Promoting Women in Leadership

Launch of the UN Women Report Progress of the World’s Women: In Pursuit of Justice in Sydney

Speech by the Hon Catherine Branson QC, President of the Australian Human Rights Commission

Thursday, 7 July 2011

Acknowledgement

Let me join those who have spoken before me in acknowledging the traditional owners of the land on which we meet, the Gadigal people of the Eora nation. I pay my respects to their elders past and present, and to Aboriginal and Torres Strait Islander leaders we have with us tonight.

Introduction

Thank you very much to UN Women Australia for inviting me to be with you this evening, and thank you to Michael Rose of Allens Arthur Robinson for hosting this event. I also acknowledge that we have with us tonight several members of parliament, members of the Australian legal fraternity and many supporters of gender equality here in Australia.

I am honoured to have been invited to launch this Progress of the World’s Women report.

As a woman whose career has involved stints as a legal academic (albeit a junior one), a solicitor, a legal researcher, a government lawyer, a barrister, a Federal Court judge and now a human rights practitioner, I am delighted that this year’s report focuses on the role of women in justice systems. I have long believed that equality for women cannot be achieved without women assuming leadership roles, in more than tokenistic numbers, in all aspects of the administration of justice. Throughout the world, including in Australia, we are still in the process of seeing this aspiration realised.

The report that we celebrate this evening contains a cogent analysis of the ways in which justice systems continues to fail women – but, perhaps more importantly, it also identifies ways in which women around the world have been using justice systems as tools for their own empowerment. With the advent of UN Women and the adoption of its 2011-2013 Strategic Plan just last week, the report also makes a timely call for the promotion of women to leadership roles.

I do not have time this evening to do justice to the rich content of this report. I will try, however, to outline some of the key points and findings of the report emphasising topics of particular relevance to Australia.

Key Points of the Report

The report begins with an outline of cases from all around the world in which women’s rights have been upheld. It highlights how women are using strategic litigation, including before human rights tribunals and treaty bodies, to attain justice at both the individual and systemic levels.

We can read of the case brought against Austria on behalf of two women murdered by their husbands after repeated failures by law enforcement and judicial officers to detain the men despite their breaches of protection orders. The CEDAW treaty body found against Austria - usefully reminding us that the obligation on all states to protect women from domestic violence extends beyond passing laws to ensuring that those laws are properly implemented.

We can also read in the report the inspiring, and I think to this audience probably well-known, story behind the decision of the High Court of Botswana in Unity Dow v Attorney-General of Botswana. A number of us were privileged to hear the former Justice Unity Dow tell this story at the UN Women’s International Women’s Day Breakfast this year. Before she was appointed a judge, Unity challenged the law of Botswana that rendered her children non-citizens in Botswana because she had married a foreigner. As a consequence her children were not entitled as of right to live in Botswana, they could only travel on her husband’s passport, and they would not enjoy the other benefits of citizenship such as access to free university education. Unity successfully argued that the guarantee of equality in the constitution of Botswana rendered invalid the discriminatory citizenship law. This case is, I suggest, a timely reminder of the value of constitutional equality clauses as means of exposing and challenging long-standing and discriminatory legal norms.

However, as we know, and as the report acknowledges, legislative change is just one side of the coin of women’s interaction with the justice system. While a legal and constitutional framework that guarantees women’s rights is fundamental to women’s access to justice, it is not of itself sufficient. Governments must also assume responsibility for the impact of their laws.

The report illustrates this important point in a number of ways – including by examining the responsibilities of governments to ensure substantive equality for women in formal employment. When I read this part of the report I naturally thought of the case, which I will return to shortly, recently brought by the Australian Service Union seeking an equal remuneration order in respect of the largely female social and community services industry. The report notes the significant expansion in recent years of women’s rights in the area of formal employment, as illustrated by 117 countries passing equal pay laws, 173 countries guaranteeing paid maternity leave and 117 countries outlawing sexual harassment in the workplace. Indeed, Vietnam has adopted as a special measure the legal requirement for an employer to give preference to a woman who satisfies all recruitment criteria for a vacant position in an enterprise!

Nonetheless, the report notes that gaps in employment laws, lack of enforcement and inadequate policies including with respect to childcare, continue to limit women’s employment prospects.

More generally, the report makes clear that the barriers that women face in accessing justice worldwide are daunting. They include women’s lack of knowledge of their rights, dependence on male relatives for resources, and the stigma that can fall on women if they seek or threaten legal recourse - the last of these barriers we have recently seen in operation following the making by more than one woman of allegations against former IMF chief Dominique Strauss-Kahn, and, closer to home, in the aftermath of allegations made against the chief executive of David Jones.

In countries with more than one legal system, the challenges for women increase. Often customary legal systems contain discriminatory laws and do not proscribe gender-based violence. The report calls on governments to recognise their responsibility to address gender-specific barriers to justice. It proposes important strategies such as increasing the number of women in front line services, and providing support to women engaging with Indigenous justice systems. We should not ignore the need for strategies of these kinds in Australia.

How Australia compares

As I have mentioned, this report highlights the necessity for there to be well-functioning legal and justice systems in order for women to achieve their rights. In Australia we have in place many of the fundamental blocks for an effective legal system. Unfortunately, this has not yet translated into high levels of gender equality in Australia.

In the 2010 ‘Global Gender Gap Report’, which measures gender equality in relation to economic participation and opportunity, education attainment, health and survival and political empowerment, Australia was ranked twenty-third.^[1]

Despite making up 45% of Australia’s total workforce, and despite constituting the majority of university graduates in Australia, women remain seriously under-represented in leadership and management positions in virtually all sectors of Australian society. For instance, 65% of law graduates are female^[2] yet the numbers of female partners in the major law firms remains low and women are significantly outnumbered by men at the Bar and particularly at the senior Bar. In my old court, the Federal Court of Australia, women make up only 16% of the bench^[3] and this report indicates that Australia ranks 43^rd next to Angola and Latvia so far as female representation in the judiciary generally is concerned. In the corporate sphere, women chair only 2.5% of ASX200 companies and make up only 8% of executive management positions^[4]. In the public arena, only 30% of our national politicians are female^[5] and as at July 2010, women made up only 37% of the Senior Executive Service in the Australian Public Service^[6].The gender gap in pay in Australia has actually widened to 17 per cent^[7]. In terms of gender equality Australia falls behind comparable countries such as New Zealand, the United Kingdom, Spain, Germany and the Nordic countries, who all ranked in the top 15.

Positive steps being taken in Australia

However, despite our comparative ranking, there have been significant gains made in Australia particularly in terms of strengthening the legislative and institutional framework for gender equality.

The report recommends that gender-sensitive law reform be implemented. We are fortunate to have had a national Sex Discrimination Act for over 25 years. You may be interested to know that in the financial year 2009-10, 21% of all complaints received by the Commission were made under the federal Sex Discrimination Act. Almost 4 out of 5 of these complaints were made by women^[8] and most were based on sex discrimination in relation to pregnancy, sexual harassment and family responsibility. Importantly, the Sex Discrimination Act also provides for temporary special measures to be implemented, which, as the report notes, can be critical to the achievement of substantive equality for women.

Recently, the Commission advocated for amendments to strengthen the Sex Discrimination Act, and I am pleased to say that the amendments that we sought were largely made in June 2011. As a result, the Sex Discrimination Act now prohibits discrimination against employees on the ground of family responsibilities and breastfeeding and prohibits sexual harassment in workplaces and schools conducted by way of new technologies.

Australia has also had a long history of strong labour laws, including equal pay legislation. However, we continue to have female dominated sectors where the remuneration for workers is not equal. As I mentioned before, the Australian Services Union and others have brought a case before Fair Work Australia for an equal remuneration order in the social and community services industry. The Commission made submissions on the case. Fair Work Australia released an interim decision finding that women in the social and community services sector do not receive remuneration equal to that ‘of employees of state and local governments who perform similar work’. I am hopeful that the outcome of this case will see an increase in the wages of the almost 200 000, mostly female, social and community sector workers across the country, particularly those working in health and community service industries.

The UN Women report also notes the importance of extending the protection of the rule of law across a range of areas that impact on women, including violence against women and girls, and women’s economic participation. In order to have effective access to justice for women, the report notes how important it is to address the inter-relatedness of rights. We know that failure to respect the right to live free from violence, including sexual violence, can directly impinge on women’s rights to education, health, housing and employment.

It was in this context that the Commission warmly welcomed the launch earlier this year by the Australian Government of the National Plan to Reduce Violence Against Women and their Children. The Plan is significant in that it sets out a national approach to preventing and providing redress for sexual assault and family and domestic violence across Australia. It will be important in ensuring that all Australian women are potential beneficiaries of this plan that specific measures are put in place for women who may not be able to access services as readily as others, including Aboriginal and Torres Strait Islander women, culturally and linguistically diverse women, women with disabilities, lesbian and trans women, older women and young women and girls. It will also be important for proper independent monitoring and evaluation mechanisms to be established, in order to be able to assess the effectiveness of the plan.

The Commission also advocated for a national Paid Parental Leave Scheme and was particularly pleased that Australia joined the club of 173 countries with such a scheme in January 2011. This is a vital development for addressing the workplace disadvantage that women experience as the result of their maternal role. The Commission has since made recommendations for improving the scheme such as the addition of a superannuation component.

Incidentally, I have long believed that women will not achieve true equality at work until they enjoy true equality at home. I was therefore delighted to learn from the report that after Sweden encouraged fathers to take paid parental leave by introducing a ‘daddy month’ that was not transferable, a study found that for every month a father takes leave a mother’s earnings increase by an average of 6.7%! Australia can do better in this area - but it is pleasing to see that we are making a start with the Government having committed to providing two weeks paid paternity leave pay for eligible working fathers and partners in 2013.

Finally, the report makes a specific recommendation for women’s legal organisations to be supported. The report found that women’s legal organisations were invaluable in increasing the accessibility of the justice system for women. Our experience at the Commission confirms the accuracy of this finding both in the Australian context and internationally. At home we are pleased to be able to work with, and support the work, of a number of women’s organisations, including not only mainstream organisations such as UN Women and the Country Women’s Association, but also the Marninwarntikura Women’s Resource Centre from the Fitzroy Valley, Women With Disabilities Australia, the Australian Muslim Women’s Centre for Human Rights, the United Muslim Women Association Inc and African Women Australia Inc.

Internationally we work with the All China Women’s Federation, which has close to a million women’s committees at the grassroots level, and the comparable Vietnam Women’s Union, to jointly address issues including domestic violence and legal empowerment.

Returning to the domestic context, the Commission has identified three ways in which women’s organisations, both legal and non-legal, can be better supported in the Australia. First, women’s organisations and representatives should be funded so that they can fully participate in decision-making processes. Secondly, the government should undertake meaningful and ongoing consultation with women’s organisations when developing policy. Thirdly, Australian delegations to international intergovernmental bodies should reflect the diversity of women in Australia.

It is crucial that women leaders have the opportunity to share their skills, experience and insights with others in Australia and abroad. Women’s organisations ensure that women are able to have a voice in the formation and implementation of legislation, policies and services which affect their lives and the lives of others in the community. There is an urgent need in Australia to lift the profile of, and provide support to, women who are making a genuine difference in their communities. Their participation in decision making must be actively promoted by Government if they are to realise their true potential as drivers of women’s empowerment.

Conclusion

Allow me to now say a few words in conclusion.

The Executive Director of UN Women, Michelle Bachelet, noted in the forward of the Report that she had witnessed a transformation of women’s legal rights in just one generation. I have done the same and this might be one of the reasons that I remain optimistic that even more can be achieved.

When I become troubled by the slow pace of change, I reflect on aspects of this transformation that have particularly touched me. I recall that as a young solicitor in Adelaide, one of my senior professional colleagues was a woman in her 80s who was one of the first three women to enter legal practice in South Australia following the passage of the Female Law Practitioners Act 1911 (SA). I remember that early in my career I was privileged to experience the personal support of Australia’s first female superior court judge, Justice Roma Mitchell of the Supreme Court of South Australia, who took up her judicial appointment in the year that I commenced studying law - a time, I interpolate, when women in South Australia were not able to serve on juries. Only a few years earlier Roma Mitchell had become Australia’s first female QC and, of course, she went on to be Australia’s first female University Chancellor and first female Governor. I remind myself that I was privileged to serve as the first female Crown Solicitor in Australia, and as far as I am aware, the Commonwealth, and was only the second woman in Australia to head a government department. While change may feel slow, we have truly come a long way in a relatively short period.

Today, as we know, many positions of leadership in the law, not only in Australia but elsewhere, are held by women and women are actively using the law to advance their own rights and those of others. But, as this report reminds us, we can and should do better. This report’s recommendations show us the way forward – for Australia and the world.

Let me once again congratulate UN Women for producing such a timely and thorough report. It is a pleasure to launch a report that so comprehensively identifies both the potential, and the current failings, of justice systems in the fight for gender equality. It is extremely useful to have a regular reporting mechanism that allows us to track how the universal issue of gender is progressing around the world.

I am very proud to launch UN Women’s Progress of the World’s Women: In Pursuit of Justice and commend this powerful report to you.

Thank you.

^[1] World Economic Forum, Global Gender Gap Report 2010. At: http://www.weforum.org/issues/global-gender-gap (viewed 6 July 2011).
^[2] Graduate Careers Australia, Gradsonline Survey, (2010).
^[3] Federal Court of Australia, List of appointment date of current judges. At www.fedcourt.gov.au/aboutct/jj_seniority.html (viewed 6 July 2011).
^[4] Equal Opportunity for Women in the Workplace Agency 2011, Gender workplace statistics at a glance (July 2011). At http://www.eowa.gov.au/Information_Centres/Resource_Centre/Statistics/gender%20stats%206-11_ONLINEversion.pdf (viewed July 2011)
^[5] Politics and Public Administration Group – Parliamentary Library 2011, Composition of Australian Parliaments by Party and Gender, as at 1 July 2011. At http://www.aph.gov.au/library/intguide/pol/currentwomen.pdf (viewed July 2011).
^[6] Australian Public Service Commission 2010, Australian Public Service Statistical Bulletin – State of the Service Series 2009-10 pp. 6. At http://www.apsc.gov.au/stateoftheservice/0910/statistics/bulletin.pdf (viewed July 2011).
^[7] Equal Opportunity for Women in the Workplace Agency 2011, Gender workplace statistics at a glance (July 2011). At http://www.eowa.gov.au/Information_Centres/Resource_Centre/Statistics/gender%20stats%206-11_ONLINEversion.pdf (viewed July 2011)
^[8] Australian Human Rights Commission 2010, Annual Report 2009-10 <Available at: http://www.humanrights.gov.au/pdf/about/publications/annual_reports/2009_2010/AHRC2009_2010_complete.pdf> (viewed 5 July 2011).