‘Women as Agents of Change’: Balancing the scales
Speech by the Hon Catherine Branson QC, President of the Australian Human Rights Commission
Commonwealth Law Ministers’ Meeting, NSW Government House, Sydney
Wednesday, 13 July 2011
Acknowledgment
I would like to begin by also 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. In particular, I would like to acknowledge the inspirational work of so many Aboriginal and Torres Strait Islander women who have been agents of change, be they barristers, lawyers, judges, litigants or community advocates.
Introduction and Recognition of Commonwealth Initiatives
I also thank the Commonwealth Law Ministers Forum for the opportunity to address this distinguished gathering – particularly on a topic so close to my heart.
The adoption of ‘Women as Agents of Change’ as the 2011 Commonwealth Day Theme is timely in a year which marks the 100th anniversary of International Women’s Day and which comes, as it does, at more or less the mid-point of the Commonwealth Plan of Action for Gender Equality 2005-2015 (the Plan of Action). Gender equality is a core Commonwealth value.[1] The Plan of Action recognises gender equality not only as a goal in its own right but also as a key factor in enhancing development, democracy and peace.
Within the Commonwealth our achievements in the area of gender equality have, unfortunately, not lived up to our ambition. We have not in this area yet balanced the scales of justice. I hope that you will excuse my noting that only 9 of the 47 registrants for this forum are women and, as I am informed, throughout the Commonwealth there are only 2 female Attorneys-General. In my own area, of the 40 National Human Rights Institutions in Commonwealth countries, only 15 are headed by women.
Looking more widely, in 1997 the Commonwealth Heads of Government endorsed a target of no less than 30% of women in decision-making in the political, public and private sectors by 2005. When that year came, progress had been made but only Mozambique, New Zealand and South Africa had consistently attained the 30% target of women’s representation in Parliament. Here in Australia we did not achieve 30% representation of women in our national Parliament until earlier this month. The target of 30% has been even less attainable in our public and private sectors. Certainly in Australia only 29% of Federal judges are women and only 25% of Federal Departmental Secretaries are women. In the private sector, the most recent statistics show that in our top 200 companies women chair only 2.5% of boards and hold 12.5% of board directorships[2] and in those 200 companies women hold only 3% of CEO positions and 8% of Executive Management positions.[3]
Looking specifically at the law, women constitute at least 65% of law graduates but only 19% of Australian barristers and 6% of senior counsel are women. And while women make up 46% of our solicitors, the highest percentage of female equity partnerships in a major law firms today is only 22.3%.
It seems plain that our aspiration to balance the scales that measure gender equality is not enough. I therefore applaud the adoption of a Commonwealth Day theme that recognises the many positive implications of increasing gender equality – and particularly acknowledges the special roles that women can play as agents of change for the betterment of entire communities. In recognition of the specialist nature of this forum, I will concentrate on the role of women as agents of change in the law. And having regard to my own experience, I hope you will forgive me if I concentrate on the Australian context.
This audience needs no reminding that there was a time when women possessed little agency within the law; nor that many women across the Commonwealth are still denied agency, including in Australia and other developed and developing countries of the Commonwealth. But is nonetheless important not to lose sight of what has been achieved in a relatively short period of time.
The Executive Director of UN Women, Michelle Bachelet, noted in the foreword to that new agency’s recently released report Progress of the World’s Women: in Pursuit of Justice that she had witnessed a transformation of women’s legal rights in just one generation. I have observed a similar transformation in Australia and for this reason I remain optimistic that even more significant change 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 South Australia, 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 note, incidentally, that in this state of NSW, the largest State of Australia, women did not become entitled to practice law until 1918.[4] I remember that my entry into legal practice was early enough in the history of women in the profession for me to have benefited from the personal support of Australia’s first female superior court judge, Justice Roma Mitchell of the Supreme Court of South Australia. I remind myself, when despondent about the pace of change, 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.
As a former judge and now as President of the Australian Human Rights Commission, I have had the privilege of being able to observe the nature and benefits of the changes which women have instigated and realised within Australia’s legal system and institutions.
We see them first in our statute law. Largely due to the advocacy and leadership of Australian women, we have had a national Sex Discrimination Act in this country since 1984. It has had a significant impact not only as an important symbolic statement, which I believe has helped shift attitudes, but also as means of legal redress. In 2009-2010, 21% of all complaints received by the Australian Human Rights Commission and 88% of complaints received in relation to employment were lodged under the Sex Discrimination Act. Individual women lodged 50% of all complaints lodged with the Commission and 79% of the complaints under the Sex Discrimination Act. This country’s strong labour laws, which also provide avenues to protect women in employment, similarly owe a lot to the advocacy of women. These laws seek to guarantee equality in the workplace for men and women, including equal pay, and there is presently a claim being made under these laws for an equal remuneration order for the female-dominated social and community services industry.
Nonetheless, women as litigants continue to face many barriers in accessing justice; these include their lack of knowledge of their rights, their reduced economic capacity, and their dependence on male relatives for resources, not to mention the stigma that can attach to women if they seek or threaten legal recourse.[5] Nonetheless, women are taking crucial steps towards changing their own lives and the lives of others by initiating or supporting important strategic litigation. The UN Women report to which I earlier referred profiles some of this litigation worldwide. It includes litigation to hold governments to account for failing to ensure that domestic violence laws are properly implemented; litigation to strike down citizenship laws that discriminate against women and their children; and litigation to enforce the right of all to a workplace that is safe and free from sexual harassment. In Australia strategic litigation in support of women’s rights has included claims for protection against discrimination in the workplace, including sexual harassment, pregnancy discrimination and discriminatory hiring practices; and claims that domestic violence ignored by the authorities in the country of origin can constitute the basis of a claim for asylum.[6]
Women lawyers are also proving to be agents of change by working to advance social justice: one need only observe the disproportionate numbers of female lawyers who work in community and specialist legal centres and in human rights organisations.
In thinking of how the scales of justice are balanced on gender equality, we should not overlook that access to justice means much more than access to the courts. Access to justice also involves the capacity to institute, and to obtain just and fair outcomes from litigation. For many women, the laws that appear in the statute books do not always translate into equality and justice and it is for this reason that women as agents of change continue to play a pivotal role both within the legal system – as judges and lawyers – and external to the legal system as politicians, litigants and community advocates.
Experience has shown that all-male legislatures have not been particularly attentive to the needs and legitimate demands of women. Similarly all-male judiciaries were slow to understand the circumstances and aspirations of women. For women to obtain just and fair outcomes from litigation it is necessary that they have a judiciary that understands them. As the former Madam Justice Claire L’Heureux-Dube of Canada rightly observed: ‘...in making a difference, judges cannot only be concerned about women’s reality (I might have said ‘realities’), but also about the varying and diverse experiences of children, men, people with disabilities, people of colour, people who are poor...and all other types of human experiences which may form the background against which law is applied.’[7]
It is, I think, commonly accepted in judicial circles that when women join courts, the language in which women and women’s issues are discussed around the court becomes more sympathetic. The language in which judgments are written changes – and not just in the judgments written by women judges. In judges’ common rooms feminist issues become topics of respectful discussion. Women judges can be powerful agents of change for justice and equality – and not just by determining cases that come before them.
It is equally important that we have women as leaders and decision-makers in all sectors of society.
As I observed in opening, we have not found it easy to achieve a significant increase in the numbers of women in leadership positions and that we remain far from our 30% target. What stands in our way? I would like to suggest that in large measure it is how we envisage work at a senior level and, perhaps more importantly, how within relationships we share domestic responsibilities. Until we can achieve a critical mass of women on the path towards senior appointments we will not be able to appoint women at the top in the numbers to which we aspire.
I am confident that it is not a coincidence that many of the first women appointed to senior positions in this country were single or did not have children. There were, of course, some notable exceptions, but it is not easy to balance the demands of a busy job and significant family responsibilities. In fact, the anecdotal evidence I hear is that many young lawyers are seeking out opportunities to work with law firms and partners who enable them to achieve that professional and personal balance, frequently resulting in more productive and healthier workforces.
It seems to me to be wrong in principle that the most senior positions in organisations should nearly always be the most demanding in time and energy. Surely in most cases (I accept probably not all) what one really wants in a senior leader is a person with commitment, ideas and vision; someone who can inspire others to make that vision a reality. This ought not necessarily demand excessively long hours in the office. In our profession we expect those appointed to senior office to have a high level of skill and experience but I see no reason to think that these can only be achieved at the expense of fair work/life balance.
I am persuaded that until we have greater equality between men and women in the home we will not see it in the workplace. I was therefore delighted to learn from the UN Women report that I earlier mentioned, that after Sweden (which I observe has a high percentage of women in its Parliament[8]) 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%.[9] Australia, like many other countries, can do better supporting parents with children - but it is pleasing to see that the Australian Government has committed to expanding our still relatively new paid parental leave scheme by providing from 2013 two weeks’ paid paternity leave pay for eligible working fathers and partners. But we need a change in cultural as well as economic norms to ensure that men and women equally feel free to assume caring responsibilities. Gender equality is something that will only be achieved by men and women working together.
In closing, I want to return to the point I made in my opening remarks that merely aspiring for gender equality is not enough. In this regard, the role of national human rights institutions as agents of change has proved significant. Again, looking at the Australian experience, our Sex Discrimination Commissioner, a member of the Australian Human Rights Commission, has been a powerful role-model and advocate for gender equality. The Commission itself has intervened in landmark litigation that has advanced the recognition of women’s employment and reproductive rights and freedom from discrimination. NHRIs nearly everywhere offer women a forum for resolving complaints in a non-adversarial jurisdiction and advocate for the elimination of discriminatory practices. These institutions, to the extent that their resources allow, play a pivotal role in giving visibility to gender inequality and its manifestations and in shaping policy and law reform responses to improve women’s lives. May I urge you all to support your NHRI?
Let me close by observing that human rights, including economic and social rights, are everybody’s rights. We should all, men and women, seek to be agents of change to ensure that the rights of all in our respective countries and communities, are respected. But women play a special role as agents of change: as Mrs Sonia Gandhi recently commented, “[women] through their own initiative, their energy and enterprise, through individual and collective action, have transformed not only their own situations but the broader social context itself.”[10]
I too wish to acknowledge the great contributions that women throughout the Commonwealth make towards ensuring that the benefits of development, democracy and peace are enjoyed by all.
[1] Commonwealth Heads of Government Harare Commonwealth Declaration, issued by Heads of Government in Harare, Zimbabwe on 20 October 1991. At http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=34457 (viewed 12 July 2011).
[2] Australian Institute of Company Directors 2011, Statistics – Appointment to ASX 200 Boards. At http://www.companydirectors.com.au/Director-Resource-Centre/Governance-and-Director-Issues/Board-Diversity/Statistics (viewed 12 July 2011).
[3] 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 12 July 2011).
[4] Women’s Legal Status Act 1918 (NSW).
[5] UN Women 2011-2012 Progress of the World’s Women: In Pursuit of Justice (2011), p 52-55. At http://progress.unwomen.org/ (viewed 13 July 2011) (‘UN Women Report’).
[6] UN Women Report, p 16-21.
[7] Madam Justice Claire L’Heureux-Dubé ‘Making a Difference: The Pursuit of a Compassionate Justice’ University of British Colombia Law Review 31(1), p 8.
[8] 45% in 2010. See UN Women Report, p 123.
[9] UN Women Report, p 38.
[10] S Gandhi, ‘Women as Agents of Change’ (speech delivered at the 14th Commonwealth Lecture in London) 17 March 2011. At http://www.womenasagentsofchange.org/news-story/sonia-gandhi-delivers-the-2011-commonwealth-lecture/ (viewed 12 July 2011).
