Human rights, Democracy and Women's Choices

Human rights, Democracy and Women's Choices

Speech delivered by Commissioner Pru Goward, Federal Sex Discrimination Commissioner at Hunter Valley Research Foundation Lecture Series, Newcastle City Hall, 3 September 2002.

• It is a great honour to have been invited to speak as part of the Hunter Valley Research Foundation lecture series.
• 'human rights, democracy and women's choices'.
• Each of these concepts has been the subject of much debate amongst great thinkers, philosophers and social critics.
• together, they make a successfully functioning civil society in the 21st century.
• But where do human rights intersect with democracy, and what does it have to do with a woman's freedom of choice?
• The most recent development of human rights has focused very much on the rights of the individual. In fact it is about respect for each other and each others choices. They are based on the assumption that our humanity confers certain rights and obligations on us all, and that this is universal.
• However they derive, at least in part, from Judeo-Christian ethics- from the dictum in Leviticus in the Old Testament as echoed in the new by Jesus, that we should love one another.
• The recognition of these rights occurred after World War II.
• Before this time, governments' obligations to their citizens were considered principally to be internal, domestic, affairs.
• However, the conflagration of World War II and the insidious lead-up to it made it clear to the community of nations that respect for human rights would be fundamental to securing future world peace.
• As demonstrated by that war, man's capacity for inhumanity meant that it was no longer good enough to rely on ethical values endowed by religious belief. In Christian Europe, this had clearly failed. The rule of law was required.
• The way in which governments treated their citizens became very much a matter of international concern - the United Nations was established and a body of international treaties and law created.
• Today, four generations of human rights are recognised:
• Civil and political rights are those from which the whole philosophy of human rights developed, namely the protection of the individual from the arbitrary exercise of power by the state.
• These are the rights without which we do not recognise a functioning democracy.
• They include the fundamental freedoms of association, speech, peaceful assembly, thought, conscience and religion. They also include the protection of individuals from torture, arbitrary detention, inhumane treatment and abusive justice processes.
• Economic, social and cultural rights are regarded in international law as rights to be achieved progressively as they become affordable.
• These rights are concerned with our material, social and cultural welfare. Here we find the right to work and to social security, to health care and education. Also, the minimum labour standards relating to safe working conditions, minimum leave entitlements and maximum hours of work, child labour and equal pay for work of equal value.
• The right to development is based on the concept that "development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of [its] benefits". [1] The ultimate objective is a new international economic order.
• The fourth generation of emerging rights are gathered together as collective or solidarity rights. They include the right to peace and a healthy environment. Here too belong rights of peoples - most notably those rights which aim to secure the cultural survival of Indigenous peoples.
• How are these concepts translated into reality?
• Through government. Because although human rights do not derive from governments, their protection and enjoyment depend on governments to recognise them.
• That is why good governance is so important, for our well being, functioning as a society and happiness as humans.
• The recent work of Roll and Talbott, two American development economists, is useful on this point.
• Their study of the richest and poorest countries demonstrated that 80 per cent of the difference in living standards between them can be attributed not to natural resources or the intelligence of the locals, but to how well ordered the community was, how obedient to its laws, how respectful of the rights of its people.
• Think about poor countries with wonderful resource endowments compared with rich countries with poor resources (say Nigeria, with its wonderful resources and poor standard of living and Singapore, where they even have to buy their water from overseas).
• Good governance promotes prosperity and high living standards for one very simple reason; it makes living in groups cheaper and more effective.
• Good governance is the outcome of respect for human rights. In their absence we find countries with lawlessness corruption and immorality- poor governance.
• Respect for Human rights leads to effective governance because it strengthens the bonds of trust between people.
• When people don't trust each other they don't work collectively together, they don't share, they don't talk; they also don't invest or take risks.
• When this happens you need vast armies to achieve the same level of control and social organization as we enjoy transparent and open democracies. Alternatively we end up with chaos.
• Governments unconcerned with human rights thrive in these environments, where control not respect is central. The end result being unhappy, unproductive societies.
• So where do women's choices fit into all of this?
• Human rights, which operate most effectively in democracies, provide for choice.
• Without rights, there are no choices. Where rights are compromised or limited, so are choices. The free exercise of choice optimizes a nation's economic, social and spiritual outcomes.
• Is Australia this sort of country?
• And, if we want to focus on women's choices - we follow this up by asking what does this tell us about the ability of women to make choices?
• So let's look at our outcomes. What is the 'stock take' for women in Australia today?
• Women today account for 44 per cent of the Australian labour force. [2]
• Women aged between 20-54 have an overall labour force participation rate of over 70 per cent. Women are an increasingly integral part of Australia's workforce, and working is an increasing integral part of women's life experiences.
• Women have more professional and career choices then ever before.
• Although still grossly underrepresented in positions of power and status, women hold more of these positions today than ever before.
• They make up 27 per cent of Commonwealth parliamentarians - with 22 senators and 38 members of the House of Representatives. This is a very significant increase from just 14 per cent in 1995. [3]
• They are starting to appear in corporate boardrooms and as company directors.
• Although still in insignificant numbers - women only comprise 1.3 per cent of executive directors, [4] at least they are vaguely visible in this male domain, which is more than they ever were before.
• From this picture can we conclude that today, women's ability to exercise choice is better than ever before? That their rights are fostered, protected and integral to the functioning of Australian society in the 21st century?
• The figures suggest not. But more than statistics, there is a broader picture to be considered.
• Looking at outcomes beyond workforce participation rates and numbers of women holding positions of power we see a very different picture.
• One that will lead us to conclude that systemically, something is going wrong.
• Let me explain.
• Biology means that women are the bearers of children. Today, they remain the primary carers for children.
• Australia's fertility rate currently sits at 1.7.
• This is below the necessary replacement rate of 2.1. It is below the 2000 rate of 1.75, and even further below the 1990 rate of 1.9.
• The average age of first time mothers is currently 29.8. Every year women having their first child get older. In 1995 the average age of first time mothers was 29.1, in 1990 it was 28.3. [5]
• This tells us that today women are having fewer children later in life, if at all.
• Correlating the high workforce participation rates for women with this trend in family formation we can draw that conclusion that women are not finding it easy to exercise the choice to both work and have children. A choice that men can make very easily.
• Women, on the other hand, have to choose between the two - and when faced with this choice, it is work that wins.
• This is assuming that they can even make this choice.
• The cost and structure of life today often dictate their decision.
• Let me explain.
• First, Education and training periods are longer, meaning earning capacity begins later in life for most young men and women.
• Then, the nature of work has changed. Few young people enter the workforce with permanent full time jobs the Bank is going to lend money for a home on. Contract and project work is very common, with the consequence that not only do home mortgage lenders feel understandably uncertain about the young couple's prospects, but so does the young couple! They too, are unwilling to commit to family responsibilities when the job is over in a few months time!
• Add to this the real cost of living - which is high. In particular, housing affordability, Australia-wide, has declined by 29% within the space of a generation. You need two incomes to carry the mortgage on the slum of your dreams, forget the 4 bedroom mansion with the spa bath and optional pool room!
• Into this heady pressure pack, families factor children - for women, this means adding in the responsibility of being primary carer-giver.
• Women know this will not be easy.
• From very early on they find out that there is considerable workplace disadvantage to be had as a result of their motherhood, or potential for motherhood.
• Women receive less pay, less opportunity, and less financial support in the workplace because they bear children.
• Women still only earn 84 cents in the male dollar, when comparing average weekly ordinary full time earnings.
• This gap occurs for a number of reasons as we know - basic Neanderthal discrimination; perhaps, women's career expectations; workforce gender segregation which is ongoing and high; and, of course, family responsibilities.
• The gendered nature of family responsibilities form the greatest barrier to equal pay.
• In many ways they are intertwined.
• First, women who negotiate with bosses for salaries quite often end up with less then their male counterparts doing the same job. They arrive at the bargaining table feeling that they will have to forfeit a higher salary because they know one day they may need greater workplace flexibility or they may have to take days off due to commitments to their children. Men - many of whom will become or are fathers don't even consider factoring these things when they sit down to 'talk figures'.
• Second, that promotion often isn't available to women, nor are the extra hours, nor is the senior position available in the interstate office for three months because they need to get home to their kids.
• The disparity in the earning ratio between women and men grows to 66 cents in the dollar when part time and casual workers are added into the equation.
• It is not surprising then to find that it is women making up 73 per cent of all part time employees and 60 per cent of the casual workforce.
• Women in Australia are most likely to have children when they are between the ages of 30-34. This is the age when women are most likely to be combining work and family. It is no coincidence that it is when the earnings of men and women over 30 are compared that the earning gap is most obvious.
• The workplace disadvantage does not end at disparate earning ratios.
• It still comes as something of a shock for many independent and confident young women when they discover a whole new world of discrimination or barriers to work when they embark upon parenthood.
• During pregnancy, there are still many employers who consider that women do not work as productively, while pregnant- they either demote or dismiss them, deny them training or otherwise allow their careers to stagnate. A front office job may quickly become a back office job should a boss decide that a life-bulging stomach is unsightly.
• This treatment does not end after the birth.
• For women who want and choose to breast-feed, many work places cannot or will not provide suitable conditions for the expressing of milk.
• Many women have to settle for unchallenging jobs, or to forego promotions in order to secure part time work or flexible hours.
• There remains a perception that part time work cannot be challenging and that part time workers are not sufficiently committed.
• Women often experience a lack of sufficient financial support during maternity, no guarantee that a job is there when they return from maternity leave, difficulty accessing affordable childcare, difficulty finding hours that suit their families, or poor access to flexible work conditions which would allow them to occasionally take time off for family reasons.
• This was highlighted only recently in a case decided in Federal Magistrates Court. [6]
• The case involved an employer at a poker machine manufacturer who refused a request by a female employee to take her lunch break from 2.55 to 3.25pm.
• This would allow her to collect her child from pre-school and drop the child at a neighbour's house.
• The magistrate found that this was a reasonable request and the employee had been unlawfully discriminated against on the basis of family responsibilities.
• The case was appealed by the employer in August this year, however the appeal was overturned - this decision remained.
• The decisions in this case suggest that there is a de facto right to part time work in Australia.
• The attitudes of employers, such as the one in this case, suggests however that even if this right is recognised legally it is not adhered to in reality.
• Women are also the ones who end up taking large amounts of unpaid leave, or just time out of the workforce, further contributing to the direct economic cost they bear for having our children.
• And if you query this, if you think that families will always share their income, do I need to remind you of the high rate of divorce over the long term? and the higher reliance of older women on social welfare compared with the reliance of older men?
• This is the complete picture.
• One that tells you that although women, like men, have the right to work and have children, structures and attitudes mean that for women - having both - is rarely a real choice.
• If women are to realise their right to fully participate without discrimination in the workplace we need to do at least one of two things - change gender roles or change the workplace.
• Our best bet may be to change the workplace - to create an environment that welcomes women as we are - including our family responsibilities.
• This is called substantive equality - delivering equality of outcome for women in work -delivering our right to work.
• How do we go about doing this?
• We implement family friendly work practices and attitudes.
• At the moment we are in the midst of a national debate on introducing paid maternity leave into Australia.
• No one is suggesting that paid maternity leave alone can address the entirety of the workplace disadvantage experienced by women as a result of them having children, but it definitely has a role to play as one of a suite of provisions that will make it possible for them to work and provide care for children more easily.
• Why?
• Because paid maternity leave will mean that women can afford to be out of the workforce, while recovering from childbirth, establishing a breastfeeding routine and bonding with a child without the stress that they cannot financially afford to be doing this.
• It will go someway to addressing the loss of income, and therefore, at least slightly reduce the gender pay gap.
• Paid maternity leave also provides the cultural recognition within the workforce and within society that women work and are the bearers of and primary carers for children.
• It is some acknowledgement of the importance of women's roles.
• It will recognise the non-work related responsibilities of half of the people in the workforce.
• In failing to provide this entitlement Australia is essentially saying that we do not recognise that women, who bear this particular responsibility, are entitled to the same workforce respect and recognition as the bloke who uses his defence leave entitlement to go into the army for 12 months, those who take study leave or long service leave or the person who accesses their entitlement to jury duty leave.
• Paid maternity leave is one measure that will allow women to choose to work and have children. It cannot however stand alone.
• We know from all of our consultations with women and unions that access to part time work and flexible hours is a huge issue. So, too is access to affordable childcare.
• How did a discussion about human rights and governance end up as a discussion on childcare?
• Easily, because putting in place such measures is what realising human rights really looks like.
• It is what will increase women's choices in a real, tangible way.
• Of course, it important for governments to be committed to principles, ideals and concepts. They must sign conventions and ratify treaties and make motherhood statements.
• This activity must however be accompanied by change and action.
• It is family friendly work practices and attitudes that will ensure that in practice, not just theory, women in Australia will be able to both work and have children.

1. Preamble, Declaration on the Right to Development (1986) at www1.umn.edu/humanrts/instree/s3drd.htm.

2. ABS 6203.0 Labour Force Australia August 2001, 26.

3. United Nations Human Development Report 2002 United Nations, 226.

4. ILO Breaking through the glass ceiling: Women in management 2001.

5. ABS 3301.0 Births Australia 2000, 59.

6. Song v Ainsworth Federal Magistrates Court, 28 August 2002.

Last updated 10 September 2002.