Date of Award
2024
Degree Name
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Degree Name
Master of Laws (by research)
Schools and Centres
Law
First Supervisor
Anthony Keith Thompson
Second Supervisor
Greg Walsh
Abstract
The external affairs power under the Australian Constitution gives the Commonwealth Parliament the power to pass legislation that implements the obligations in bona fide treaties to which Australia is a party, provided that the legislation is reasonably appropriate and adapted to that purpose.
The Sex Discrimination Act 1984 (Cth) (‘SDA’) was passed to implement the UN Convention on the Elimination of All Forms of Discrimination Against Women (1981) (‘CEDAW’). There has never been any serious doubt that the SDA, as originally passed, is a valid law with respect to external affairs. The SDA was progressively amended to prohibit discrimination on the grounds of other sex-related attributes, such as pregnancy, and to state that it gave effect to other UN treaties, including the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) and the International Covenant on Social Economic and Cultural Rights (1966) (‘ICESCR’). These treaties in particular prohibit discrimination on a wider range of grounds compared to CEDAW, including the ground of ‘other status.’
The Rudd/Gillard Government amended the SDA in 2013 to prohibit discrimination on the grounds of sexual orientation, gender identity and intersex status. These amendments did not implement any obligations in CEDAW and instead were said to be constitutionally justified by the parts of the ICCPR and ICESCR that prohibit discrimination on the ground of ‘other status.’
The difficulty is that in 1966 – when the ICCPR and ICESCR were opened for signature – ‘other status’ did not include the modern notion of gender identity as defined in the 2013 amendments to the SDA. There are thus questions about whether the Commonwealth Parliament had the constitutional power to pass this legislation, even though the validity of those amendments has not been challenged in the High Court.
This thesis reviews the constitutionality of the 2013 amendments by considering the relationship between the external affairs power and evolutionary or progressive treaty interpretation, which is an issue that the High Court has not yet had to address. That leads to the question of whether evolving international definitions of ‘other status’ – which are not necessarily consistent with its original meaning from 1966 – will see the High Court decide to uphold legislation that relies on a progressive interpretation of a historical treaty.
Publication Details
Anderson, J. P. (2024). Law and Identity: Whether the 2013 Amendments to the Sex Discrimination Act are Laws with Respect to External Affairs [<-- Please Select One -->]. The University of Notre Dame Australia. https://researchonline.nd.edu.au/theses/473