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Australia's Bow to Injustice
by Dr. Jocelynne A. Scutt

Lieutenant-Colonel Martha McSally has at least partly won her struggle for women's rights and religious freedom. In a policy reversal, the United States military says it will no longer require female troops in Saudi Arabia to wear the abayah off-base. Saudi Arabian women wear this long, robe-like garment, whether by choice or imposition. American women were expected to do the same, the principle apparently being that in a foreign country women must obey foreign standards. The same principle does not apply to men.

Even with the announced change of policy, the U.S. military rule requiring servicewomen to obey an oppressive law is not reversed. The new policy simply makes wearing an abayah discretionary, while other repressive regulations remain. U.S. military women can choose to leave the robe off, but they are still banned from driving, sitting in the front seats of vehicles, and leaving the base unless in the company of men.

Lieutenant-Colonel McSally is taking her case through the courts, suing U.S. Defense Secretary Donald Rumsfeld. Her argument is that the compulsory rules discriminate against women and violate their religious freedom. The case is likely to go to the Supreme Court.

Where would Australian women stand in similar circumstances?

In Australia, women fighting sex/gender and religious discrimination would ultimately end in the High Court. But it is unlikely women would win.

The Australian High Court's approach is that restrictive standards imposed in other countries on their own people apply to Australians whatever our rights under Australian law. This can affect both women and men. However, women are far more likely to be the targets of religious and secular repression, and are far more likely to be disadvantaged by the ruling.

In 1999, the High Court set this precedent by giving imprimatur, or official sanction, to age discrimination in a case that has potentially troubling consequences unless some brave soul challenges it. When Mr. John Christie complained that Qantas had wrongly terminated his employment as a pilot, Australia's age discrimination laws went into a tailspin. The Court endorsed the “Rule of 60” in the Convention on International Civil Aviation to uphold Mr. Christie's dismissal. Under the Convention on International Civil Aviation, pilots aged 60 years or older are not allowed to pilot international flights.

Domestically, Australia does not apply the “Rule of 60.” The Convention is irrelevant to Australian airspace on this point, and there is no restriction upon Mr. Christie working as an international pilot according to Australian law.

But the Court said that because some countries exclude from their airspace any aircraft flown by 60-year-old pilots, and some do not allow 60-year-old pilots to land, Qantas could refuse employment to 60-year-olds and terminate any who reached that age. This was regardless of their qualifications, health, medical records and abilities. “The best person for the job,” said the Court, could not be measured by reference to Australian law or personal and professional capacity, but according to the most restrictive law applicable in countries outside Australia.

Thus, Qantas was entitled to get rid of Mr. Christie altogether. Never mind that he could have flown into Bali and Aotearoa/New Zealand and, if the route were altered, Fiji. Never mind that rosters might, with good sense applied, be organised so that he could carry out his international air traffic duties without infringing on the rule.

It was an “inherent requirement of the job” of international pilots, said the Court, to be able to fly to all of Qantas international destinations. Because the “Rule of 60” said he couldn't, the sack was fair enough.

Mr. Christie stands abandoned by Australian laws, and subject to age discrimination imposed by foreign law. Qantas stands supported by Australia's highest court in its endorsement of discrimination that is unlawful in this country.

And what does the argument say for women? Extending High Court wisdom, the Department of Foreign Affairs can say it is no longer required to appoint women as ambassadors based on merit. But shouldn't foreign affairs employees in the ambassador stream be able to serve anywhere in the world? Would female diplomats from Australia and elsewhere not be welcomed by Afghan women? According to our High Court, because men in foreign high places, Afghanistan amongst them, might choose not to speak to them, women diplomats will not only be ruled out of order in such foreign nations, but could be precluded from the chance in the first place.

The High Court decision gives imprimatur to repressive regimes that refuse to have women at high levels of government, or demand their silence at the table. How then can women argue their entitlement to an ambassadorship in Saudi Arabia, Kuwait, or Afghanistan? And if they cannot serve there, can they be denied foreign affairs employment at all as unable to fulfil an “inherent requirement” of the job?

What of women in any international company? Can women be refused partnerships in law firms because they have branches in countries where women don’t even have the right to an education, much less the right to qualify in law? Is it an “inherent requirement” that a driver for an international travel agency be able to drive in any country? If so, the Saudi Arabian rule precluding women from holding a license will rule Australian women out of Australian international travel agency jobs. Is it an “inherent requirement” that an accountant in an international firm be able to travel independently to work, as well as take on all clients, including firms run by men who believe that mathematical brains exist only in male craniums? Shouldn't women in international oil conglomerates be equipped to work on oilrigs anywhere, in functional dress, or women in international public relations and advertising be “inherently able” to work without restrictions limiting their movement?

Our law might say yes, but if a foreign country’s laws say no, the Australian High Court has determined that women must submit to discriminatory laws.

As for the military? Well, however difficult it is for Lieutenant-Colonel McSally, she is at least lucky that her case will be determined by the U.S. Supreme Court rather than Australian courts. Women in the U.S. may have a long way to go, but their highest court may well rule in favor of the basic human right to be free of sex and religious discrimination, even in countries where injustice continues to be the law.

Jocelynne Scutt is a Barrister and Tasmania's Anti-Discrimination Commissioner

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