Book launch:

Federalism, Feminism
and Multilevel Governance and Sex Discrimination in Uncertain Times

Speech by Elizabeth Broderick

Sex Discrimination
Commissioner and Commissioner responsible for Age Discrimination

ANU College of Law, Australian National University

Wednesday 29 September 2010

I want to begin by acknowledging that we are gathered here on the traditional
lands of the Ngunnawal people and pay my respects to their elders past and
present.

It is such a pleasure to be here with you tonight to celebrate the launch of
two important books – Federalism, Feminism and Multilevel
Governance, edited by Professor Marian Sawer, Melissa Haussman and Jill
Vickers and Sex Discrimination in Uncertain Times edited by Professor
Margaret Thornton.

I want to pay particular tribute to both to Marian and Margaret. The work of
my office, and no doubt all of my predecessors, owes a great practical and
intellectual debt to both these women and to the other brilliant feminist
academics at ANU – both female and male.

Marian Sawer’s assiduous and meticulous accounts of the foundation and
development of Australia’s gender equality machinery have demonstrated how
feminist ideas can be translated into policy and practice. Her expertise has
been recognised internationally, not only by the inclusion of her work in a
number of international publications, but also through her recognition as one of
the United Nation’s international experts on national gender machinery.
Her focus on the institutional arrangements that have alternately progressed and
undermined gender equality is invaluable to everyone working in the area of
gender equality.

Margaret Thornton is similarly a scholar whose commitment and insight
contributes significantly to the women’s movement. Her work, particularly
on Australia’s discrimination framework, but also on feminist
jurisprudence, legal education and the legal profession has consistently been at
the forefront, and has been an important resource for a number of Sex
Discrimination Commissioners. In fact, I think one of the chapters in Sex
Discrimination in Uncertain Times, reveals she has been a leading feminist
legal thinker since 1978 when she was involved in the formation of the Feminist
Legal Action Group.^[1] I know the ANU
was very pleased when she joined the College of Law recently.

I was fortunate to both attend and address the conference Margaret convened
to mark the 25^th Anniversary of the Sex Discrimination Act last year
– it included a very entertaining and amusing re-enactment of the passage
of the SDA – amusing until I realised that many of the same comments made
about the Act, the disintegration of the family and the breakdown of the social
fabric of communities are just as likely to be made today!

I also want to acknowledge many of the people who were part of this
conference and who contributed papers to both these publications. As evidenced
by tonight’s crowd, many of the experts on feminism, human rights,
federalism, governance, public international law and gender equality machinery
are located right here at the ANU. These experts come from a breadth of
disciplines and consistently lead the research and thought in both policy and
legislative issues. I want to thank the University for hosting this event and
for their continued support for such an important area of academic research. I
am so delighted to learn today that the Vice-Chancellor has approved the
establishment of the ANU Gender Institute from 1 January 2011. I understand
there was unanimous support for the proposal from the College Heads and
University Executive members at the meeting. What terrific news and a
significant step forward for gender equality in this country. Congratulations
and I look forward to working with you in my role as Sex Discrimination
Commissioner to create evidence based policy that will create a more equal
Australia.

In the time I have held the position of Sex Discrimination Commissioner it
has become clear that Australia’s Federal political structure and the rise
of multilevel governance has provided women’s and gender equality
advocates with an increasing number of fora to pursue policy and legislative
action.

The same structures also pose challenges to women’s policy advocates
– as many in tonight’s audience will attest. Sustaining and
coordinating action across so many jurisdictions is resource intensive and there
are many examples where accountability for change has fallen through the cracks
or become stuck in the overlap.

Marian Sawer’s book clearly outlines both the potential opportunities
and the possible threats federalism and multilevel governance can pose for
gender equality.

Of course, one of the challenges for gender equality in Australia is the
continued need for reform of the Sex Discrimination Act. As Margaret
Thornton’s collection suggests – the individual complaint based
model of anti discrimination may not be the most effective and responsive tool.
Most of the discrimination that exists today is not overt. It is built into the
systems, cultures and institutions that exist in Australia. It is often the
result of unconscious bias – bias that relies on our inbuilt gender
schemas and develops as a shorthand way of helping us understand the world.
Providing equal opportunity is not sufficient if we are to deliver substantive
equality.

The publication of these books brings together the work of both international
and national gender equality law and policy experts. And for those of us
working outside academia, these two publications offer a valuable resource to
inform our work and an opportunity to re-examine our efforts to reform policy
and legislation to achieve gender equality.

I want to briefly share with you tonight some thoughts firstly on the
publication Federalism, Feminism and Multilevel Governance and then Sex Discrimination in Uncertain Times.

Haussman, Sawer and Vickers’ anthology offers a feminist perspective on
federalism as it has manifested in countries as wide-ranging as Australia,
Russia, Mexico, Nigeria, India, Canada, the UK and the United States. It also
addresses multilevel governance and the potential an increasing number of non
government and international decision making forums might hold for advancing
gender equality.

As an advocate for gender equality at the national level, many of the ideas
here gave me pause to stop and consider my own work and that of the people I
work with, both within and outside government.

As the authors suggest, federalism creates more sites and opportunities for
people’s participation and more points of access to
decision-makers.^[2] Federalism opens
up channels for policy change – where advocates find resistance or
hostility in one jurisdiction their proposals may be received more favourably in
another.^[3] Smaller jurisdictions may
offer the possibility of piloting or testing a particular policy or legislative
reform and thus generating support for a broader
implementation.^[4] Federal systems can
also ignite competition or collaboration between different levels of government,
which can lead to policy
innovation.^[5]

I have seen these elements of our political architecture play out even in the
short time I have been in this position. This has been particularly highlighted
in governments’ responses to the issues of violence against women and
women in leadership, which are also two of my priority areas as Sex
Discrimination Commissioner.

While the late 1990s was marked by the continuing absence of an integrated,
national response to violence against women, federalism allowed women’s
advocates to pursue progressive policy responses with State and Territory
governments instead. At the time when a National Plan of Action to
Eliminate Violence against Women was an elusive goal, State and Territory
violence against women plans or frameworks began to spread, horizontally across
Australia. In 2007, the change of government at the federal level saw the
Federal political environment shift and an integrated policy response was able
to spread vertically. Just before the most recent federal election we saw the
Australian Labor Party announce the National Plan to Reduce Violence against
Women and their Children to be implemented by the incoming government.

Government responses to the issue of women’s representation in
leadership and decision-making positions, another particular interest of mine,
have followed a similar trajectory. The past five years or so have seen almost
every single State and Territory Government set targets for women’s
representation on government appointed boards and committees and in management
positions in the public sector. The increasing success of these targets has made
the Federal Government’s reluctance to set similar targets less and less
tenable. Again, the 2010 federal election saw the Labor Party make an election
commitment to setting a target for gender equality on federal government boards
and committees.

Of course, as Sawer herself points out, the rise of multilevel governance
means decision-making is increasingly complex and diffuse and more likely to
involve non-state actors, including the corporate and private
sector.^[6] The issue of women in
leadership provides a good illustration of how women’s advocates can also
influence these non state actors to take action towards gender equality. Last
year the Australian Stock Exchange’s Governance Council announced changes
to their Principles for publicly listed companies from 1 January 2011. All
publically listed companies in Australia will be required to set
‘measurable objectives’, or gender equality targets, in their
organisation. They will need to set targets for increasing the number of women
at senior executive levels and the number of women on their boards. These
targets will be disclosed to the market in full and companies will be required
report against them annually.

And, while longstanding state and territory action was undoubtedly an
influence on the federal government, the market’s decision to regulate
itself also tipped the balance towards better government action. While I
don’t want to overstate the case, early indicators are showing a marked
increase in the number of women being appointed to decision-making and
leadership positions in publicly listed companies on the ASX. In the past 8
months there has been a four fold increase in the number of women appointed to
ASX 200 boards when compared to the whole of
2009.^[7] Let’s hope this trend
continues.

Another pertinent example of multilevel governance is of course, the
international human rights framework. Those of us engaged with international
human rights processes well know the potential of the additional policy making
and arbitration structures this framework establishes. In August this year I
attended Australia’s appearance in front of the Committee monitoring
implementation of the Convention on the Elimination of All forms of
Discrimination against Women (CEDAW). While the Australian Government will make
its own decision about how to implement the CEDAW Committee’s Concluding
Observations, the reports provided by the Australian Government, the Australian
Human Rights Commission and women’s non government organisations meant
this appearance was perhaps the most comprehensive, national review of
Australia’s gender policy and legislation.

Of course, as the contributors to the collection illustrate –
federalism and multilevel governance also provides an array of challenges and
pitfalls for achieving gender equality. As another of the editors, Jill Vickers,
suggests, jurisdictional overlap and the lack of clarity in relation to the
federal division of powers may be used to avoid political obligation and policy
responsibility.^[8] While I’ve
just used the example of violence against women as a policy area that has
benefited from the channels created by federalism – one might just as
easily argue that this was necessitated by the lack of clarity regarding federal
obligations in this area.

Similarly, while the plethora of decision and policy making arena does create
a multiplicity of access points for advocates – many of us have seen the
challenges this can pose for an advocacy sector which is chronically under
resourced. While I think we have seen a renewed interest in gender related
policy at the federal level in recent years (I’ve counted nine national reviews and inquires which have significant implications for gender
equality since December 2008), I know that participation in these reviews has
been taxing for many experts and organisations. As one of the Canadian
contributions notes, policy advocates must have the resources and flexibility to
take advantage of the opportunities which present
themselves.^[9] Here in Australia,
without adequate resourcing, women’s policy advocates will struggle to
monitor the implementation of all these national reviews. I know we share that
concern.

Finally, in regards to multilevel governance, it is also necessary to
acknowledge the limits of the international human rights framework and
contributors to both volumes have noted the challenges with the implementation
and lack of enforcement mechanisms inherent in this system.

One of the nine national reviews I just referred to was the Senate Inquiry
into the effectiveness of the Sex Discrimination Act at the end of 2008 –
which brings me to Sex Discrimination in Uncertain Times. As we continue
to work towards the reforms set out in the Committee’s report and the
prospect of consolidated, federal antidiscrimination legislation, Margaret
Thornton’s collection is a timely publication indeed.

Now, as I mentioned earlier – I did have the opportunity to address the
conference from which this collection arises – so I won’t repeat
myself. However, I will say that Thornton’s premise – that the
individual complaints based model of anti discrimination laws is showing stress
– was also a key observation of the Commission’s submission to the
Inquiry.

As Beth Gaze observes in her contribution to the book – the foundations
of gender inequality lie in the gender schemas which so fundamentally structure
our society and it is difficult to see how individual legal remedies can affect
these gender schemas.^[10]

As I said when I spoke last year, it is also the case that policy and
legislative frameworks have commonly focussed on gender inequality as individual incidents of discrimination, each separate from the other. But
in doing so, we have failed to recognise the cumulative impact of each of
these individual events.^[11]

The Commission has made a number of recommendations to improve the
Act’s ability to progress substantive equality – we recommended:

• inserting a positive duty to take reasonable steps to eliminate
  discrimination and promote gender equality

• a general prohibition against discrimination and sexual harassment in all
  areas of public life.

• amending the SDA to include a broad formal inquiry function for the
  Commission in relation to the elimination of discrimination and the promotion of
  gender equality in Australia and inserting a function for the Sex Discrimination
  Commissioner to commence self-initiated investigations for alleged breaches of
  the SDA, without requiring an individual complaint.

I also suggested
that Commissioner be required to undertake periodic, independent monitoring of
gender equality indicators and benchmarks and report to the Australian
Parliament.^[12]

I am hopeful that these suggestions, many of which were supported by other
submissions and included in the Committee’s recommendations will be
properly considered through the upcoming process of consolidating our
antidiscrimination legislation. It’s possible that this process could also
go someway to stemming what Thornton describes as an ‘ever contracting
space within public discourse to accommodate critiques of
discrimination.’^[13]

In her chapter of Marian Sawer’s book, Gwen Gray cites the work of
another Australian feminist political scientist, Louise Chappell, who reminds us
that, ‘particular institutions are neither good nor bad and that similar
political architecture in different countries does not necessarily produce the
same opportunity
structures.’^[14] Indeed I
think it is just as true to say that the same political structures in the same
country will not always guarantee the same outcome – here in Australia,
while our political architecture has been, for the most part, very stable,
outcomes for gender equality have varied over time.

In closing then I would like to say that both these important books exhort us
to remain vigilant to the positioning and power of anti discrimination
legislation and the national gender machinery and state and territory
counterparts.

I’m not sure how many of you were watching Julia Gillard’s
announcement of her cabinet earlier this month. If you were, like me, you would
have experienced a tense couple of hours where it appeared our first female
Prime Minister had made the decision to abolish the position of Minister for the
Status of Women. Fortunately this discomfort was short lived and I, like I am
sure many others of you, warmly welcomed the appointment of Kate Ellis to the
role.

But for me, those tense few hours were a sharp reminder of the crucial
importance of institutional arrangements.

It is imperative that we develop and maintain strong and supportive
relationships between all arms of the national gender machinery – and by
that I don’t mean only the identified women’s offices in the federal
and state and territory jurisdictions. If we are to take advantage of our
federal structure and meet its challenges, we must work as statutory
institutions, academics, non government organisations, business, unions and
active and engaged supporters in the broader community to develop new ways of
advocacy and activism that are nimble, collaborative and responsive.

Tonight’s event demonstrates we are well on our way.

Thank you again Marian and Margaret for your commitment and leadership. Thank
you for the opportunity to join in your celebrations tonight and congratulations
again on the publication of two such valuable books. I look forward to working
with you and the ANU Gender Institute to create a fairer more equal
Australia.

^[1] A Genovese, ‘A Radical
Prequel: Historicising the Concept of Gendered Law in Australia,’ in M
Thornton (ed) Sex Discrimination in Uncertain Times (2010), p
63.

^[2] M Sawer and J Vickers,
‘Introduction: Political Architecture and its Gender Impact,’ in M
Haussman, M Sawer and J Vickers (Eds), Federalism, Feminism, and Multilevel
Governance (2010), p
5

^[3] M Sawer and J Vickers, above,
p 11

^[4] M Sawer and J Vickers,
above, p 7

^[5] M Sawer and J
Vickers, above, p 5

^[6] M Sawer and
J Vickers, above, p 8

^[7] Australian Institute of Company Directors, Gender diversity on boards –
statistics, www.companydirectors.com.au/About+Directorship/Board+role/Board+Diversity/Gender+diversity+on+boards+%E2%80%93+statistics.htm?LM (viewed 24 September 2010)

^[8] J
Vickers, cited in Gray, G, “Federalism, Feminism and Multilevel
Governance: the Elusive search for Theory?” in M Haussman, M Sawer and J
Vickers (Eds) Federalism, Feminism and Multilevel Governance (2010), p
25

^[9] R Mahon and C Collier,
‘Navigating the Shoals of Canadian Federalism: Childcare Advocacy,’
in M Haussman, M Sawer and J Vickers (Eds) Federalism, Feminism and
Multilevel Governance (2010), p
65

^[10] B Gaze, ‘The Sex
Discrimination Act at 25: Reflections, on the Past, Present and
Future,’ in M Thornton (Ed), Sex Discrimination in Uncertain Times (2010), p 125

^[11] E
Broderick, Lifelines: Sex Discrimination over the lifecycle, (Speech
delivered at ANU College of Law Sex Discrimination Act Silver Anniversary
Conference, National Museum of Australia

Canberra, Friday 2 October 2009). At www.humanrights.gov.au/about/media/speeches/sex_discrim/2009/20091002_lifelines.html (viewed 24 September
2010)



^[12] See Australian
Human Rights Commission (Human Rights and Equal Opportunity Commission), Submission to the Senate Legal and Constitutional Affairs Committee Inquiry
into the effectiveness of the Commonwealth Sex Discrimination Act
1984, 1 September 2008. At www.humanrights.gov.au/legal/submissions/2008/20080901_gender_equality.html (viewed 24 September 2010)

^[13] M
Thorton, “Preface,” in M Thornton (Ed) Sex Discrimination in
Uncertain Times (2010), p
xvii

^[14] L Chappell, cited in G
Gray, ‘Federalism, Feminism and Multilevel Governance: the Elusive search
for Theory?’ in Haussman, Sawer and Vickers (Eds) Federalism, Feminism
and Multilevel Governance (2010), p 27