Using international human rights instruments to advocate for women’s rights in Australia

Date: 
Friday 30 August 2013
Author: 
Professor Gillian Triggs, President

Women’s Legal Services NSW

The Foundation Winter Afternoon Tea

Friday 30 August

3.00pm – 5.00 pm

Professor Gillian Triggs,

President, Australian Human Rights Commission

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Using international human rights instruments to advocate for women’s rights in Australia


Thank you Helen for the warm introduction and thank you to the Women’s Legal Service NSW for the invitation to be with you here today.

When preparing this paper I looked into the background of Women’s Legal Services NSW as I wanted to see the relationship between its history and the development of the international human rights law. I was interested to find out that Women’s Legal Services began as small group of women legal activists. As I’m sure many of you are aware this occurred in 1982, three years after the adoption of CEDAW, and only two years after Australia’s ratification. CEDAW and Women’s Legal Services NSW have grown up together!

It is a particular pleasure to be here in the offices of Gilbert and Tobin, as this firm proved to be a strong supporter of our social justice initiatives at the Sydney Law School and a generous donor to our indigenous law program.

Before I begin I would like to acknowledge the Gadigal people of the Eora Nation, the Traditional Owners of the land upon which we gather today. I pay my respects to your elders, past and present.

You have asked me to speak to you about how women’s rights advocates and lawyers can use the international human rights treaties and communication processes. This is a topic that is of great interest to me as an international and commercial lawyer, academic and, more recently, President of the Australian Human Rights Commission - for there is a wide gulf between negotiating and ratifying a treaty on the international stage - with global celebrities, flowers and flashing cameras - and implementing these treaties in national law. Aspirational human rights treaties can only be effective to the extent that they have been implemented by legislation.

Of course, the key reason for this gulf is the democratic principle of parliamentary sovereignty. No treaty is directly binding in Australian law until parliament has passed legislation to give it domestic effect. It is a virtually unique feature of Australian law that, unlike every other comparable legal system, we have very few constitutional protections for fundamental freedoms, no national Charter for human rights and the core international treaties to which Australia is a party, ICCPR, ICESCR, CROC, have not been adopted by Parliament in our domestic laws. Rather, we have relied upon parliamentary processes such as compliance statements and joint parliamentary scrutiny and our judges in applying and developing common law principles of legality.

It is against this background that we should understand the relatively strong legal support by Australia for women’s gender equality. We have ratified CEDAW and its Optional Protocol and implemented national laws to give these international obligations direct effect. Today, I would like to discuss the international human rights framework, the federal legislation giving effect to that framework, and finally, the role of the Australian Human Rights Commission in protecting and promoting women’s rights.

The Women’s Legal Services NSW is a great example of how rights can be made a reality. You are all human rights advocates and defenders; as the person at the end of the telephone who provides confidential legal advice and support, the lawyer who works to help a woman protect and enforce her legal rights, or as an advocate, campaigning for systemic changes to the system. Each of you is working to improve the rights of all women across Australia.

Australia has made good progress towards achieving gender equality in recent times. My generation from the 60’s has seen vastly improved access to educational opportunities and careers, work place flexibility and child-care. But in many respects women continue to experience inequality. Sex discrimination remains a harsh reality for many women. For example:

  • One in three women in Australia has experienced physical violence since the age of 15 years and almost every week in Australia one woman is killed by her current or former partner.
  • Aboriginal and Torres Strait Islander women are 45 times more likely than non-Indigenous women to be victims of domestic and family violence.

  • 45% of the workforce now comprises women, but we continue to be grossly underrepresented in leadership and management positions.

  • Women comprise half of Australia’s total population (50.2% in 2010) but less than one-third (30.1%) of all parliamentarians in Australia’s parliaments.

  • And Australian women are paid 17.5% less than men doing the same work, and receive only 50% of male superannuation balances and payouts.


These are just some of the areas where improvements must be made, and I’m sure you see these disadvantages and discrimination play out in your work on a daily basis.

The international human rights framework

The development of the contemporary human rights framework began in 1948, with the adoption of the Universal Declaration of Human Rights. Not many people are aware of the role Australia played in the drafting at the adoption of the Universal Declaration.

Australia was one of nine countries on the drafting Committee. You may be familiar with Doc Evatt, who was the powerhouse behind Australia’s support for the Universal Declaration and – importantly - was the President of the UN General Assembly at the time the Universal Declaration was unanimously adopted.

Since then we have seen a significant increase in the body of international law that protects and promotes the rights of all human beings, regardless of their race, sex, age, disability or other attributes. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the main international human rights agreement that seeks to ensure that the human rights of women and men are equally protected and fulfilled. It sets out key principles of equality and an agenda for national action to end discrimination against women.

Countries that have signed CEDAW, including Australia, are legally bound to put it into practice.

I’m sure you’re all familiar with CEDAW so I won’t go into detail. CEDAW includes rights that were already reflected in the core international human rights treaties – such as the right to vote (art 7(a)) and the freedom of movement (art 15(4)), and new protections to address the specific needs of women – for example, in relation to pregnancy and maternity.

The treaty describes the rights of women in four sections of the treaty:

  • Part I defines ‘discrimination against women’ and outlines the core or general obligations of States Parties.
  • Part II protects women’s rights to equality in political and public life.
  • Part III outlines women’s rights to equality in economic and social matters, such as education (art 10).
  • Part IV outlines women’s rights to equality in legal and civil matters, as well as in marriage and family relations.

In addition to the substantive rights are the procedural rights; rights that are vital to effective implementation and which I will emphasise today.

Part V establishes the Committee on the Elimination of Discrimination against Women, or CEDAW Committee for short, and outlines its mandate to monitor progress of the implementation of CEDAW. The Committee consists of 23 experts on women’s rights from around the world. A party to CEDAW will be reviewed every four years. The Committee will raise its concerns and recommendations to the State party in the form of concluding observations. These concluding observations are a public statement given to the Government that specifies further action required to live up to its obligations under the CEDAW Convention, and can become an important tool when advocating for women’s rights at the domestic level.

The Committee will often issue General Recommendations or General Comments. The Committee has adopted 28 General Recommendations in total, including on older women, migrant women workers, marriage and family relations, and HIV/AIDS. These are like guidance notes that help states to fulfill their human rights obligations. They are a useful reference as they clarify and elaborate the scope and meaning of treaty rights and identify some of the steps states need to take to comply with their obligations. Such comments can form part of evolving ‘soft laws’ that contribute to the development of custom, binding on all states, regardless of whether they have ratified the relevant treaty.

I think it is important to note that CEDAW’s definition of discrimination applies in all areas of life, both public and private.[1] And it applies to discrimination by state and non-state actors. So, governments can be held accountable not only when state actors and agents discriminate against women but also when they fail to act with ‘due diligence’ to prevent, investigate, punish and remedy violations of women’s rights by private actors. A good example of this is where a government fails to prevent, investigate, punish and remedy domestic violence.

What about individual rights of communication?

CEDAW does not provide individual women with an avenue to obtain redress for violations of their rights. So after years of lobbying from the women’s movement, on 6 October 1999, the UN General Assembly adopted a treaty known as the Optional Protocol to CEDAW. This was significant in that it provided those whose rights had been violated the possibility of a real remedy. Australia adopted the Optional Protocol nine years later in 2008.

Mary Robinson, the High Commissioner for Human Rights at that time stated:

This is perhaps the most important contribution of the Optional Protocol. It is action at the national level that will create the environment in which women and girls are able to enjoy all their human rights fully, and where their grievances will be addressed with the seriousness and speed they deserve.[2]

The Optional Protocol introduced two new mechanisms.

1. Communication procedure. It enables women to submit complaints to the CEDAW Committee to seek individual redress for violations of CEDAW.

A large number of communications have concerned either reproductive and sexual health or violence against women. Other issues include human rights violations related to the conditions of detention for women, domestic violence asylum claims, gender stereotyping in a rape trial, termination of employment for defying a ban on headscarves and sex trafficking.

Examples of cases:

  • A Filipino woman, Karen Vertido, succeeded in holding the Philippines accountable for the actions of a judge who relied on gender stereotypes in acquitting the defendant of raping her.
  • In another case, Brazil was held accountable for its failure to provide timely, non-discriminatory, and appropriate maternal health services that would have prevented the avoidable maternal death of Alyne da Silva, a 28 year-old woman.


This vitally important and effective procedure has never been employed by Australian advocates for women’s rights. Perhaps this reflects the relatively recent ratification by Australia in 2008 and we have not yet had time to take advantage of the individual right to communicate.

The advantages of individual communications are demonstrated by the findings and recommendations last week of the UN Human Rights Committee under the ICCPR. The Committee, in a strong determination found that our policy of mandatory detention of refugees with a negative ASIO assessment was both in breach of Article 9 of the ICCPR prohibiting arbitrary detention and of Art 7 prohibiting cruel, inhuman or degrading treatment or punishment. This is the first time we have had a ruling against Australia on this ground. Will the views of the UN Human Rights Committee have any impact? During this caretake period prior to an election, the report has received little media attention, probably because both major parties favor mandatory detention. Usually, Australia, as a good international citizen will treat most international monitoring committee recommendations with respect, the Tooney case being the primary example. Others are ignored. I suggest however, that international opprobrium for human rights abuses is becoming increasingly difficult to ignore and communications to the UN monitoring system remains a significant tool for human rights education and influence.

2. Inquiry procedure. This procedure enables individuals and organizations to submit a request to the CEDAW Committee to conduct an inquiry into allegations that a State Party has committed grave or systematic violations of CEDAW. We have seen success, for example, of an inquiry that concerned the abduction, rape and murder of a large number of women in Ciudad Juarez in Mexico.

Other international instruments

Of course CEDAW isn’t the only tool available to advocate for women’s rights. For example, UN Special Procedures also play an important role in this area.

1. Special Procedures are established by the UN Human Rights Council, one of the UN’s main human rights bodies, to examine, monitor, address and publicly report on alleged human rights violations related to a specific country or to a specific issue (e.g. trafficking).

Special Procedures can be individual experts known as Special Rapporteurs or Independent Experts. They can also be a working group, as in the case of the working group on laws that discriminate against women.

Special Procedures have a number of different functions. One of the most well-known is carrying out country visits to investigate the situation of human rights at the national level. These visits function as fact-finding missions and the Special Procedures report back to the Human Rights Council and, in some instances, the UN General Assembly on the findings of their visits. The reports of Special Rapportuers provide a very authoritative voice and can be a useful device for advocacy efforts.

In April this year, UN Special Rapporteur on violence against women, Rashida Manjoo undertook a study tour. While this is different to an official mission, visits such as this can play a significant role in building awareness and understanding.

2. Universal Periodic Review, (UPR). Under the UPR process, *states* review the human rights records of other UN Member States once every four years. This is not just a state to state procedure. There is a role for AHRC as the national human rights institution and for NGOs (NSW Women’s Legal service made a submission in the first round).

During Australia’s UPR, a number of countries raised concerns about the issue of equality of women and men, and the high level of violence against women, particularly amongst Aboriginal and Torres Strait Islander women and other vulnerable groups.

These recommendations have been integrated into Australia’s National Human Rights Action Plan which outlines a number of measures to improve women’s human rights. For example, the Plan commits the government to achieving at least 40% representation of women on its advisory boards.

The UPR is a good example of how the international instruments can provide a platform for advocacy activities on issues and a tool for lobbying the Government to live up to its commitments. For example, before the review, the UPR can be used to create public awareness around critical human rights issues that should be considered in the review process.

Australian legislation to implement international obligations

All of these mechanisms provide important opportunities to advocate for the implementation of women’s human rights. There are a number of laws in Australia that give effect to some effect to some of the provisions of CEDAW.

  • The Sex Discrimination Act and Fair Work Act: these laws prohibit discrimination on the basis of gender, marital status, pregnancy, breastfeeding and family responsibilities. They also prohibit harassment of women, which remains a significant issue in employment.
  • The Workplace Gender Equality Act: this was introduced late last year and creates a new national process to monitor progress towards gender equality in Australian workplaces. This includes by creating obligations for large businesses in Australia to report on how they are promoting gender equality. This law replaces a scheme that had existed for many years in Australia but which had not been very effective.
  • Other federal laws that aim to protect and promote women’s human rights include the Paid Parental Leave Act 2010 (Cth), which provides 18 weeks of paid parental leave for the primary carer of a newborn or recently adopted child. This law was also changed recently to also provide 2 weeks paid leave for a partner.
  • Human Rights (Parliamentary Scrutiny) Act 2011. We also have a system for Parliament to scrutinize all proposed laws to see whether they comply with Australia’s human rights obligations. The human rights that are covered in the Human Rights (Parliamentary Scrutiny) Act 2011 include the rights protected in CEDAW. The Parliamentary Joint Committee on Human Rights was created under the Act. The Committee’s process is to look to the statement of compatibility, examine how the legislation operates, and attempt to determine whether any limitation of rights has been justified. If the Committee believes there is insufficient justification, it writes to the Minister responsible for the Bill or legislative instrument and seeks further information about why the Bill limits human rights.


Interestingly, the Committee’s mandate includes examining the promotion and protection of economic, social and cultural rights under the ICESCR. However, the Australian Human Rights Commission’s mandate does not explicitly cover this treaty. Over the last year, the Parliamentary committee has been both active and effective in examining how laws impact economic, social and cultural rights.

How does the Australian Human Rights Commission use these tools?

The Australian Human Rights Commission has a key role in advocating for the promotion and protection of women’s rights. We do this in a number of ways: -

  • We receive complaints

The Commission places enormous emphasis on its complaint handling process. In 2012-2013 we received 417 complaints under the Sex Discrimination Act, nearly one fifth of all complaints (19%). It is our view that the investigation and conciliation process is an integral part of the implementation of international human rights law into people’s everyday lives. It provides people with a forum to be heard and to have their complaints resolved in a timely, efficient and hopefully effective way.

  • We conduct human rights education and increasing public awareness

For example, in 2011, the Commission published Mechanisms for Advancing Women’s Human Rights, a practical guide for lawyers, advocates and women on how to use to the Optional Protocol to CEDAW and other international complaint mechanisms. I have a few additional copies here if anyone is interested in having a look.

  • We monitor the government to ensure they comply with Australia’s human rights obligations

For example, in 2010, the Commission submitted an independent report to the Committee on the Elimination of Discrimination against Women, which outlined some of the major developments in and obstacles to the implementation of CEDAW in Australia. In 2012, the Commission submitted a second report to the Committee, which focused on the two key priority issues that the Committee identified in its Concluding Observations on Australia – violence against women and the situation of Aboriginal and Torres Strait Islander women.

Review into the treatment of women in the Australian Defence Force (ADF) and examined the effectiveness of cultural change strategies in the ADF and the measures and initiatives required to improve pathways for increased representation of women into the senior ranks and leadership. This was a special review following the ‘Skype’ incident at the Australian Defense Force Academy, leading to the conviction this week of the two young men at the Academy.

In addition we produce an Annual UPR report card. This provides an annual reflection on Australia’s progress in addressing commitments that the Government has made to protect human rights, including women’s rights, as well as identifying emerging concerns.

The outcomes of the UPR and the Concluding Observations of the CEDAW Committee provide an important basis for holding the Australian Government to its obligations under international human rights law.

  • We undertake policy, research and law reform work to advance the protection and promotion of human rights in Australia

For example, in 2012, the Commission conducted its third national telephone survey on sexual harassment in Australian workplaces. This survey provides the only national and trend data on sexual harassment in Australia. The survey is based on the right of women and men to be safe at work – to go to work free from sexual harassment.

The latest survey, found that one in three women has been sexually harassed since the age of 15 years. It also found that a quarter of women have been sexually harassed in the workplace in the past five years. The survey provides the only national data on sexual harassment in Australian workplaces. It also provides the only trend data on sexual harassment in Australia.

  • International Engagement

The work of the Australian Human Rights Commission extends to the international realm, as well. The Commission has participated in the CEDAW reporting process, and participated in the UN Commission on the Status of Women regularly.

The Commission also plays an important role in the region particularly in Vietnam and China as part of the Australian Government’s development program run by the Australian Agency for International Development (AusAid). Women’s rights have been a specific focus of these activities, and we have had the opportunity to include numerous experts in these activities including representatives from Women’s Legal Service NSW.

Under the Sex Discrimination Act, we have a Commissioner who is responsible for such advocacy and to promote awareness of the human rights of women. The Commissioner’s work is informed by the international human rights framework, in particular CEDAW. For example, the rights to non-discrimination and equality, women’s right to equal participation in political and public life and the right to equal pay for work of equal value have guided the Sex Discrimination Commissioner’s work to ensure women’s lifetime economic security and promote women in leadership.

The right to life, the rights to non-discrimination and equality, and the right to health, have all been integral to the Commissioner’s work around the prevention of sexual harassment and violence against women.

With this grounding in international human rights law the Sex Discrimination Commissioner has released publicly her opinion as to the most important priorities for gender equality in Australia.

The five issues that she has identified are:

  1. Balancing paid work and family and caring responsibilities we have seen important improvements on this issue Australia now has a paid parental leave scheme and Commissioner Broderick played an instrumental role in the development of this scheme. The Commissioner continues to lobby for improvements to the scheme, including superannuation on paid leave;
  2. Ensuring women’s lifetime economic security – the Commission has particularly focused on how to better recognise the unpaid caring work that women predominately do in Australia, and strategies to improve retirement savings for women such as through superannuation;

  3. Promoting women in leadership – the Commission has worked with male business leaders to promote better inclusion of women at the highest levels;

  4. Preventing violence against women and sexual harassment – we have again focused on how employers and businesses can contribute to addressing this issue – such as through supporting women who they employ who are victims of violence and educating their workers in order to prevent violence and harassment; and

  5. Strengthening gender equality laws, agencies and monitoring – by focusing on how our laws and policies can better promote women’s human rights.


I hope I have been able to illustrate how the Australian Human Rights Commission has used the international human rights instruments to not only advocate for women, but also empower them. In 2011, the then US Secretary of State Hilary Clinton said that the empowerment of women in business and government represents “perhaps the most consequential long-term opportunity to promote sustainable development, democracy, and economic growth.”[3]

Civil Society

I think it’s fair to say that while Australia does have some strong laws and policies that aim to protect and promote women’s human rights and fundamental freedoms, there are definitely some significant gaps and room for improvement across a number of areas.

This is where civil society and national human rights institutions have an important role to play. They can assist or encourage the government to bridge this ‘implementation gap’ between the international and the domestic system.

These international instruments provide us with the tools to advocate for changes not only within law and policy, but also practice and culture.

Education is a powerful tool for empowerment and I am aware of the extensive work the Women’s Legal Service NSW and other Community Legal Centres are doing to inform women about the legal system and their legal rights. We need all women advocating for their rights to ensure that we have a system that protects women but also promotes them.

Conclusion
This year marks the 20th anniversary of the World Conference on Human Rights, which was held in Vienna. The World Conference played an important role in rejuvenating the human rights work of the UN, but also emphasising women’s rights as fundamental human rights.

As we celebrate the achievements made over the last twenty years, it is important to develop strategies for the future.

International instruments such as the UPR and CEDAW provide an important means of holding governments accountable to their obligations to respect, protect and fulfill woman’s human rights.

At the Australian Human Rights Commission our mission is – human rights: everyone, everywhere, everyday. This really resonates with me as it highlights the fact that we all have a role to play in the protection and promotion of human rights. After all, where do human rights begin? In small places, close to home.[4]

 


[1] CEDAW recognises that many violations of women’s rights occur within the private sphere. It also recognises that when governments fail to address violations in the private realm or that are committed by non-state actors, they undermine the exercise and enjoyment by women of their human rights in all spheres of life.
[2] Joint statement by the Special Adviser on Gender Issues and Advancement of Women, Ms. Angela E.V. King, and the High Commissioner for Human Rights, Mrs. Mary Robinson, on the occasion of the opening for signature of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. 10 December 1999. At http://www.un.org/womenwatch/daw/news/akop.htm (viewed 27 August 2013).
[3] Hilary Rodham Clinton. American Global Leadership at the Center for American Progress. October 12, 2011. At http://www.state.gov/secretary/rm/2011/10/175340.htm (viewed 28 August 2013).
[4] Eleanor Roosevelt at the 10th anniversary of the Universal Declaration.

Address: 
Sydney  New South Wales  2000
Australia