Advancing women’s rights and gender
Speech by Elizabeth Broderick
Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination
Australian Human Rights Commission
Human Rights Law Resource Centre
27 July 2009
I want to begin by acknowledging that we are gathered here today on the traditional land of the Wurundjeri People of the Kulin Nation and pay my respects to their elders.
What an honour it is to be invited to speak here today, alongside Justice Yvonne Mokgoro of the Constitutional Court of South Africa. We had the pleasure of meeting in Sydney last week and comparing the experiences of women in our respective countries. I was inspired by the passion, commitment and energy that Yvonne has in taking the excellent work of her court to the world.
I have been watching with awe the developments in the South African Constitutional Court. The human rights and equality jurisprudence which has emanated from that court is both a cause for envy and a cause for optimism. I am optimistic that, with time, Australia will ‘catch up’ by affording similar equality guarantees to its citizens. Australia will draw upon the many lessons to be learnt from other jurisdictions like South Africa, Canada and the UK. Indeed this process has already begun.
Today, I would like to talk a little about our progress towards gender equality in Australia and the reforms slated for the federal Sex Discrimination Act 1984 (SDA). I will make some observations on how the Australian Government’s Human Rights Consultation might deliver for women and then trace the path which Canada and EU countries have taken from a position not unlike ours today towards enhanced protection for women’s rights and gender equality.
In doing this, I hope to address and respond to what some feminist scholars have called the ‘false promise of human rights’. By this, I am referring to the scepticism of some women and feminist theorists toward human rights principles. For some women, rights may further entrench gender-based disadvantage because they are often seen as ‘universal and abstract norms which are made in man’s image and which reflect his particular concerns’.
For example, while we have no hesitation identifying things like the public execution of men in Iran as a human rights abuse, the response is more equivocal when it comes to a woman being abused by her husband in Toorak. Human rights have more often been used to protect men in the public sphere, rather than women in the private sphere and the private sphere is often where women are demonstrably most at risk.
That being said, there are also clear examples of women successfully using human rights frameworks to achieve positive outcomes for women, such as advocacy for anti-discrimination and equal opportunity laws, anti-trafficking laws or laws banning forced marriages.
Human rights are ‘tools of liberation’ which women ‘cannot not want’ and ‘cannot not use’. Though they may have been ‘made in man’s image’, I believe that these tools are malleable.
Women must continue to use and shape human rights to ensure their access to safety, security and participation.
The Listening Tour Findings
When I first started in the role of Sex Discrimination Commissioner over 18 months ago, I decided to tour the country to see where we were at with gender equality. And I heard loud and clear that progress towards a fairer and more equal Australia had stalled. Whilst it is now hard to find examples of overt discrimination against women in Australian laws and policies, we must face the fact that formal equality has not delivered. It has not delivered true equality for many women in their daily lives. Indeed, in some respects, life is harder.
More recently, there have been a number of bright spots including the Government’s commitment to introduce paid parental leave but:
Women in full-time work earn only 84 cents in the male dollar, and 66 cents if you count part time and casual work.
Women continue to take on the majority of unpaid work caring for others, managing the household and volunteering in the community.
Women are more likely to be working under minimum employment conditions and be engaged in low paid, casual and part time work. They are more likely than men to work below their skill level in order to achieve some sort of flexibility to care for their loved ones.
Nearly 1 in 5 Australian women have experienced sexual violence since the age of 15 and almost 90% of the victims of domestic violence are female. The figures are even worse for women with disabilities and Indigenous women.
And in the public sphere, let’s be honest, men continue to lead all our major institutions: politics, the judiciary, academia, business, the professions, unions, sporting organisations, churches and so on.
I concluded that amongst other things, our national gender equality law – the SDA – needed a serious overhaul. The legislation is coming up to being 25 years old, with many provisions now outdated, having been developed through political compromise, when it was first enacted, and then with sporadic reforms on specific issues. We had planned to advocate for a review of the Act and then, through a combination of events over which we had no influence, a major review was indeed announced in June last year. We were ecstatic!
The Review of the SDA was undertaken by a federal parliamentary committee, the Standing Committee on Legal and Constitutional Affairs, chaired by Senator Trish Crossin, a long-standing advocate for women’s rights and gender equality within the Australian Labor Party. The Terms of Reference were excellent.
And then we saw the time frame. The Committee called for written submissions to be lodged within 2 months. From the Commission’s point of view, this was extremely challenging, and on a couple of fronts. As many of you will agree, the work of a National Human Rights Institution (NHRI) should be evidence-based. It should also be grounded in a human rights based approach, which requires effective consultation with the people for whom we are meant to be working. However, we realised that, with the limited time frame for this important review – indeed the first in over 10 years – the Commission did not have time to undertake the kind of consultation process that would have been preferred.
However, we had a depth of experience across the Commission, as well as key external people and organisations like the Human Law Resource Centre, all of whom were committed to making the most of this important opportunity to improve our national legislation. So, very early on, we helped establish a network of supporters and worked with others to identify the top priorities for reform.
The Committee received many excellent submissions including an excellent submission from the Human Law Resources Centre and the final recommendations mirrored many of the submissions received.
Our own Submission was extensive and wide-ranging, as we recognised that our best chance of receiving a quality outcome from the Review was to ensure that the parliamentary committee members had access to as much of our expertise as we could muster in the time frame. Our final submission was some 300 pages long!
However, that is clearly not its strength. The strength lay in the approach we took to our recommendations – whereby we called for a two stage approach to amendments, with some amendments to be made immediately (reform to sexual harassment provisions, family responsibilities, breastfeeding as a protected attribute, extended coverage) and a second stage of reforms to be the subject of further research and investigation. This included an investigation into the merits of an Equality Act.
This is an approach that was a point of consensus amongst the network of NGOs and academics with whom we were working, recognising the political constraints under which law reform occurs. Ask for too much straight away, and you may end up with nothing. This was also the approach adopted by the Committee in its final report.
Importantly, the Committee also recommended that a general prohibition against sex discrimination and sexual harassment in any area of public life be inserted into the Act. It also supported a general equality before the law provision equivalent to s10 of the Race Discrimination Act.
The Committee’s Report sets out a clear road map for reform of the SDA. We are now gearing up for the 25th Anniversary celebrations, and we will use this celebration to call for the implementation of the Committee’s recommendations.
The Human Rights Consultation
In the meantime, the Commission and other human rights organisations and advocates are waiting with bated breath for the final report of the Human Rights Consultation Committee with hopes for a statutory charter of rights, or a national Human Rights Act as it is now commonly referred to. The Commission supports a Human Rights Act.
Several months ago I conducted a number of workshops for women to encourage submissions to the Human Rights Consultation.
Women were not among the most vocal participants or public advocates during the recent Consultation. From my experience, women’s services workers are exceptionally busy and pragmatic women and to date, the language and concepts of human rights have not generally been used to bring about great change in the issues which are of most concern to them.
In both the Brisbane and Canberra workshops, the primary issues women raised were economic, social and cultural rights, gender based violence and access to appropriate housing, health, education, advocacy and support services. One of the goals of the workshops was to extend women’s understanding of the use and applicability of human rights to these issues. I believe that the ongoing input of women will increase the chances of getting a system of human rights protection that will better address the needs of women both here in Australia and internationally. As human rights educators and advocates it is our responsibility to continue this conversation past the life of the Consultation as far as our limited resources allow.
So, I am hopeful that our national laws will be improved to strengthen equality rights for women in Australia, both through modernising the SDA, and through a statutory human rights law. Ultimately, I hope to see equality protection in our national constitution. More on that later.
However, regardless of how strong our laws are, the greatest challenge is for us to ensure that the women who need their protection most, are the ones who will be the greatest beneficiaries, both inside and outside the courts.
For example, while women in the Brisbane workshop were supportive of legislative protection and legal remedies for human right breaches, their support came with a significant proviso. Their submission recommended that:
“Legal and other remedies for human rights breaches must be accessible for all Australians if they are to improve the protection of those rights.
Many women do not currently have the resources to pursue legal action or adequate legal representation or advocacy in tribunals and other decision-making forums. Human rights legislation should therefore be accompanied by improved access to legal representation and advocacy. This could include increasing funding to women’s advocacy services, community legal centres and legal aid to ensure improved access to justice for women.
Human rights education and other strategies to raise public awareness are a crucial part of increasing marginalised people’s access to justice.”
As I said to the women at the workshop in Brisbane, laws matter. But law is not just about what goes on in the courts. Ten years after the UK passed a Human Rights Act it has been shown that as well as the legal avenues offered by the Human Rights Act, one of the most valuable things about the Act was that people every day were going about their lives benefitting from the law without resorting to the law. Extra-judicial processes and tools are of particular importance to the protection and fulfilment of the rights of women.
Let me now conclude by turning briefly to the Canadian and European experience. Canada and the EU countries have moved from a position not unlike ours today, towards enhanced protection for women’s rights and gender equality.
Canada: Constitutional equality guarantees
I want to look first at the Canadian Charter of Rights and Freedoms, which came into effect from 1982 to 1985. It brought two constitutionally-entrenched equality guarantees on to the Canadian rights landscape – the first a general equality guarantee (on grounds including sex) and the second a specific guarantee of the rights and freedoms in the Charter to men and women equally. These were the fruits of two years’ of impassioned lobbying by women for stronger protections than those previously available under the statutory Canadian Bill of Rights of 1960.
Prior to the entrenchment of these ‘sex equality guarantees’, women in Canada had recourse to only the principles of the common law and statutory interpretation, and the narrowly interpreted sex equality provision under the Bill of Rights. In the infamous Persons caseof 1928, the Supreme Court of Canada unanimously held that the word ‘persons’ did not include women. Fifty years later, in Bliss v A.G. Canada, the Supreme Court held that Stella Bliss was not discriminated against because she was a woman but because she was pregnant and so ‘the discrimination arose not because of law, but because of nature’. This all goes to illustrate that ‘[t]he history of the common law is a history of courts denying equality to women.’
Contrast this with the post-1985 experience. Though it got off to a slow start, the Charter advanced women’s interests by placing legal principles within women’s experiences and shaping them to be more responsive to women’s needs. For example, in a 1987 case, Action Travail des Femmes v CNR, the court held that the company’s actions (which limited workplace opportunities for women employees) constituted systemic sex discrimination. In this way, the Supreme Court recognised that discrimination could take place without intent to discriminate and that it was necessary to look at the results or impact of employment policies which appeared on their face to be neutral.
It is not only the equality guarantees which afford women protection. New Brunswick (Minister of Health and Community Services) v G.(J.) was a 1999 case in which a mother successfully established a positive obligation by the government to provide her with legal aid for a custody hearing. Ms Godin lived in poverty. The Minister of Health and Social Services had been granted custody of her three children and was seeking to extend this for another three months. Ms Godin applied for but was denied legal aid for the custody hearing because legal aid did not cover temporary custody hearings. She applied to the Supreme Court of Canada for an order that funds be provided for a lawyer and asked for a declaration that the restricted eligibility for legal aid violated her rights to life, liberty and security of person under s 7 of the Canadian Charter.
The Supreme Court found that Ms Godin was entitled to legal aid in the circumstances. It reasoned that when government action triggers a hearing in which the interests protected by s 7 of the Charter are engaged, it is under an obligation to ensure that the hearing is fair. One of the judges in that case, supported by two others, wrote a separate opinion recognising that ‘[t]his case raise[d] issues of gender equality because women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings’. What is more, this decision had a wider impact – judges in provinces where legal aid was not given in custody cases began to order it on a case-by-case basis, and just as women are disproportionately affected by child protection proceedings, women stood to benefit from this increased access to legal aid in custody cases.
It is significant how much the Canadian jurisprudence has evolved, from a formal equality approach to a much more purposive, substantive equality approach – so much so that it is now beginning to recognise a positive obligation on the part of government to take a measure which promotes equality. This is particularly impressive given its common law roots, which saw the Supreme Court deny women the status of ‘persons’.
So, the Canadian jurisprudence demonstrates that constitutional guarantees of sex equality and other entrenched rights are powerful tools which women can wield in their interests. These guarantees opened the door to women to break new ground and seek redress for their social or economic disadvantage using previously unheard arguments before the courts.
European Court of Human Rights jurisprudence
Across the Atlantic, a similarly ground-breaking outcome had been obtained twenty years earlier in 1979 by Mrs Airey against Ireland in the European Court of Human Rights in Strasbourg. Mrs Airey sought a judicially ordered separation from her abusive husband and was denied legal aid. The court found that this was a violation of her right to access a court for determination of her civil rights and obligations (protected under Art 6 of the ECHR). The court’s reasoning was that remedies must be effective and not illusory, and effective access to the courts required that Mrs Airey be provided with legal assistance.
This case is particularly significant for women because it recognised that there are economic, social and cultural dimensions to civil and political rights (and in fact, they are indivisible). And while civil and political rights have historically received far greater attention in courts, it is social and economic rights which have ‘particular resonance for women because they articulate women’s lived experience of human rights violations’.
What Australia’s path might look like
Turning now to what Australia’s own path might look like...
Australia does not have a constitutional guarantee of equality rights like Canada does. Nor do we even have a federal statutory protection of equality before the law like the one that existed under the Canadian Bill of Rights of 1960. The Committee on the Convention on the Elimination of All Forms of Discrimination Against Women has on two occasions expressed concern about our lack of constitutional guarantees for equality of the sexes – as far back as 1994 and again in 2006.
Also in 1994, the Australian Law Reform Commission expressed its support for the entrenchment of an equality guarantee in the Australia Constitution. Agencies which supported this included the QLD Anti-Discrimination Commissioner, the NSW Ministry for the Advancement of Women, the Victorian Commission for Equal Opportunity and the Commonwealth Office of the Status of Women.
In its submission to the National Human Rights Consultation Committee, the Australian Human Rights Commission expressed its support for the start of a national dialogue to reform the Australian Constitution to include a general guarantee of a right to equality. The terms of reference given to the Committee expressly excluded a constitutionally entrenched bill of rights. Even if they had not, the political reality is that there are currently many obstacles to amending Australia’s Constitution. A review of our record on Constitutional change would confirm that a referendum now or in the immediate future is likely to fail.
Law is just one part of an overall strategy
Some feminist scholars are sceptical of what human rights hold for women. Many often argue that legislative enactment of rights does not necessarily lead to their effective enforcement. I agree – the law alone is not enough because ‘laws are not self-implementing, nor are they self-interpreting.’
‘For [any] charter [of rights] to make a positive difference in women’s lives, women will have to use it, and judges will have to adopt certain interpretations and reject others.’
This is already the case with the Sex Discrimination Act and other federal anti-discrimination law. While there is little controlling which interpretations a judge will adopt and which he or she will reject, law is too powerful a tool not to be used by women. The Canadian jurisprudence I have just discussed is testament of this.
The best approach, in my view, is to recognise the utility and power of law (and human rights law in particular) without stopping there. It is important to use law coupled with:
First, the political, social and economic context in which the law operates; and
Secondly, alternative avenues of redress outside of the court room.
I hope to have illustrated today, why it is that women ‘cannot not want’ and ‘cannot not use’ human rights. I have presented the case for why Australia must have a comprehensive system of human rights protection to promote gender equality. This includes strong gender equality law, a statutory charter of rights and a constitutional equality guarantee. This system must be supported by broad based education that makes clear - gender equality is a human right.
Human rights present possibility after possibility for promotion of gender equality. Human rights principles may have begun as the tools of men, made in their image, but that was over sixty years ago.
Let’s not forget that it was Eleanor Roosevelt who was the driving force behind the Universal Declaration of Human Rights. From Roosevelt to Obama (or more importantly from Eleanor to Michelle), a lot has changed. And we have the power to create further change.
We, change agents, need the law just as the law needs us.
We can create a fairer and more equal Australia. Join with me. Let’s make it happen.
 See, for example, A McColgan, Women under the law: The false promise of human rights (2000).
 J Conaghan and S Millns, ‘Special Issue: Gender, Sexuality and Human Rights’ (2005) 13 Feminist Legal Studies 1, p 2.
 W Brown, ‘Suffering Rights As Paradoxes’ (2000) 7 Constellations 230, p 231.
 See Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Committee on the Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality (1 September 2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 28 July 2009).
 Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008). At http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 28 July 2009).
What’s in it for Women? A submission to the National Consultation on Human Rights from a coalition of women’s organisations in Brisbane, 2008, pp12-13.
Reference re Meaning of the Word ‘Persons’ in s. 27 of the B.N.A. Act  S.C.R. 276.
  1 S.C.R. 183.
  1 S.C.R. 183 at 190.
 G Brodsky and S Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (1989), p 13.
 (1987) 76 N.R. 161.
New Brunswick (Minister of Health and Community Services) v.G.(J.)  3 S.C.R. 46.
New Brunswick (Minister of Health and Community Services) v.G.(J.)  3 S.C.R. 46 at  per L'Heureux-Dubé, Gonthier and McLachlin JJ.
Airey v Ireland  2 E.H.R.R. 305.
 M Jackman and B Porter, ‘Women’s Substantive Equality and the Protection of Social and Economic Rights under the Canadian Human Rights Act’. At http://www.equalityrights.org/cera/docs/MJ&BP.htm.
 Committee on the Elimination of Discrimination Against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc A/49/38(SUPP) (1994), para 384. At http://daccess-ods.un.org/TMP/5758227.html (viewed 28 July 2009).
 Committee on the Elimination of Discrimination Against Women, Concluding comments of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/C/AUL/CO/5 (2006), para 12. At http://daccess-ods.un.org/TMP/5848229.html (viewed 28 July 2009).
 See Australian Law Reform Commission, Equality Before the Law: Women’s Equality (1994), p 61.
 Australian Human Rights Commission, Submission to the National Human Rights Consultation (15 June 2009), para 692.
 G Brodsky and S Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (1989) p 27.
 Brodsky and Day, p 27.
 W Brown, ‘Suffering Rights As Paradoxes’ (2000) 7 Constellations 230, p 231.
 Australian Bureau of Statistics, Personal Safety Survey, 4906.0 (2005), p. 7
 Access Economics, The Cost of Domestic Violence to the Australian Economy: Part 1 (2004), p. vi.