that it is on track to meet three out of seven of the current “Closing the Gap” targets and that all Australian governments are working together, in consultation with Aboriginal and Torres Strait Islander peoples, to update the “Closing the Gap” targets. The Government adds that, between November 2017 and April 2018, “Closing the Gap Refresh” hosted a special gathering of indigenous representatives, conducted 18 national round tables and held a series of workshops, presentations and meetings. Over 1,000 stakeholders have participated in these consultations. The Government indicates that a public submission process closed on 30 April 2018 with over 170 submissions received and that, based on these consultations, Commonwealth, state and territory officials worked with indigenous academics, experts and practitioners to draft potential targets. The Committee notes that the COAG will consider “Closing the Gap” targets at its next meeting.

Concerning indigenous employment initiatives, the Committee notes the reference made by the Government to several specific initiatives aimed, inter alia, at enhancing indigenous people’s access to employment and vocational training, such as the Employment Parity Initiative (EPI) which encourages large employers to enter into a parity partnership with the Government to increase the proportion of indigenous employment, as well as to use indigenous businesses in their supply chains. The Government adds that specific affirmative measures have been implemented to expand the range of indigenous employment opportunities in the public sector, including in the framework of the Australian Public Service Commissioner’s Directions 2016 and the Commonwealth Aboriginal and Torres Strait Islander Employment Strategy. While welcoming this information, the Committee notes that the ACTU remains concerned that work-related discrimination against indigenous peoples is not being properly addressed by the current governmental scheme. The ACTU also highlights that, according to a recent survey, 9 per cent of Australians aged 25–44 would not hire an indigenous person for a job and 22 per cent do not see this as an act of discrimination. The ACTU expresses specific concern about the Community Development Programme (CDP), which aggressively targets indigenous people, who represent 80 per cent of CDP participants. The ACTU indicates that, according to the Australia Institute, the programme is not generating employment, as less than 20 per cent of CDP participants are supported into a job and less than 10 per cent stay in that job for six months. The trade union further expresses concern at the fact that CDP participants are typically required to work 25 hours a week for 280 Australian dollars (AUD) or AUD11.20 per hour, while the hourly minimum wage was AUD18.93 in 2018. The ACTU highlights that recipients receive even less if penalties for non-compliance are incurred, which is a common occurrence, and asks the Government to end this programme. The Committee notes that several UN Treaty Bodies express further concern at: (i) the low level of implementation of the “Closing the Gap” targets; (ii) the low level of school attainment and high drop-out rates at all school levels; as well as (iii) the high unemployment rate among indigenous peoples (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 51; A/HRC/38/47/Add.1, 17 April 2018, paragraph 47; CERD/C/AUS/CO/18-20, 26 December 2017, paragraphs 17 and 23; A/HRC/36/46/Add.2, 8 August 2017, paragraphs 11, 46, 54 and 57; E/C.12/AUS/CO/5, 11 July 2017, paragraphs 15 and 51; and A/HRC/35/41/Add.2, 9 June 2017, paragraphs 40, 48 and 51).

State level. The Committee notes the range of initiatives being undertaken in some of the states and territories to promote equality of opportunity and treatment of indigenous peoples and to address discrimination. The Committee notes that several states, such as Queensland, New South Wales, Victoria and Western Australia, are implementing affirmative actions to enhance the employment of Aboriginal and Torres Strait Islander peoples in the public sector, in particular in senior positions. It further notes that, within the framework of Queensland’s Annual Vocational Education and Training (VET) Investment Plan, several programmes have been implemented to enhance access to vocational education and training for indigenous people. The Committee notes the release in 2017 of the “Tharamba Bugheen” Aboriginal Business Strategy 2017–21 in Victoria, which aims to strengthen the entrepreneurial culture and to advance the economic position of aboriginal Victorians, as well as improving the visibility and networks of aboriginal businesses.

In light of the failure to meet the employment targets and the persistent disadvantaged position of indigenous peoples in education and employment, the Committee asks the Government to pursue its efforts and provide information on any assessment carried out on the impact of the different measures undertaken to enhance indigenous peoples’ access to the labour market, as well as on any corrective measures taken as a result, in particular to address the concerns expressed regarding the Community Development Programme. It asks the Government to provide information on any revision made of the “Closing the Gap Strategy” targets, in collaboration with indigenous peoples and other relevant stakeholders, as well as on any progress made in meeting these targets, in particular concerning employment. The Committee asks the Government to continue providing detailed information on the policies and programmes implemented to address discrimination and promote equality of opportunity and treatment in employment and occupation for indigenous peoples at the federal, state and territory levels, as well as on their impact.

The Committee is raising other matters in a request addressed directly to the Government.