Paid parental leave punt

Only a few days out from the delivery of the May budget media reports suggest that the Government is still ducking and weaving around the calls for paid parental leave. But there may be a way of forcing them to face the issue.

Australia has long been a signatory to the Convention for the Elimination of All Discrimination Against Women (CEDAW). In December 2008 it acceded to the Optional Protocol to that Convention. The Protocol contains a procedure for a person to lodge a complaint with the CEDAW Committee claiming that her rights under the CEDAW treaty have been violated. The communications procedure entitles individuals or groups of individuals, who fulfil certain preconditions, to submit communications or petitions in which they claim to be victims of violations of any of the rights set forth in the Convention by a State party.

Having signed the Optional Protocol under the Convention for the Elimination of All Discrimination Against Women (CEDAW) - the complaints mechanism for the CEDAW - what the Government seems to have overlooked is its potential exposure to an action under that Convention by or on behalf of Australian women exasperated by the likely failure of the Rudd Government to make good its promise to introduce paid parental leave.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. It defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

When signing or ratifying an international treaty, a country can make a reservation to one or more provisions of that treaty. This is a unilateral statement which effectively excludes the country from any obligation related to that provision, although it remains open to the country to remove its reservations when it wishes to commit to those rights.

Australia has two reservations to CEDAW. One relates to paid maternity leave.

On one view Australia's reservation does restrict the availability of the Optional Protocol procedures to potential complainants. But on the other hand, when considering a claim relating to the provisions of CEDAW that are the subject of a reservation, the Committee on the Elimination of Discrimination against Women, the body which deals with complaints, itself examines the reservation to determine whether it is incompatible with the object and purpose of CEDAW.

The Committee (PDF 46KB)considered the issue of reservations at its 41st session and discussed the case of Kennedy v Trinidad and Tobago, in which a State Party's reservation was set aside.

Is Australia's reservation inconsistent? If it is put to the test it may well be found to be.

In response to the Howard government's Combined Fourth & Fifth Periodic Report, the CEDAW Committee has already expressed its clear concerns (PDF 48KB)about the lack of a national system of paid maternity leave.

We are yet to receive the Committee's response to the Rudd Government's combined 6th and 7th Periodic Report. Prepared in October 2008, it postdates and lends the lie to the Prime Minister's September comment that “It's time to bite the bullet” on paid parental leave because it maintains Australia's paid maternity leave reservation.

Salma Khan, a Former Member & Chairperson of the CEDAW Committee, has said that “reservations” are meant to be temporary. When Australia ratified CEDAW 25 years ago, the Australian Government expressly refused to agree to provide paid maternity leave for Australian women.

Australia's official position of acceding to the Optional Protocol so long ago, and a quarter of a century later still withholding these rights from its people by its exemption, surely will now be tested if Mr Rudd doesn't come good on his promise. No doubt unions, women's organisations and NGOs will explore that question, if they haven't already done so.

If the Government's paid maternity leave reservation is not a valid exemption, it is probably possible (PDF 13KB) for an action to be brought.

There are several preconditions before the CEDAW Committee will consider a case. The first is who may submit the case. A communication can be submitted directly by the victim or group of victims whose rights under CEDAW have been violated or by other individuals or groups filing on behalf of the victims.

An important second requirement is that existing national remedies have been fully utilised. The difficulty for the Australian Government is that the requirement has recognised exceptions, and the Committee may waive the exhaustion requirement if no effective remedies exist. Not surprisingly, Australia probably is just such a place.

Recent submissions to the Senate Standing Committee on Legal & Constitutional Affairs Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality noted (PDF 858KB) the absence of any maternity leave legislative requirements.

Isn't this suggesting that that no domestic remedy exists?

The current economic crisis may not be the fault of the Rudd Government, but there have been several economic highs and lows since 1983 and plenty of opportunities of letting go of the exemption.

And there have been plenty of calls for paid maternity leave to be given to Australians, among them the 1999 National Pregnancy and Work Inquiry, Pregnant and Productive: It's a right not a privilege to work while pregnant; the 2002 report A Time to Value: Proposal for National Maternity Leave Scheme, which reported overwhelming public support for a national paid maternity leave scheme; the 2007 It's About Time: Women, men, work and family which reiterated the priority need for a national paid maternity leave scheme; and the very recent 2009 Productivity Commission report. Recent independent economic modelling has shown that we can afford it and yet still Australians wait.

It's not as though the Government doesn't know about its obligations under CEDAW, either.

The Human Rights and Equal Opportunity Commission submitted to the Senate Legal and Constitutional Affairs Committee that ... “It is also widely acknowledged that the Sex Discrimination Act (SDA) has never fully implemented our international legal obligations, particularly under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women”.

It seems to me that the end result of all that is that Australia is well and truly signed on to the CEDAW Optional Protocol and that its only shield from an aggrieved person with standing is a potentially invalid reservation.

In a country without universal government funded paid parental leave, with a significant gender pay gap, with one of the lowest labour force participation rates of OECD countries for women aged between 25 and 44 years, where women bear the most responsibility overall for unpaid work to the detriment of their own personal economic security , with the Australian Bureau of Statistics figures confirming that one in three Australian women will suffer domestic violence and one in five will fall victim to a sexual assault, in the midst of a worsening global economic crisis and where limited or no legal remedies exist for aggrieved persons, I would have thought it shouldn't be too difficult to find complainants who, both as individuals and a group, are personally and directly affected by laws, policies, practices, acts or omissions of the Government in relation to paid maternity leave which violate their rights under the CEDAW Convention.

An important third precondition to taking advantage of the Optional Protocol is the requirement that “a communication” must refer to facts which occur after the entry into force of the Optional Protocol. If the foundational facts have occurred before the Protocol came into force, a complaint regarding them is inadmissible, unless these facts continued after that date. The Optional Protocol enters into force three months after ratification or accession.

Australia only acceded to the Optional Protocol in December 2008, but it's now well and truly "in". So a failure to introduce government funded paid parental leave in the May 2009 budget may well see things heat up in the second half of this year.