In the current debate over the 2013 Sex Discrimination Act amendments, former prime minister Julia Gillard has now made her first public comments about claims that her government “destroyed” women’s protections. Speaking at Manchester University, she told the audience that concerns about the issues now being raised “were not raised by anyone” when the changes to the Sex Discrimination Act went through parliament because “they simply weren’t a matter of public discourse the way they are today, so it was a different time.”
An honest reckoning with those times, and with the real effects of the 2013 amendments, is long overdue.
FOI and the missing Office for Women
In 2023, AAWAA made a Freedom of Information request to the Department of the Prime Minister and Cabinet seeking all material held by the Office for Women concerning the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. The request covered advice to the Prime Minister, the Attorney‑General and his department, parliamentary committees and individual MPs and senators, as well as any consultations with charities, NGOs and women’s groups undertaken in preparing that advice.
After searching its current holdings and legacy systems, the Department reported that it could locate no such documents in the Office for Women’s possession. So there it is. On the written record, there is no advice from the Office for Women on the 2013 amendments, no correspondence with the Attorney‑General’s Department, no parliamentary briefings and no documented consultation process.
That is a remarkable finding. On any serious reading of good governance, the Office for Women (formerly the Office for the Status of Women) in the Prime Minister’s own department should have been at the heart of the 2013 SDA amendments. But the amendments appear to have been driven by the Attorney-General’s Department, prompted perhaps by the AHRC’s 2009 paper (somewhat puerilely titled) Sex Files: the legal recognition of sex in documents and government records. That paper moved towards the language of ‘identity’ and self-declaration, centred “sex identity” and self‑identification, argued for easier amendment of legal sex markers on documents, and urged that the special needs of children and young people who wished to amend their records be considered — recommendations that have since shaped law reform across Australian states and territories.
While the full history of how we arrived here — including the AHRC’s part in it — remains to be written, one detail is telling. In 2013, the Commission’s submission to the Senate Legal and Constitutional Affairs Legislation Committee emphasised that the Sex Discrimination Act had been introduced to implement CEDAW and to “promote substantive gender equality”, and that the proposed amendments “do not amend the existing SDA objects” or the existing protections on grounds such as sex, marital status, pregnancy and breastfeeding. In other words, the Commission effectively told Parliament that the amendments would slot into an existing CEDAW‑implementing framework and would not, on their own terms, disturb women’s access to “special measures” that had been applied to female‑only exercise classes and other services.
That confident reassurance sits uneasily alongside the righteous certainty of the current Sex Discrimination Commissioner, who champions a gender‑identity reading of the Act and goes to contorted feats of illogical pedantry in order to treat women asking for clarity on sex‑based protections and rights as a problem to be managed.
So yes, Ms Gillard, you were poorly served by your own department in 2013, and by the wider bureaucracy, not least the Attorney‑General’s Department, which designed and steered the Bill through Parliament. Nor were you well served by colleagues in Parliament who agreed to have that Bill examined through hurried inquiries relying chiefly on written submissions rather than any sustained, critical testing of what these changes would mean for our sex‑based protections and rights. No substantive oral hearings, no cross-examination of witnesses. None of this excuses the decisions made in 2013. Being poorly served by advisers and colleagues does not erase responsibility for the consequences now falling on women; it does, however, show how deeply the governance failures ran. A serious inquiry, with women’s advocacy organisations at the table and a clear brief to interrogate the consequences for women’s sex‑based protections and rights, might have forced Parliament to confront those practical and legal implications before voting.
History is the story of unintended consequences
History is nothing if not the story of ‘unintended consequences’. The 2013 Bill was sold as a tidy inclusion of new protected attributes to protect LGB and intersex Australians from discrimination, at a time when Labor and other parties were still unwilling to recognise same‑sex marriage in law; and while Parliament may never have meant to vaporise women’s rights, in reality, the amendments have helped generate a decade of uncertainty in which women’s female-only spaces, services and sport have been chipped away case by case, and in which the language of ‘gender identity’ has increasingly overwritten the distinct realities of lesbians who are same‑sex, not ‘same‑gender’, attracted.
Mature democracies correct harmful ‘reforms’
But the thing about unintended consequences — bureaucratic foul-ups and bad law — is that in a mature democracy they can be corrected. Our political parties and institutions are not helpless passengers, here: parties can change policy, Parliament can amend bad law, and commissions can revisit positions that have proved unworkable or unjust.
Labor can take heart from its history on women’s protections and rights: the original Sex Discrimination Act in 1984; the 1995 amendments that strengthened special measures and substantive equality for women; and, in 2012, only months before the ill‑conceived 2013 amendments, the Workplace Gender Equality Act, which, like the Equal Opportunity (Commonwealth Authorities) Act, clearly and unequivocally defines ‘woman’ as a member of the female sex.
Liberal and National women can point to their role in sounding the alarm about the problems the 2013 changes have created in sport and other areas, and for more recent bills to clarify the sex-based protections in the SDA. There may also be a lesson in the 2006 cross‑party effort by women senators to overturn the RU486 veto: as that case shows, when women across party lines judge that bad law is hurting women, they can act together to change it.
In the meantime, courts have their own job to do. Under the common law principle of legality, courts must not interpret legislation as diminishing fundamental rights and freedoms, or as overturning established common law protections, unless Parliament has done so in unmistakable and unambiguous language. Parliament did not intend the 2013 SDA amendments to weaken women’s sex‑based protections and freedoms of association and, consistent with that principle, judges should not presume that outcome in the face of Parliament’s silence.
The parliamentarians of 2013 still have work to do
It might help if the Parliamentary generation of 2013, especially those who played key roles in considering the legislation, either by speaking to it in Parliament or serving on the hastily convened committees, explained what they thought they were doing at the time. Did they understand that the Bill would have far‑reaching consequences for women’s sex‑based protections and rights? Do they care that it has?
Those who spoke to the Bill — Mark Dreyfus, Michael Keenan, Michael Danby in the House; George Brandis, Gary Humphries, Sue Boyce, Arthur Sinodinos, Simon Birmingham and others in the Senate — and those who led or served on the committee inquiries — Graham Perrett, Judi Moylan, Penny Wright — should now be prepared to say what advice they relied on and what they understood the amendments would do.
Let’s get a civil, honest and constructive debate happening. That starts with candour — above all from Julia Gillard about what she knew, what she was advised and what she now thinks should be done — but also from her Attorneys‑General, and from every parliamentarian who waved these amendments through. Then we might finally be able to get on with the work of restoring women’s protections in law.