‘Women as Agents of Change’: Balancing the scales

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

Commonwealth Law Ministers’ Meeting, NSW Government House, Sydney

Wednesday, 13 July 2011

Acknowledgment

I would like to begin by also 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. In particular, I would like to acknowledge the
inspirational work of so many Aboriginal and Torres Strait Islander women who
have been agents of change, be they barristers, lawyers, judges, litigants or
community advocates.

Introduction and Recognition of Commonwealth Initiatives

I also thank the Commonwealth Law Ministers Forum for the opportunity to
address this distinguished gathering – particularly on a topic so close to
my heart.

The adoption of ‘Women as Agents of Change’ as the 2011
Commonwealth Day Theme is timely in a year which marks the 100^th anniversary of International Women’s Day and which comes, as it does, at
more or less the mid-point of the Commonwealth Plan of Action for Gender
Equality 2005-2015 (the Plan of Action). Gender equality is a core Commonwealth
value.^[1] The Plan of Action
recognises gender equality not only as a goal in its own right but also as a key
factor in enhancing development, democracy and peace.

Within the Commonwealth our achievements in the area of gender equality have,
unfortunately, not lived up to our ambition. We have not in this area yet
balanced the scales of justice. I hope that you will excuse my noting that only
9 of the 47 registrants for this forum are women and, as I am informed,
throughout the Commonwealth there are only 2 female Attorneys-General. In my
own area, of the 40 National Human Rights Institutions in Commonwealth
countries, only 15 are headed by women.

Looking more widely, in 1997 the Commonwealth Heads of Government endorsed a
target of no less than 30% of women in decision-making in the political, public
and private sectors by 2005. When that year came, progress had been made but
only Mozambique, New Zealand and South Africa had consistently attained the 30%
target of women’s representation in Parliament. Here in Australia we did
not achieve 30% representation of women in our national Parliament until earlier
this month. The target of 30% has been even less attainable in our public and
private sectors. Certainly in Australia only 29% of Federal judges are women and
only 25% of Federal Departmental Secretaries are women. In the private sector,
the most recent statistics show that in our top 200 companies women chair only
2.5% of boards and hold 12.5% of board
directorships^[2] and in those 200
companies women hold only 3% of CEO positions and 8% of Executive Management
positions.^[3]

Looking specifically at the law, women constitute at least 65% of law
graduates but only 19% of Australian barristers and 6% of senior counsel are
women. And while women make up 46% of our solicitors, the highest percentage of
female equity partnerships in a major law firms today is only 22.3%.

It seems plain that our aspiration to balance the scales that measure gender
equality is not enough. I therefore applaud the adoption of a Commonwealth Day
theme that recognises the many positive implications of increasing gender
equality – and particularly acknowledges the special roles that women can
play as agents of change for the betterment of entire communities. In
recognition of the specialist nature of this forum, I will concentrate on the
role of women as agents of change in the law. And having regard to my own
experience, I hope you will forgive me if I concentrate on the Australian
context.

This audience needs no reminding that there was a time when women possessed
little agency within the law; nor that many women across the Commonwealth are
still denied agency, including in Australia and other developed and developing
countries of the Commonwealth. But is nonetheless important not to lose sight
of what has been achieved in a relatively short period of time.

The Executive Director of UN Women, Michelle Bachelet, noted in the foreword
to that new agency’s recently released report Progress of the
World’s Women: in Pursuit of Justice that she had witnessed a
transformation of women’s legal rights in just one generation. I have
observed a similar transformation in Australia and for this reason I remain
optimistic that even more significant change 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 South Australia, 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 note, incidentally, that in this state of NSW, the largest
State of Australia, women did not become entitled to practice law until
1918.^[4] I remember that my entry
into legal practice was early enough in the history of women in the profession
for me to have benefited from the personal support of Australia’s first
female superior court judge, Justice Roma Mitchell of the Supreme Court of South
Australia. I remind myself, when despondent about the pace of change, 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.

As a former judge and now as President of the Australian Human Rights
Commission, I have had the privilege of being able to observe the nature and
benefits of the changes which women have instigated and realised within
Australia’s legal system and institutions.

We see them first in our statute law. Largely due to the advocacy and
leadership of Australian women, we have had a national Sex Discrimination Act in
this country since 1984. It has had a significant impact not only as an
important symbolic statement, which I believe has helped shift attitudes, but
also as means of legal redress. In 2009-2010, 21% of all complaints received by
the Australian Human Rights Commission and 88% of complaints received in
relation to employment were lodged under the Sex Discrimination Act. Individual
women lodged 50% of all complaints lodged with the Commission and 79% of the
complaints under the Sex Discrimination Act. This country’s strong labour
laws, which also provide avenues to protect women in employment, similarly owe a
lot to the advocacy of women. These laws seek to guarantee equality in the
workplace for men and women, including equal pay, and there is presently a claim
being made under these laws for an equal remuneration order for the
female-dominated social and community services industry.

Nonetheless, women as litigants continue to face many barriers in accessing
justice; these include their lack of knowledge of their rights, their reduced
economic capacity, and their dependence on male relatives for resources, not to
mention the stigma that can attach to women if they seek or threaten legal
recourse.^[5] Nonetheless, women are
taking crucial steps towards changing their own lives and the lives of others by
initiating or supporting important strategic litigation. The UN Women report to
which I earlier referred profiles some of this litigation worldwide. It
includes litigation to hold governments to account for failing to ensure that
domestic violence laws are properly implemented; litigation to strike down
citizenship laws that discriminate against women and their children; and
litigation to enforce the right of all to a workplace that is safe and free from
sexual harassment. In Australia strategic litigation in support of
women’s rights has included claims for protection against discrimination
in the workplace, including sexual harassment, pregnancy discrimination and
discriminatory hiring practices; and claims that domestic violence ignored by
the authorities in the country of origin can constitute the basis of a claim for
asylum.^[6]

Women lawyers are also proving to be agents of change by working to advance
social justice: one need only observe the disproportionate numbers of female
lawyers who work in community and specialist legal centres and in human rights
organisations.

In thinking of how the scales of justice are balanced on gender equality, we
should not overlook that access to justice means much more than access to the
courts. Access to justice also involves the capacity to institute, and to obtain
just and fair outcomes from litigation. For many women, the laws that appear in
the statute books do not always translate into equality and justice and it is
for this reason that women as agents of change continue to play a pivotal role
both within the legal system – as judges and lawyers – and external
to the legal system as politicians, litigants and community advocates.

Experience has shown that all-male legislatures have not been particularly
attentive to the needs and legitimate demands of women. Similarly all-male
judiciaries were slow to understand the circumstances and aspirations of women.
For women to obtain just and fair outcomes from litigation it is necessary that
they have a judiciary that understands them. As the former Madam Justice Claire
L’Heureux-Dube of Canada rightly observed: ‘...in making a
difference, judges cannot only be concerned about women’s reality (I
might have said ‘realities’), but also about the varying and
diverse experiences of children, men, people with disabilities, people of
colour, people who are poor...and all other types of human experiences which may
form the background against which law is
applied.’^[7]

It is, I think, commonly accepted in judicial circles that when women join
courts, the language in which women and women’s issues are discussed
around the court becomes more sympathetic. The language in which judgments are
written changes – and not just in the judgments written by women judges.
In judges’ common rooms feminist issues become topics of respectful
discussion. Women judges can be powerful agents of change for justice and
equality – and not just by determining cases that come before them.

It is equally important that we have women as leaders and decision-makers in
all sectors of society.

As I observed in opening, we have not found it easy to achieve a significant
increase in the numbers of women in leadership positions and that we remain far
from our 30% target. What stands in our way? I would like to suggest that in
large measure it is how we envisage work at a senior level and, perhaps more
importantly, how within relationships we share domestic responsibilities. Until
we can achieve a critical mass of women on the path towards senior appointments
we will not be able to appoint women at the top in the numbers to which we
aspire.

I am confident that it is not a coincidence that many of the first women
appointed to senior positions in this country were single or did not have
children. There were, of course, some notable exceptions, but it is not easy to
balance the demands of a busy job and significant family responsibilities. In
fact, the anecdotal evidence I hear is that many young lawyers are seeking out
opportunities to work with law firms and partners who enable them to achieve
that professional and personal balance, frequently resulting in more productive
and healthier workforces.

It seems to me to be wrong in principle that the most senior positions in
organisations should nearly always be the most demanding in time and energy.
Surely in most cases (I accept probably not all) what one really wants in a
senior leader is a person with commitment, ideas and vision; someone who can
inspire others to make that vision a reality. This ought not necessarily demand
excessively long hours in the office. In our profession we expect those
appointed to senior office to have a high level of skill and experience but I
see no reason to think that these can only be achieved at the expense of fair
work/life balance.

I am persuaded that until we have greater equality between men and women in
the home we will not see it in the workplace. I was therefore delighted to
learn from the UN Women report that I earlier mentioned, that after Sweden
(which I observe has a high percentage of women in its
Parliament^[8]) 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%.^[9] Australia, like many other
countries, can do better supporting parents with children - but it is pleasing
to see that the Australian Government has committed to expanding our still
relatively new paid parental leave scheme by providing from 2013 two
weeks’ paid paternity leave pay for eligible working fathers and partners.
But we need a change in cultural as well as economic norms to ensure that men
and women equally feel free to assume caring responsibilities. Gender equality
is something that will only be achieved by men and women working together.

In closing, I want to return to the point I made in my opening remarks that
merely aspiring for gender equality is not enough. In this regard, the role of
national human rights institutions as agents of change has proved significant.
Again, looking at the Australian experience, our Sex Discrimination
Commissioner, a member of the Australian Human Rights Commission, has been a
powerful role-model and advocate for gender equality. The Commission itself has
intervened in landmark litigation that has advanced the recognition of
women’s employment and reproductive rights and freedom from
discrimination. NHRIs nearly everywhere offer women a forum for resolving
complaints in a non-adversarial jurisdiction and advocate for the elimination of
discriminatory practices. These institutions, to the extent that their resources
allow, play a pivotal role in giving visibility to gender inequality and its
manifestations and in shaping policy and law reform responses to improve
women’s lives. May I urge you all to support your NHRI?

Let me close by observing that human rights, including economic and social
rights, are everybody’s rights. We should all, men and women, seek to be
agents of change to ensure that the rights of all in our respective
countries and communities, are respected. But women play a special role as
agents of change: as Mrs Sonia Gandhi recently commented, “[women] through
their own initiative, their energy and enterprise, through individual and
collective action, have transformed not only their own situations but the
broader social context
itself.”^[10]

I too wish to acknowledge the great contributions that women throughout the
Commonwealth make towards ensuring that the benefits of development, democracy
and peace are enjoyed by all.

^[1] Commonwealth Heads of
Government Harare Commonwealth Declaration, issued by Heads of Government
in Harare, Zimbabwe on 20 October 1991. At http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=34457 (viewed 12 July 2011).

^[2] Australian Institute of Company
Directors 2011, Statistics – Appointment to ASX 200 Boards. At http://www.companydirectors.com.au/Director-Resource-Centre/Governance-and-Director-Issues/Board-Diversity/Statistics (viewed 12 July 2011).

^[3] 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 12 July 2011).

^[4] Women’s Legal Status
Act 1918 (NSW).

^[5] UN Women 2011-2012 Progress
of the World’s Women: In Pursuit of Justice (2011), p 52-55. At http://progress.unwomen.org/ (viewed 13
July 2011) (‘UN Women Report’).

^[6] UN Women Report, p 16-21.

^[7] Madam Justice Claire
L’Heureux-Dubé ‘Making a Difference: The Pursuit of a
Compassionate Justice’ University of British Colombia Law Review 31(1), p 8.

^[8] 45% in 2010. See UN Women
Report, p 123.

^[9] UN Women Report, p 38.

^[10] S Gandhi, ‘Women as
Agents of Change’ (speech delivered at the 14th Commonwealth Lecture in
London) 17 March 2011. At http://www.womenasagentsofchange.org/news-story/sonia-gandhi-delivers-the-2011-commonwealth-lecture/ (viewed 12 July 2011).