Talking the Talk: Providing Protections from Discrimination to Women Seeking Combat Roles

On 20 March, 2017, a treaty was tabled with the Commonwealth Parliament’s Joint Standing Committee on Treaties (JSCOT), proposing the withdrawal of one of Australia’s two reservations to the 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). This reservation excludes the effect of the Convention insofar as it would require the Australian Defence Force (ADF) to change its policy excluding women from combat duties. The withdrawal of this reservation is a very welcome development in Australia’s approach to sex discrimination, and brings Australia in line with the broad aims of the Convention, by foreclosing the possibility that policy may allow service and promotion in combat roles to be dictated by sex, rather than ability.

Policy Development and the Legal Protections to Match
This treaty action reflects recent policy developments within the ADF. There have been no sex-based restrictions in ADF combat roles since January 2016, following a five-year process implementing the policy which began in September 2011. The introduction of women into combat roles in Australia follows a recent trend in industrialised countries, and, if anything, is a long time coming: since 2001 (and in some cases even earlier), women could serve in combat roles in Belgium, Canada, Denmark, France, The Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, and Sweden, among others.
This policy shift has made Australia’s reservation to the CEDAW redundant, and its withdrawal has a strong symbolic effect in confirming this new policy direction. The effect of the reservation was to limit the scope of Articles 11(1)(b) and (c) of the CEDAW, which provided for an equal right to employment opportunities and choice of profession between men and women. The application of the full scope of Article 11 requires Australia to take the appropriate measures to enforce these rights in the case of women being recruited into combat roles.
Notably, the change in ADF policy on its own is insufficient to provide the protection from employment discrimination envisaged by the CEDAW, as it merely creates the potential for women to take on these roles. Indeed, s 43 of the Sex Discrimination Act 1984 (Cth) continues to provide an exception to the protections of that Act in regard to the employment of women in combat roles. This shortfall will hopefully be remedied by the Civil Law and Justice Legislation Bill 2017, which repeals this section. This bill is currently passing through Parliament, and its passage would be welcome as a further confirmation of Australia’s adherence to the obligations and aims of the CEDAW.
Applying the Australian Model Abroad
Australia’s approach here can serve as a model for other countries that have made similar developments in military policy, but that still require updated legal frameworks that reflect this policy and provide the relevant anti-discrimination protections. This is most pertinent to the only two other countries that still hold explicit reservations to the CEDAW in regard to women seeking combat roles, namely, New Zealand and the United Kingdom.
New Zealand has been a leader in anti-discrimination military reform since it removed all limits on women serving in combat roles through subordinate legislation in 2001. Further, in 2007, the New Zealand Parliament repealed s 33 of the Human Rights Act 1993, which created an exception from the protections for “preferential treatment based on sex” in regard to those seeking combat roles in the Armed Forces. However, New Zealand still holds a reservation to the CEDAW, which states that the Convention will not apply as far as it is inconsistent with policies relating to combat roles. New Zealand should follow Australia in withdrawing this now-redundant reservation, and taking on the full obligation in Article 11: such a move would update New Zealand’s position at international law to reflect domestic policy and legislative changes, and would allow the relevant international protections to apply.
The UK announced that it would lift its exclusion of women from combat roles in July 2016, and monitor the benefits of the policy as it was implemented over the next three years. However, the UK’s legal position still reflects the older policy. Its reservation to the CEDAW excludes from the effect of the Convention “any act done for the purpose of ensuring the combat effective of the Armed Forces of the Crown”, which allows the UK to adjudicate on the combat effectiveness of women purely on the basis of their sex. Further, this reservation is broader than Australia’s, as it allows sex-based discrimination to subsist even where there is a shift in policy. Similarly, Schedule 9 of the Equality Act 2010 in the UK’s domestic legislation explicitly creates an exception from discrimination protections: the Armed Forces may require an applicant be a man in order to take on a combat role, if it can be shown that this restriction is “a proportionate means of ensuring the combat effectiveness of the armed forces”. This provision allows future policy decisions to backtrack on the lifting of the exclusion, as there would be no preventative legislative protection, apart from the Armed Forces having to demonstrate proportionality. The UK must update its legal framework if it is to pursue this shift in policy: this would entail the termination of the effect of both the reservation and the relevant legislation, following Australia’s model.
Overall, the withdrawal of this reservation and the imminent repeal of the relevant Commonwealth provision are timely changes in Australia’s legal position: the CEDAW and the Sex Discrimination Act 1984 may now provide the full set of envisaged protections to women wishing to serve in combat roles, and these protections reflect current ADF policy. This withdrawal should prompt New Zealand to take a similar treaty action to confirm their prior developments in this area, and should serve as a model for legal reform in the UK as it follows the same policy direction over the next few years.