Promoting Women in Leadership

Launch of the UN Women Report Progress of the World’s Women: In
Pursuit of Justice in Sydney

Speech by the Hon Catherine Branson QC, President of the Australian Human
Rights Commission

Thursday, 7 July 2011

Acknowledgement

Let me join those who have spoken before me
in 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, and to Aboriginal and Torres Strait Islander leaders we have with us
tonight.

Introduction

Thank you very much to UN Women
Australia for inviting me to be with you this evening, and thank you to Michael
Rose of Allens Arthur Robinson for hosting this event. I also acknowledge that
we have with us tonight several members of parliament, members of the Australian
legal fraternity and many supporters of gender equality here in
Australia.

I am honoured to have been invited to
launch this Progress of the World’s Women report.

As a woman
whose career has involved stints as a legal academic (albeit a junior one), a
solicitor, a legal researcher, a government lawyer, a barrister, a Federal Court
judge and now a human rights practitioner, I am delighted that this year’s
report focuses on the role of women in justice systems. I have long believed
that equality for women cannot be achieved without women assuming leadership
roles, in more than tokenistic numbers, in all aspects of the administration of
justice. Throughout the world, including in Australia, we are still in the
process of seeing this aspiration realised.

The report that we celebrate
this evening contains a cogent analysis of the ways in which justice systems
continues to fail women – but, perhaps more importantly, it also
identifies ways in which women around the world have been using justice systems
as tools for their own empowerment. With the advent of UN Women and the
adoption of its 2011-2013 Strategic Plan just last week, the report also makes a
timely call for the promotion of women to leadership roles.

I do not have
time this evening to do justice to the rich content of this report. I will try,
however, to outline some of the key points and findings of the report
emphasising topics of particular relevance to Australia.

Key Points
of the Report

The report begins with an outline of cases from all
around the world in which women’s rights have been upheld. It highlights
how women are using strategic litigation, including before human rights
tribunals and treaty bodies, to attain justice at both the individual and
systemic levels.

We can read of the case brought against Austria on
behalf of two women murdered by their husbands after repeated failures by law
enforcement and judicial officers to detain the men despite their breaches of
protection orders. The CEDAW treaty body found against Austria - usefully
reminding us that the obligation on all states to protect women from domestic
violence extends beyond passing laws to ensuring that those laws are properly
implemented.

We can also read in the report the inspiring, and I think to
this audience probably well-known, story behind the decision of the High Court
of Botswana in Unity Dow v Attorney-General of Botswana. A number of us were
privileged to hear the former Justice Unity Dow tell this story at the UN
Women’s International Women’s Day Breakfast this year. Before she
was appointed a judge, Unity challenged the law of Botswana that rendered her
children non-citizens in Botswana because she had married a foreigner. As a
consequence her children were not entitled as of right to live in Botswana, they
could only travel on her husband’s passport, and they would not enjoy the
other benefits of citizenship such as access to free university education.
Unity successfully argued that the guarantee of equality in the constitution of
Botswana rendered invalid the discriminatory citizenship law. This case is, I
suggest, a timely reminder of the value of constitutional equality clauses as
means of exposing and challenging long-standing and discriminatory legal
norms.

However, as we know, and as the report acknowledges, legislative change
is just one side of the coin of women’s interaction with the justice
system. While a legal and constitutional framework that guarantees women’s
rights is fundamental to women’s access to justice, it is not of itself
sufficient. Governments must also assume responsibility for the impact of their
laws.

The report illustrates this important point in a number of ways
– including by examining the responsibilities of governments to ensure
substantive equality for women in formal employment. When I read this part of
the report I naturally thought of the case, which I will return to shortly,
recently brought by the Australian Service Union seeking an equal remuneration
order in respect of the largely female social and community services industry.
The report notes the significant expansion in recent years of women’s
rights in the area of formal employment, as illustrated by 117 countries passing
equal pay laws, 173 countries guaranteeing paid maternity leave and 117
countries outlawing sexual harassment in the workplace. Indeed, Vietnam has
adopted as a special measure the legal requirement for an employer to give
preference to a woman who satisfies all recruitment criteria for a vacant
position in an enterprise!

Nonetheless, the report notes that gaps in
employment laws, lack of enforcement and inadequate policies including with
respect to childcare, continue to limit women’s employment
prospects.

More generally, the report makes clear that the barriers that
women face in accessing justice worldwide are daunting. They include
women’s lack of knowledge of their rights, dependence on male relatives
for resources, and the stigma that can fall on women if they seek or threaten
legal recourse - the last of these barriers we have recently seen in operation
following the making by more than one woman of allegations against former IMF
chief Dominique Strauss-Kahn, and, closer to home, in the aftermath of
allegations made against the chief executive of David Jones.

In countries
with more than one legal system, the challenges for women increase. Often
customary legal systems contain discriminatory laws and do not proscribe
gender-based violence. The report calls on governments to recognise their
responsibility to address gender-specific barriers to justice. It proposes
important strategies such as increasing the number of women in front line
services, and providing support to women engaging with Indigenous justice
systems. We should not ignore the need for strategies of these kinds in
Australia.

How Australia compares

As I have mentioned, this
report highlights the necessity for there to be well-functioning legal and
justice systems in order for women to achieve their rights. In Australia we have
in place many of the fundamental blocks for an effective legal system.
Unfortunately, this has not yet translated into high levels of gender equality
in Australia.

In the 2010 ‘Global Gender Gap Report’, which
measures gender equality in relation to economic participation and opportunity,
education attainment, health and survival and political empowerment, Australia
was ranked twenty-third.^[1]

Despite making up 45% of Australia’s total workforce, and despite
constituting the majority of university graduates in Australia, women remain
seriously under-represented in leadership and management positions in virtually
all sectors of Australian society. For instance, 65% of law graduates are
female^[2] yet the
numbers of female partners in the major law firms remains low and women are
significantly outnumbered by men at the Bar and particularly at the senior Bar.
In my old court, the Federal Court of Australia, women make up only 16% of the
bench^[3] and this
report indicates that Australia ranks 43^rd next to Angola and Latvia
so far as female representation in the judiciary generally is concerned. In the
corporate sphere, women chair only 2.5% of ASX200 companies and make up only 8%
of executive management positions^[4].
In the public arena, only 30% of our national politicians are
female^[5] and as at July 2010, women
made up only 37% of the Senior Executive Service in the Australian Public
Service^[6]. The gender gap
in pay in Australia has actually widened to 17 per
cent^[7]. In terms of gender equality
Australia falls behind comparable countries such as New Zealand, the United
Kingdom, Spain, Germany and the Nordic countries, who all ranked in the top 15.

Positive steps being taken in Australia

However, despite
our comparative ranking, there have been significant gains made in Australia
particularly in terms of strengthening the legislative and institutional
framework for gender equality.

The report recommends that
gender-sensitive law reform be implemented. We are fortunate to have had a
national Sex Discrimination Act for over 25 years. You may be interested to know
that in the financial year 2009-10, 21% of all complaints received by the
Commission were made under the federal Sex Discrimination Act. Almost 4 out of 5
of these complaints were made by
women^[8] and most were based on sex
discrimination in relation to pregnancy, sexual harassment and family
responsibility. Importantly, the Sex Discrimination Act also provides for
temporary special measures to be implemented, which, as the report notes, can be
critical to the achievement of substantive equality for women.

Recently,
the Commission advocated for amendments to strengthen the Sex Discrimination
Act, and I am pleased to say that the amendments that we sought were largely
made in June 2011. As a result, the Sex Discrimination Act now prohibits
discrimination against employees on the ground of family responsibilities and
breastfeeding and prohibits sexual harassment in workplaces and schools
conducted by way of new technologies.

Australia has also had a long
history of strong labour laws, including equal pay legislation. However, we
continue to have female dominated sectors where the remuneration for workers is
not equal. As I mentioned before, the Australian Services Union and others have
brought a case before Fair Work Australia for an equal remuneration order in the
social and community services industry. The Commission made submissions on the
case. Fair Work Australia released an interim decision finding that women in the
social and community services sector do not receive remuneration equal to that
‘of employees of state and local governments who perform similar
work’. I am hopeful that the outcome of this case will see an increase in
the wages of the almost 200 000, mostly female, social and community sector
workers across the country, particularly those working in health and community
service industries.

The UN Women report also notes the importance of
extending the protection of the rule of law across a range of areas that impact
on women, including violence against women and girls, and women’s economic
participation. In order to have effective access to justice for women, the
report notes how important it is to address the inter-relatedness of rights. We
know that failure to respect the right to live free from violence, including
sexual violence, can directly impinge on women’s rights to education,
health, housing and employment.

It was in this context that the
Commission warmly welcomed the launch earlier this year by the Australian
Government of the National Plan to Reduce Violence Against Women and their
Children. The Plan is significant in that it sets out a national approach to
preventing and providing redress for sexual assault and family and domestic
violence across Australia. It will be important in ensuring that all Australian
women are potential beneficiaries of this plan that specific measures are put in
place for women who may not be able to access services as readily as others,
including Aboriginal and Torres Strait Islander women, culturally and
linguistically diverse women, women with disabilities, lesbian and trans women,
older women and young women and girls. It will also be important for proper
independent monitoring and evaluation mechanisms to be established, in order to
be able to assess the effectiveness of the plan.

The Commission also
advocated for a national Paid Parental Leave Scheme and was particularly pleased
that Australia joined the club of 173 countries with such a scheme in January
2011. This is a vital development for addressing the workplace disadvantage
that women experience as the result of their maternal role. The Commission has
since made recommendations for improving the scheme such as the addition of a
superannuation component.

Incidentally, I have long believed that women will
not achieve true equality at work until they enjoy true equality at home. I was
therefore delighted to learn from the report that after Sweden 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%! Australia can do
better in this area - but it is pleasing to see that we are making a start with
the Government having committed to providing two weeks paid paternity leave pay
for eligible working fathers and partners in 2013.

Finally, the report
makes a specific recommendation for women’s legal organisations to be
supported. The report found that women’s legal organisations were
invaluable in increasing the accessibility of the justice system for women. Our
experience at the Commission confirms the accuracy of this finding both in the
Australian context and internationally. At home we are pleased to be able to
work with, and support the work, of a number of women’s organisations,
including not only mainstream organisations such as UN Women and the Country
Women’s Association, but also the Marninwarntikura Women’s Resource
Centre from the Fitzroy Valley, Women With Disabilities Australia, the
Australian Muslim Women’s Centre for Human Rights, the United Muslim Women
Association Inc and African Women Australia Inc.

Internationally we
work with the All China Women’s Federation, which has close to a million
women’s committees at the grassroots level, and the comparable Vietnam
Women’s Union, to jointly address issues including domestic violence and
legal empowerment.

Returning to the domestic context, the Commission
has identified three ways in which women’s organisations, both legal and
non-legal, can be better supported in the Australia. First, women’s
organisations and representatives should be funded so that they can fully
participate in decision-making processes. Secondly, the government should
undertake meaningful and ongoing consultation with women’s organisations
when developing policy. Thirdly, Australian delegations to international
intergovernmental bodies should reflect the diversity of women in
Australia.

It is crucial that women leaders have the opportunity to share
their skills, experience and insights with others in Australia and abroad.
Women’s organisations ensure that women are able to have a voice in the
formation and implementation of legislation, policies and services which affect
their lives and the lives of others in the community. There is an urgent need in
Australia to lift the profile of, and provide support to, women who are making a
genuine difference in their communities. Their participation in decision making
must be actively promoted by Government if they are to realise their true
potential as drivers of women’s
empowerment.

Conclusion

Allow me to now say a few words in
conclusion.

The Executive Director of UN Women, Michelle Bachelet, noted
in the forward of the Report that she had witnessed a transformation of
women’s legal rights in just one generation. I have done the same and this
might be one of the reasons that I remain optimistic that even more 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 Adelaide, 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
remember that early in my career I was privileged to experience the personal
support of Australia’s first female superior court judge, Justice Roma
Mitchell of the Supreme Court of South Australia, who took up her judicial
appointment in the year that I commenced studying law - a time, I interpolate,
when women in South Australia were not able to serve on juries. Only a few
years earlier Roma Mitchell had become Australia’s first female QC and, of
course, she went on to be Australia’s first female University Chancellor
and first female Governor. I remind myself 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. While change may feel slow, we have truly come a long way in a
relatively short period.

Today, as we know, many positions of leadership
in the law, not only in Australia but elsewhere, are held by women and women are
actively using the law to advance their own rights and those of others. But, as
this report reminds us, we can and should do better. This report’s
recommendations show us the way forward – for Australia and the
world.

Let me once again congratulate UN Women for producing such a
timely and thorough report. It is a pleasure to launch a report that so
comprehensively identifies both the potential, and the current failings, of
justice systems in the fight for gender equality. It is extremely useful to have
a regular reporting mechanism that allows us to track how the universal issue of
gender is progressing around the world.

I am very proud to launch UN
Women’s Progress of the World’s Women: In Pursuit of Justice and commend this powerful report to you.

Thank you.

^[1] World Economic Forum, Global
Gender Gap Report 2010. At: http://www.weforum.org/issues/global-gender-gap (viewed 6 July
2011).

^[2] Graduate Careers
Australia, Gradsonline Survey,
(2010).

^[3] Federal Court of
Australia, List of appointment date of current judges. At www.fedcourt.gov.au/aboutct/jj_seniority.html (viewed
6 July 2011).

^[4] 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 July 2011)

^[5] Politics and
Public Administration Group – Parliamentary Library 2011, Composition
of Australian Parliaments by Party and Gender, as at 1 July 2011. At http://www.aph.gov.au/library/intguide/pol/currentwomen.pdf (viewed July 2011).

^[6] Australian
Public Service Commission 2010, Australian Public Service Statistical
Bulletin – State of the Service Series 2009-10 pp. 6. At http://www.apsc.gov.au/stateoftheservice/0910/statistics/bulletin.pdf (viewed July 2011).

^[7] 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 July 2011)

^[8] Australian
Human Rights Commission 2010, Annual Report 2009-10 <Available at: http://www.humanrights.gov.au/pdf/about/publications/annual_reports/2009_2010/AHRC2009_2010_complete.pdf>
(viewed 5 July 2011).