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Book launch:
Federalism, Feminism and Multilevel Governance and Sex Discrimination in Uncertain Times

Speech by Elizabeth Broderick
Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination

ANU College of Law, Australian National University

Wednesday 29 September 2010

I want to begin by acknowledging that we are gathered here on the traditional lands of the Ngunnawal people and pay my respects to their elders past and present.

It is such a pleasure to be here with you tonight to celebrate the launch of two important books – Federalism, Feminism and Multilevel Governance, edited by Professor Marian Sawer, Melissa Haussman and Jill Vickers and Sex Discrimination in Uncertain Times edited by Professor Margaret Thornton.

I want to pay particular tribute to both to Marian and Margaret. The work of my office, and no doubt all of my predecessors, owes a great practical and intellectual debt to both these women and to the other brilliant feminist academics at ANU – both female and male.

Marian Sawer’s assiduous and meticulous accounts of the foundation and development of Australia’s gender equality machinery have demonstrated how feminist ideas can be translated into policy and practice. Her expertise has been recognised internationally, not only by the inclusion of her work in a number of international publications, but also through her recognition as one of the United Nation’s international experts on national gender machinery. Her focus on the institutional arrangements that have alternately progressed and undermined gender equality is invaluable to everyone working in the area of gender equality.

Margaret Thornton is similarly a scholar whose commitment and insight contributes significantly to the women’s movement. Her work, particularly on Australia’s discrimination framework, but also on feminist jurisprudence, legal education and the legal profession has consistently been at the forefront, and has been an important resource for a number of Sex Discrimination Commissioners. In fact, I think one of the chapters in Sex Discrimination in Uncertain Times, reveals she has been a leading feminist legal thinker since 1978 when she was involved in the formation of the Feminist Legal Action Group.[1] I know the ANU was very pleased when she joined the College of Law recently.

I was fortunate to both attend and address the conference Margaret convened to mark the 25th Anniversary of the Sex Discrimination Act last year – it included a very entertaining and amusing re-enactment of the passage of the SDA – amusing until I realised that many of the same comments made about the Act, the disintegration of the family and the breakdown of the social fabric of communities are just as likely to be made today!

I also want to acknowledge many of the people who were part of this conference and who contributed papers to both these publications. As evidenced by tonight’s crowd, many of the experts on feminism, human rights, federalism, governance, public international law and gender equality machinery are located right here at the ANU. These experts come from a breadth of disciplines and consistently lead the research and thought in both policy and legislative issues. I want to thank the University for hosting this event and for their continued support for such an important area of academic research. I am so delighted to learn today that the Vice-Chancellor has approved the establishment of the ANU Gender Institute from 1 January 2011. I understand there was unanimous support for the proposal from the College Heads and University Executive members at the meeting. What terrific news and a significant step forward for gender equality in this country. Congratulations and I look forward to working with you in my role as Sex Discrimination Commissioner to create evidence based policy that will create a more equal Australia.

In the time I have held the position of Sex Discrimination Commissioner it has become clear that Australia’s Federal political structure and the rise of multilevel governance has provided women’s and gender equality advocates with an increasing number of fora to pursue policy and legislative action.

The same structures also pose challenges to women’s policy advocates – as many in tonight’s audience will attest. Sustaining and coordinating action across so many jurisdictions is resource intensive and there are many examples where accountability for change has fallen through the cracks or become stuck in the overlap.

Marian Sawer’s book clearly outlines both the potential opportunities and the possible threats federalism and multilevel governance can pose for gender equality.

Of course, one of the challenges for gender equality in Australia is the continued need for reform of the Sex Discrimination Act. As Margaret Thornton’s collection suggests – the individual complaint based model of anti discrimination may not be the most effective and responsive tool. Most of the discrimination that exists today is not overt. It is built into the systems, cultures and institutions that exist in Australia. It is often the result of unconscious bias – bias that relies on our inbuilt gender schemas and develops as a shorthand way of helping us understand the world. Providing equal opportunity is not sufficient if we are to deliver substantive equality.

The publication of these books brings together the work of both international and national gender equality law and policy experts. And for those of us working outside academia, these two publications offer a valuable resource to inform our work and an opportunity to re-examine our efforts to reform policy and legislation to achieve gender equality.

I want to briefly share with you tonight some thoughts firstly on the publication Federalism, Feminism and Multilevel Governance and then Sex Discrimination in Uncertain Times.

Haussman, Sawer and Vickers’ anthology offers a feminist perspective on federalism as it has manifested in countries as wide-ranging as Australia, Russia, Mexico, Nigeria, India, Canada, the UK and the United States. It also addresses multilevel governance and the potential an increasing number of non government and international decision making forums might hold for advancing gender equality.

As an advocate for gender equality at the national level, many of the ideas here gave me pause to stop and consider my own work and that of the people I work with, both within and outside government.

As the authors suggest, federalism creates more sites and opportunities for people’s participation and more points of access to decision-makers.[2] Federalism opens up channels for policy change – where advocates find resistance or hostility in one jurisdiction their proposals may be received more favourably in another.[3] Smaller jurisdictions may offer the possibility of piloting or testing a particular policy or legislative reform and thus generating support for a broader implementation.[4] Federal systems can also ignite competition or collaboration between different levels of government, which can lead to policy innovation.[5]

I have seen these elements of our political architecture play out even in the short time I have been in this position. This has been particularly highlighted in governments’ responses to the issues of violence against women and women in leadership, which are also two of my priority areas as Sex Discrimination Commissioner.

While the late 1990s was marked by the continuing absence of an integrated, national response to violence against women, federalism allowed women’s advocates to pursue progressive policy responses with State and Territory governments instead. At the time when a National Plan of Action to Eliminate Violence against Women was an elusive goal, State and Territory violence against women plans or frameworks began to spread, horizontally across Australia. In 2007, the change of government at the federal level saw the Federal political environment shift and an integrated policy response was able to spread vertically. Just before the most recent federal election we saw the Australian Labor Party announce the National Plan to Reduce Violence against Women and their Children to be implemented by the incoming government.

Government responses to the issue of women’s representation in leadership and decision-making positions, another particular interest of mine, have followed a similar trajectory. The past five years or so have seen almost every single State and Territory Government set targets for women’s representation on government appointed boards and committees and in management positions in the public sector. The increasing success of these targets has made the Federal Government’s reluctance to set similar targets less and less tenable. Again, the 2010 federal election saw the Labor Party make an election commitment to setting a target for gender equality on federal government boards and committees.

Of course, as Sawer herself points out, the rise of multilevel governance means decision-making is increasingly complex and diffuse and more likely to involve non-state actors, including the corporate and private sector.[6] The issue of women in leadership provides a good illustration of how women’s advocates can also influence these non state actors to take action towards gender equality. Last year the Australian Stock Exchange’s Governance Council announced changes to their Principles for publicly listed companies from 1 January 2011. All publically listed companies in Australia will be required to set ‘measurable objectives’, or gender equality targets, in their organisation. They will need to set targets for increasing the number of women at senior executive levels and the number of women on their boards. These targets will be disclosed to the market in full and companies will be required report against them annually.

And, while longstanding state and territory action was undoubtedly an influence on the federal government, the market’s decision to regulate itself also tipped the balance towards better government action. While I don’t want to overstate the case, early indicators are showing a marked increase in the number of women being appointed to decision-making and leadership positions in publicly listed companies on the ASX. In the past 8 months there has been a four fold increase in the number of women appointed to ASX 200 boards when compared to the whole of 2009.[7] Let’s hope this trend continues.

Another pertinent example of multilevel governance is of course, the international human rights framework. Those of us engaged with international human rights processes well know the potential of the additional policy making and arbitration structures this framework establishes. In August this year I attended Australia’s appearance in front of the Committee monitoring implementation of the Convention on the Elimination of All forms of Discrimination against Women (CEDAW). While the Australian Government will make its own decision about how to implement the CEDAW Committee’s Concluding Observations, the reports provided by the Australian Government, the Australian Human Rights Commission and women’s non government organisations meant this appearance was perhaps the most comprehensive, national review of Australia’s gender policy and legislation.

Of course, as the contributors to the collection illustrate – federalism and multilevel governance also provides an array of challenges and pitfalls for achieving gender equality. As another of the editors, Jill Vickers, suggests, jurisdictional overlap and the lack of clarity in relation to the federal division of powers may be used to avoid political obligation and policy responsibility.[8] While I’ve just used the example of violence against women as a policy area that has benefited from the channels created by federalism – one might just as easily argue that this was necessitated by the lack of clarity regarding federal obligations in this area.

Similarly, while the plethora of decision and policy making arena does create a multiplicity of access points for advocates – many of us have seen the challenges this can pose for an advocacy sector which is chronically under resourced. While I think we have seen a renewed interest in gender related policy at the federal level in recent years (I’ve counted nine national reviews and inquires which have significant implications for gender equality since December 2008), I know that participation in these reviews has been taxing for many experts and organisations. As one of the Canadian contributions notes, policy advocates must have the resources and flexibility to take advantage of the opportunities which present themselves.[9] Here in Australia, without adequate resourcing, women’s policy advocates will struggle to monitor the implementation of all these national reviews. I know we share that concern.

Finally, in regards to multilevel governance, it is also necessary to acknowledge the limits of the international human rights framework and contributors to both volumes have noted the challenges with the implementation and lack of enforcement mechanisms inherent in this system.

One of the nine national reviews I just referred to was the Senate Inquiry into the effectiveness of the Sex Discrimination Act at the end of 2008 – which brings me to Sex Discrimination in Uncertain Times. As we continue to work towards the reforms set out in the Committee’s report and the prospect of consolidated, federal antidiscrimination legislation, Margaret Thornton’s collection is a timely publication indeed.

Now, as I mentioned earlier – I did have the opportunity to address the conference from which this collection arises – so I won’t repeat myself. However, I will say that Thornton’s premise – that the individual complaints based model of anti discrimination laws is showing stress – was also a key observation of the Commission’s submission to the Inquiry.

As Beth Gaze observes in her contribution to the book – the foundations of gender inequality lie in the gender schemas which so fundamentally structure our society and it is difficult to see how individual legal remedies can affect these gender schemas.[10]

As I said when I spoke last year, it is also the case that policy and legislative frameworks have commonly focussed on gender inequality as individual incidents of discrimination, each separate from the other. But in doing so, we have failed to recognise the cumulative impact of each of these individual events.[11]

The Commission has made a number of recommendations to improve the Act’s ability to progress substantive equality – we recommended:

I also suggested that Commissioner be required to undertake periodic, independent monitoring of gender equality indicators and benchmarks and report to the Australian Parliament.[12]

I am hopeful that these suggestions, many of which were supported by other submissions and included in the Committee’s recommendations will be properly considered through the upcoming process of consolidating our antidiscrimination legislation. It’s possible that this process could also go someway to stemming what Thornton describes as an ‘ever contracting space within public discourse to accommodate critiques of discrimination.’[13]

In her chapter of Marian Sawer’s book, Gwen Gray cites the work of another Australian feminist political scientist, Louise Chappell, who reminds us that, ‘particular institutions are neither good nor bad and that similar political architecture in different countries does not necessarily produce the same opportunity structures.’[14] Indeed I think it is just as true to say that the same political structures in the same country will not always guarantee the same outcome – here in Australia, while our political architecture has been, for the most part, very stable, outcomes for gender equality have varied over time.

In closing then I would like to say that both these important books exhort us to remain vigilant to the positioning and power of anti discrimination legislation and the national gender machinery and state and territory counterparts.

I’m not sure how many of you were watching Julia Gillard’s announcement of her cabinet earlier this month. If you were, like me, you would have experienced a tense couple of hours where it appeared our first female Prime Minister had made the decision to abolish the position of Minister for the Status of Women. Fortunately this discomfort was short lived and I, like I am sure many others of you, warmly welcomed the appointment of Kate Ellis to the role.

But for me, those tense few hours were a sharp reminder of the crucial importance of institutional arrangements.

It is imperative that we develop and maintain strong and supportive relationships between all arms of the national gender machinery – and by that I don’t mean only the identified women’s offices in the federal and state and territory jurisdictions. If we are to take advantage of our federal structure and meet its challenges, we must work as statutory institutions, academics, non government organisations, business, unions and active and engaged supporters in the broader community to develop new ways of advocacy and activism that are nimble, collaborative and responsive.

Tonight’s event demonstrates we are well on our way.

Thank you again Marian and Margaret for your commitment and leadership. Thank you for the opportunity to join in your celebrations tonight and congratulations again on the publication of two such valuable books. I look forward to working with you and the ANU Gender Institute to create a fairer more equal Australia.

[1] A Genovese, ‘A Radical Prequel: Historicising the Concept of Gendered Law in Australia,’ in M Thornton (ed) Sex Discrimination in Uncertain Times (2010), p 63.
[2] M Sawer and J Vickers, ‘Introduction: Political Architecture and its Gender Impact,’ in M Haussman, M Sawer and J Vickers (Eds), Federalism, Feminism, and Multilevel Governance (2010), p 5
[3] M Sawer and J Vickers, above, p 11
[4] M Sawer and J Vickers, above, p 7
[5] M Sawer and J Vickers, above, p 5
[6] M Sawer and J Vickers, above, p 8
[7] Australian Institute of Company Directors, Gender diversity on boards – statistics, www.companydirectors.com.au/About+Directorship/Board+role/Board+Diversity/Gender+diversity+on+boards+%E2%80%93+statistics.htm?LM (viewed 24 September 2010)
[8] J Vickers, cited in Gray, G, “Federalism, Feminism and Multilevel Governance: the Elusive search for Theory?” in M Haussman, M Sawer and J Vickers (Eds) Federalism, Feminism and Multilevel Governance (2010), p 25
[9] R Mahon and C Collier, ‘Navigating the Shoals of Canadian Federalism: Childcare Advocacy,’ in M Haussman, M Sawer and J Vickers (Eds) Federalism, Feminism and Multilevel Governance (2010), p 65
[10] B Gaze, ‘The Sex Discrimination Act at 25: Reflections, on the Past, Present and Future,’ in M Thornton (Ed), Sex Discrimination in Uncertain Times (2010), p 125
[11] E Broderick, Lifelines: Sex Discrimination over the lifecycle, (Speech delivered at ANU College of Law Sex Discrimination Act Silver Anniversary Conference, National Museum of Australia
Canberra, Friday 2 October 2009). At www.humanrights.gov.au/about/media/speeches/sex_discrim/2009/20091002_lifelines.html (viewed 24 September 2010)

[12] See Australian Human Rights Commission (Human Rights and Equal Opportunity Commission), Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act 1984, 1 September 2008. At www.humanrights.gov.au/legal/submissions/2008/20080901_gender_equality.html (viewed 24 September 2010)
[13] M Thorton, “Preface,” in M Thornton (Ed) Sex Discrimination in Uncertain Times (2010), p xvii
[14] L Chappell, cited in G Gray, ‘Federalism, Feminism and Multilevel Governance: the Elusive search for Theory?’ in Haussman, Sawer and Vickers (Eds) Federalism, Feminism and Multilevel Governance (2010), p 27