AALA Harmony Day and IWD

Emeritus Professor Rosalind Croucher AM FAAL

Acknowledgements

[Thank you to Clayton Utz and to Dora Cheung, AALA]

Let me begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation and pay my respect to Elders, past, present and emerging.

I was invited to this event to celebrate Harmony Day, and also to connect the recent celebration of International Women’s Day last Friday, 8 March.

Given our proximity to Bennelong Point and Barangaroo, I want to acknowledge her – Barangaroo – especially as we are celebrating International Women’s Day. Barangaroo was the second wife of Bennelong, and acted as an intermediary between the Aboriginal people and the early British colonists in New South Wales. She was a member of the Cammeraygal clan of the Eora Nation from across the harbour. Although not her traditional land, Barangaroo is named in her honour. 

(Perhaps Anna Funder should write about Barangaroo, like she did of Mrs Orwell in Wifedom)

My story is one of British immigration. My father came here as a small boy in the 1920s with this parents from Merseyside, England, voluntarily. My mother’s came at least two generations before from England and Ireland. My husband’s family on both sides came involuntarily – something that people now readily acknowledge. 

We each have our own story of immigration.

The theme for 2024 IWD is ‘Count her in: invest in women. Accelerate progress.’^[1]

I will use this theme and link it to investing in Asian Australians, and particularly to acknowledge women among this group.

Both IDERD and IWD were born out of protest

International Women’s Day was born out of protest driven by the women’s labour rights and suffrage movements of the first decades of the 20th century. In 1911, the first International Women’s Day was celebrated.^[2] In Australia, the first IWD commemoration was held in March 1928 in the Domain in Sydney. Organised by the socialist Militant Women’s Movement, the women who attended called for equal pay for equal work, 8 hour days and welfare for the unemployed. It was a movement about forging women’s equality. 

The International Day for the Elimination of Racial Discrimination was also born out of protest. 

On this day in 1960, in the South African township of Sharpeville, some 5,000 people had gathered to protest against new laws introduced by the apartheid government. The ‘pass laws’, as they were known, required all black men and women to carry personal identification papers: anyone found without a ‘reference book’ was to be arrested and detained for up to 30 days.

What began as a peaceful protest outside the Sharpeville police station ended in bloodshed. Up to 300 police officers – in armoured vehicles – opened fire into the protesting crowd. Sixty-nine people were killed, with more than 100 injured.

In 1979, 19 years after Sharpeville, the United Nations (UN) General Assembly resolved that a week of solidarity with peoples struggling against racism and racial discrimination, beginning on 21 March and coined IDERD, would be held annually.

Creation of ‘Harmony Day’ in Australia 

From 1999, Australia rebranded IDERD as ‘Harmony Day’. This was deliberate. To shift to a day for celebration that Australian society was fundamentally harmonious and that this harmony should be a cause for celebration.

But with this framing, the systemic racial discrimination experienced by so many for so long in Australia was effectively masked and has contributed significantly to the denial of racism that continues to characterise Australia today. 

On 26 February Ming Long AM, delivered the Wang Gungwu lecture in Canberra, which celebrates the achievements of Chinese Australians. Ming said that Australia was the only country in the world to call IDERD ‘Harmony Day’. She referred to research into racism at work undertaken by the Diversity Council of Australia (DCA) in 2022, on how we use language like ‘CALD’, ‘multicultural’, but never ‘race’. This, Ming said, was a symptom of the lack of racial literacy in Australia. 

We avoid ‘race’. It’s complex. We dodge talking about it – to protect ourselves against allegations of racism. We are weaponised into silence.

Ming said how, at the DCA, they have opted to use ‘culturally and racially marginalised’ (CARM) to recognise that racism is a social process where some groups come to be regarded as different, outside the norm and/or inferior due to their race, ethnicity or religion. And based on those perceptions, they receive unequal treatment. They are racially marginalised. Racialisation creates a society in which some groups are privileged while others are racially marginalised. Ming spoke of these as ‘uncomfortable truths’.

‘Harmony Week’ is an example of the way language can be used to reframe antiracism. The language of harmony can operate to reinforce inequality and maintain the status quo. 

IWD theme of investing in women

Working the IWD theme into the idea of IDERD, we would look to promoting – investing – in women of Asian backgrounds in the workforce. This is also a focus on being anti-racist, or anti-discriminatory, and striving for equality as a measure of outcome, not just ‘opportunity’.

There is both a racial element and a gendered element to consider.

While the 2021Census identified that 17.4% of the population identified as having Asian ancestry, the Commission’s Leading for Change report of 2018^[3] – one of Tim Soutphommasane’s final contributions, and referred to by AALA – estimated that of those who occupy the most senior posts in Australia only 4.7% have a non- European background and 0.4% have an Indigenous background.

Flipping this statistic around, about 95% of senior leaders in Australia have an Anglo-Celtic or European background (based on names). Although those who have non-European and Indigenous backgrounds make up an estimated 24% of the Australian population, such backgrounds account for only 5% of senior leaders.

The leadership figures for lawyers of Asian descent is even lower than the general leadership percentage. Chin Tan noted that only 3.1% of partners in law firms are Asian Australian. Only 1.6% of barristers are Asian Australian and only 0.8% of the judiciary are of Asian descent. 

As Chin observed,

This is a gross under-representation of Asian Australians in the law and justice system.  And the impact of such under representation cannot be downplayed. Research shows that under representation impacts not only on the individual, but in areas such justice, it also has a community and systemic impact.

He reminded us that we can’t be what we can’t see.  

Chin gave a wonderful example of the individual impact that role models can have – following the release of the Hunger Games films and the Pixar film Brave, the involvement of women in the sport of archery increased by 105% and youth membership increased over 200% in a two-year period.^[4] I will add to this the increased interest in women’s soccer that the Matildas have generated, and the inspiration of the women of diverse backgrounds so evident in the team. Sam Kerr’s father was both in Kolkata to Anglo-Indian parents who migrated to Western Australia in the 1960s. An ABC online article said that ‘Beyond Kerr, soccer fanatics from diverse backgrounds have found inspiration in Matildas players including Mary Fowler, whose mother was born in Papua New Guinea, and Indigenous players like Anaiwan woman Kyah Simon and Noongar goalkeeper Lydia Williams.’^[5]

As Chin said, when we see people that we identify with achieving goals – literally in the case of the Matildas – or participating in some area of public life, we are more easily inspired and we can more easily see ourselves achieving the same goals.

‘Seeing’ is one thing, barriers to getting there is another.

The ’bamboo ceiling’ was identified in law firms in a study in 2019, as described by Michael Pelly in article in the Australian Financial Review.^[6] The poll of approximately 5,000 staff in 8 law firms found 25% of law graduates and 20% of non-partner lawyers have an Asian background, but only 8% of the partnership was Asian. The results also revealed that those with an Asian background had more chance of occupying a senior position if there were in a support role. Almost 175 of those working in business services were Asian, but only 9.8% were managers. 

This study was undertaken in response to the Commission’s Leding for Change report. The Commission and the AALA helped to design the survey.  

In her Wang Gungwu lecture, Ming Long provided the example of barriers to promotion in the Australian Public Service. She cited the 2023 Crawford School of Public Policy study focused on promotional prospects of demographic groups in Australian public service. Even Asian people who had lived in Australia since early childhood, with great English, were not getting promoted. Staff from ESBs were 70% more likely to be promoted to executive level roles. 

The study of 20 years of workforce data showed public servants from NESB faced lower promotion prospects throughout their careers irrespective of when they migrated to Australia, even if they were born in Australia or arrived before kindergarten.^[7]

The results for women were strong and there was no evidence of a glass ceiling. However, the racial factors were stark. Even though Australia has not had a White Australia policy for 75 years. 

The public service as a whole reflects the diversity of Australia with around 20% from NESBs, but despite this, about 96% of promotions to executive levels have been awarded to staff of Anglo, Celtic or European names and the least promoted are those with an Asian heritage.

Robert Breunig, the lead author and head of ANU’s Tax and Transfer Policy Institute observed to the Australian Financial Review that ‘These two results suggest that there is some “Asian penalty” that is not related to language or cultural assimilation’.^[8].

What about our courts?

‘Diversity’ discussions and analysis in judicial appointments has had a strong focus on women. I had the privilege of contributing a chapter on women for the upcoming publication to mark the bicentenary of the Supreme Court of NSW. In this I noted that diversity on the Bench is of course not confined to gender diversity. 

Diversity is not just about women. With the door now open and the presence of women judges of the Supreme Court clearly part of the established institutional fabric of the Court, the conversation about diversity can continue across a wider range — and, as Bathurst CJ remarked, ‘there will be many more pioneers in our legal profession’.^[9]

The changing composition of the NSW Supreme Court over the years has reflected diversity in various aspects, including religion – I note here the many Opening of Law Term service reflecting this – cultural and racial background, and readiness to appoint solicitors and academics to the Bench. The inclusion of women as judicial officers, which has been an important focus of the current and previous Chief Justice, is part of a wider discussion – involving matters such as the contested topic of defining ‘merit’ in selection, and the advantages of, and pathways to, a diverse judiciary.

A bench that comprises judicial officers of different backgrounds (and genders) fosters public confidence in the work of the courts, and it touches upon judicial impartiality.^[10] You can’t be what you can’t see.

In September 2020 the ALRC was asked to inquire into federal laws relating to judicial impartiality and bias. One of the key recommendations in its final report, released in August 2022, was that the Attorney-General should collect, and report annually on, statistics regarding the diversity of the federal judiciary’ (Rec 8).^[11] 

The AALA provided a submission to the ALRC inquiry, drawing attention to the DCA’s Counting Culture Guidelines as a relevant framework.

In response, the Australian Institute of Judicial Administration commissioned the study, completed in August 2023, Judicial Diversity in Australia: A Roadmap for Data Collection, by Brian Opeskin and Sharyn Roach Anleu.^[12]

The AIJA commenced tracking gender data from 2000, with Judicial Gender Statistics. One motivation was that the focus on gender was too narrow, ‘given the range of characteristics that are important to the notion of a diverse judiciary’.^[13]

Two concerns underpinned the AIJA study: concept of gender (as binary) and the scope of diversity. The recommendations included:

6.2 Statistics regarding the race or ethnicity of the judiciary should be regularly recorded and reported. Judicial officers should have the opportunity to self-identify their race or ethnicity. To enable useful comparison with the broader population, judicial officers should be asked the standard ABS ancestry question in terms similar to the population census.

Why is judicial diversity important?

• maintenance of public confidence in the judicial system
• importance for legitimacy
• advantages of different perspectives, experiences and approaches to judicial decision-making
• a symbolic statement.^[14]

The study noted that race and ethnicity are complex concepts that relate to cultural, linguistic, religious, and biological factors. The Australian census does not include questions about race or ethnicity, asking instead about ancestry. The recommendation builds on this. 

There is more that can be done. The AALA submission provides an excellent list.

• the legal profession and relevant professional associations and workplaces adopting programs and initiatives to support the equitable briefing of culturally diverse barristers
• recruitment and employment of culturally diverse law graduates and lawyers
• mentoring and career progression of culturally diverse law graduates and lawyers 
• early identification of talent and mentors and supported through the ranks of the legal profession.

Chin added:

• Asian Australian lawyers actively stepping up as role models and leaders.
• programs like the AALA Mentoring Program Committee receiving active commitment from law firm partners to act as mentors.

Conclusion

I acknowledge that I am a woman of clearly British heritage and this means that I am privileged. I have sought to use that position in mentoring fabulous women – like Lee-May Saw, an outstanding President of Women Lawyers’ Association of NSW, and Holly Lam who succeed her.

I benefited from the advocacy of the generation of second wave feminists before me that led to the disappearance of the glass ceiling by the time the study of 2023. This was one of the previous stories of increasing ‘diversity’. When I was at Law School in the 1970s, 20% of my class were women. The glass ceiling was still one of industrial level shatter-proof proportions. I am delighted that, 50 years later, the APS stats tell a different story. As to systemic racism, that is another matter. I recall only one Asian Australian student in my class. Engraved into my memory is the casual racist remark that was made by my constitutional law professor. I will not repeat it. But it has stayed with me. 

That is what we have to fight. To be anti-racist. 

IDERD and IWD give us the opportunity to celebrate success, acknowledge ongoing challenges, and express determination to continue towards equality, and to do so in solidarity and together, which is what a gathering like this is.

Endnotes

[1] Barbara LeSavoy and Jordan Garrett, ‘The Capitalist Hijacking of International Women's Day: Russian and American Considerations’ (2013) 14(3) Journal of International Women's Studies, 244-258. Available at: http://vc.bridgew.edu/jiws/vol14/iss3/17.

[2] https://unwomen.org.au/get-involved/international-womens-day/.

[3] https://humanrights.gov.au/sites/default/files/document/publication/
Leading%20for%20Change_Blueprint2018_FINAL_Web.pdf. 

[4] Geena Davis Institute on Gender in Media, Hitting the Bullseye: Reel Girl Archers Inspire Real Girl Archers, 2015 https://seejane.org/wp-content/uploads/hitting-the-bullseye-reel-girl-archers-inspire-real-girl-archers-full.pdf.

[5] https://www.abc.net.au/news/2023-08-15/matildas-world-cup-sam-kerr-mary-fowler-inspire-diverse-fans/102713288. 

[6] Reported in Michael Pelly, ‘Asian layers hit “bamboo ceiling”’, 26 April 2019: https://www.afr.com/work-and-careers/workplace/asian-lawyers-hit-bamboo-ceiling-20190425-p51h8w.

[7] https://www.afr.com/politics/federal/federal-public-service-has-an-asian-penalty-problem-20231025-p5eey1. 

[8] https://www.afr.com/politics/federal/federal-public-service-has-an-asian-penalty-problem-20231025-p5eey1.

[9] T F Bathurst, ‘“A tough nut to crack”: the history of the legal profession in New South Wales’, Francis Forbes Society, 19 September 2019 at [66].

[10] See generally Without fear or favour: judicial impartiality and the law on bias, ALRC Report 138, December 2021.

[11] https://www.alrc.gov.au/wp-content/uploads/2022/08/ALRC-Judicial-Impartiality-138-Final-Report.pdf. 

[12] https://aija.org.au/wp-content/uploads/2023/09/AIJA_Judicial-Diversity-Report.pdf. 

[13] Ibid, 8.

[14] Ibid, 11–12.