Australia’s Reservations to CEDAW – Irrelevant and Unnecessary

By Holly Kendall
1983-CEDAW-logo

By Holly Kendall. This piece is part of our September focus on Women’s Rights. See all of this month’s articles here.

In 1983 Australia was one of the first countries to ratify the Convention on the Elimination of Discrimination Against Women (CEDAW). This is to be expected of a liberal democracy that purports to uphold the rights of all people. At the time Australia entered two reservations to CEDAW. These were in relation to paid parental leave and the employment of women in combat or combat-related positions in the defence force. Justification for the reservations, which exclude the legal effect of the those parts of the treaty, included a lack of resources to provide paid parental leave and the inability to protect women in combat.

Australia’s reservations to CEDAW are a reflection of their time and are no longer relevant. There is now an economic imperative to increase the participation of women in the work force, and a defence imperative to increase the participation of women in combat. Removal of the reservations should be accompanied by the implementation of measures to create substantive equality. These measures would reassert Australia as a nation of equality of the sexes.

Article 11 of CEDAW says “State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment”. It specifies action to be taken in the field of employment which include providing the same employment opportunities, use of the same selection criteria and the introduction of paid maternity leave or comparable social benefits.

Australia’s reservations state:

“it is not at present in a position to take the measures required … to introduce maternity leave with pay or with comparable social benefits throughout Australia”.

And:

“The Government of Australia advises that it does not accept the application of the Convention insofar as it would require alteration of Defence Force policy which excludes women from combat duties.”

The Committee on CEDAW, the previous and current Sex Discrimination Commissioners, as well as many others, have called for the revocation of Australia’s reservations to CEDAW. The reservations are contrary to current Australian Government policy.

The Paid Parental Leave Act 2010 provides the minimum wage to women who have been working at least one day a week for 10 out of 13 months before their baby arrives and earn less than $150,000 a year. Though the Opposition did not support the Labor Party’s paid parental leave model they have proposed the introduction of a competing model. The Coalition’s model would provide mothers with 26 weeks paid parental leave, at their full replacement wage (up to a maximum salary of $150,000 per annum) or the Federal Minimum Wage, whichever is greater. These two policies suggest that Australia is now in a position and has taken the measures to introduce maternity leave with pay throughout Australia.

Removing the reservation to CEDAW to provide paid maternity leave at the moment would be symbolic but it would also demonstrate an international commitment that would be difficult for future governments to repeal.

The provision of paid parental leave is important in increasing national productivity. In 2009 the Productivity Commission found that the provision of paid maternity leave increased women’s engagement in the workforce. We must increase the retention of female workers to increase productivity. As a result it is an economic imperative that the Australian Government takes measures to increase women’s participation in the workforce.

In 2011, the Minister for Defence and Minister for Defence Science and Personnel announced the government would remove “gender restrictions from Australian Defence Force combat roles”. This is to be fully implemented by 2016. Previous restrictions related to a small number of positions; 2.2 per cent of roles in the Navy, 2.4 per cent of roles in the Air Force and 14.6 per cent of roles in the Army. The implementation is being supported by the introduction of physical employment standards that do not discriminate on the basis of gender. Any individual that meets the physical requirements of a position will be eligible.

The reservation on the employment of women in the Australian Defence Force was amended by the Howard Government in 2000. As a result it is likely that the removal of all gender restrictions on employment in the Australian Defence Force would continue under a Coalition Government.

The Defence Force restrictions fail to reflect the changing nature of warfare. Many positions that are considered “non-combat” carry similar risks to “combat” roles. Technological advancement and strategic developments mean that the front line is everywhere in a combat zone. Being on the front line is a risk whether you are in a “combat” or “non-combat” position. This demonstrates that the paternalistic philosophy of protecting women no longer operates. In practice as a society we have given women the freedom to choose to protect their country and participate in conflicts. The distinction of non-combat and combat-related roles is arbitrary and women should be given the same freedom as any man to serve and protect their country.

Removal of the restrictions is not just about equality; it is necessary to facilitate sufficient recruitment to the Australian Defence Forces to ensure its capacity to defend Australia. It also creates a better working environment for women in the Australian Defence Force. It removes a gender distinction that is drawn within the Force that can be perceived as preferential treatment. The removal opens up combat positions to women – such positions are often seen as an essential element of leadership, which is required for career advancement.

Removing the Australia  reservations to CEDAW would reinforce and cement the achievements of the government in reducing discrimination against women. It would then be difficult for future governments to remove paid parental leave or restrict the roles in which women could serve in the Australian Defence Forces.

The removal of the reservations would contribute to the development of formal equality, but this must be supported by measures that create substantive equality. Even though the law prohibits discrimination it still exists. Enforcement action should be taken against employers who discriminate against pregnant employees. Assistance should be provided to businesses to create flexible workplaces where employees can balance work and family commitments. The paid parental leave scheme could be improved by including superannuation contributions and expanding it to fathers. Women should enter previously all-male units in the Defence Force as a group and leadership needs to be supportive of the role and contribution that women can make to their unit.

Australia’s reservations to CEDAW are out of step with current government and opposition policies. Maintaining the reservations is a contradiction that should be rectified. The removal of the reservations and the development of policies and mechanisms to encourage female participation in the workforce and defence force would be beneficial to the economy and increase our defensive capacity. There is no justification to maintain the outdated reservations.

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