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Advancing women’s rights and gender equality

Discrimination Sex Discrimination

Advancing women’s rights and gender
equality

Speech by Elizabeth Broderick

Sex Discrimination Commissioner and Commissioner
responsible for Age Discrimination

Australian Human Rights Commission

Human Rights Law Resource Centre

27 July 2009


I want to begin by acknowledging that we are gathered here today on the
traditional land of the Wurundjeri People of the Kulin Nation and pay my
respects to their elders.

What an honour it is to be invited to speak here today, alongside Justice
Yvonne Mokgoro of the Constitutional Court of South Africa. We had the pleasure
of meeting in Sydney last week and comparing the experiences of women in our
respective countries. I was inspired by the passion, commitment and energy that
Yvonne has in taking the excellent work of her court to the world.

I have been watching with awe the developments in the South African
Constitutional Court. The human rights and equality jurisprudence which has
emanated from that court is both a cause for envy and a cause for optimism. I am
optimistic that, with time, Australia will ‘catch up’ by affording
similar equality guarantees to its citizens. Australia will draw upon the many
lessons to be learnt from other jurisdictions like South Africa, Canada and the
UK. Indeed this process has already begun.

Today, I would like to talk a little about our progress towards gender
equality in Australia and the reforms slated for the federal Sex
Discrimination Act
1984 (SDA). I will make some observations on how
the Australian Government’s Human Rights Consultation might deliver for
women and then trace the path which Canada and EU countries have taken from a
position not unlike ours today towards enhanced protection for women’s
rights and gender equality.

In doing this, I hope to address and respond to what some feminist scholars
have called the ‘false promise of human
rights’.[1] By this, I am
referring to the scepticism of some women and feminist theorists toward human
rights principles. For some women, rights may further entrench gender-based
disadvantage because they are often seen as ‘universal and abstract norms
which are made in man’s image and which reflect his particular
concerns’.[2]

For example, while we have no hesitation identifying things like the public
execution of men in Iran as a human rights abuse, the response is more equivocal
when it comes to a woman being abused by her husband in Toorak. Human rights
have more often been used to protect men in the public sphere, rather than women
in the private sphere and the private sphere is often where women are
demonstrably most at risk.

That being said, there are also clear examples of women successfully using
human rights frameworks to achieve positive outcomes for women, such as advocacy
for anti-discrimination and equal opportunity laws, anti-trafficking laws or
laws banning forced marriages.

Human rights are ‘tools of liberation’ which women ‘cannot
not want’[3] and ‘cannot
not use’. Though they may have been ‘made in man’s
image’, I believe that these tools are malleable.

Women must continue to use and shape human rights to ensure their access to
safety, security and participation.

The Listening Tour Findings

When I first started in the role of Sex Discrimination Commissioner over 18
months ago, I decided to tour the country to see where we were at with gender
equality. And I heard loud and clear that progress towards a fairer and more
equal Australia had stalled. Whilst it is now hard to find examples of overt
discrimination against women in Australian laws and policies, we must face the
fact that formal equality has not delivered. It has not delivered true equality for many women in their daily lives. Indeed, in some respects, life is
harder.

More recently, there have been a number of bright spots including the
Government’s commitment to introduce paid parental leave but:

  • Women in full-time work earn only 84 cents in the male dollar, and 66 cents
    if you count part time and casual work.

  • Women continue to take on the majority of unpaid work caring for others,
    managing the household and volunteering in the community.

  • Women are more likely to be working under minimum employment conditions and
    be engaged in low paid, casual and part time work. They are more likely than men
    to work below their skill level in order to achieve some sort of flexibility to
    care for their loved ones.

  • Nearly 1 in 5 Australian women have experienced sexual violence since the
    age of 15[23] and almost 90% of the victims of domestic violence are female.[24] The
    figures are even worse for women with disabilities and Indigenous women.

  • And in the public sphere, let’s be honest, men continue to lead all our major institutions: politics, the judiciary, academia, business,
    the professions, unions, sporting organisations, churches and so on.

I concluded that amongst other things, our national gender equality
law – the SDA – needed a serious overhaul. The legislation is coming
up to being 25 years old, with many provisions now outdated, having been
developed through political compromise, when it was first enacted, and then with
sporadic reforms on specific issues. We had planned to advocate for a review of
the Act and then, through a combination of events over which we had no
influence, a major review was indeed announced in June last year. We were
ecstatic!

The Review of the SDA was undertaken by a federal parliamentary committee,
the Standing Committee on Legal and Constitutional Affairs, chaired by Senator
Trish Crossin, a long-standing advocate for women’s rights and gender
equality within the Australian Labor Party. The Terms of Reference were
excellent.

And then we saw the time frame. The Committee called for written submissions
to be lodged within 2 months. From the Commission’s point of view, this
was extremely challenging, and on a couple of fronts. As many of you will agree,
the work of a National Human Rights Institution (NHRI) should be evidence-based.
It should also be grounded in a human rights based approach, which requires
effective consultation with the people for whom we are meant to be working.
However, we realised that, with the limited time frame for this important review
– indeed the first in over 10 years – the Commission did not have
time to undertake the kind of consultation process that would have been
preferred.

However, we had a depth of experience across the Commission, as well as key
external people and organisations like the Human Law Resource Centre, all of
whom were committed to making the most of this important opportunity to improve
our national legislation. So, very early on, we helped establish a network of
supporters and worked with others to identify the top priorities for reform.

The Committee received many excellent submissions including an excellent
submission from the Human Law Resources Centre and the final recommendations
mirrored many of the submissions received.

Our own Submission[4] was extensive
and wide-ranging, as we recognised that our best chance of receiving a quality
outcome from the Review was to ensure that the parliamentary committee members
had access to as much of our expertise as we could muster in the time frame. Our
final submission was some 300 pages long!

However, that is clearly not its strength. The strength lay in the approach
we took to our recommendations – whereby we called for a two stage
approach to amendments, with some amendments to be made immediately (reform to
sexual harassment provisions, family responsibilities, breastfeeding as a
protected attribute, extended coverage) and a second stage of reforms to be the
subject of further research and investigation. This included an investigation
into the merits of an Equality Act.

This is an approach that was a point of consensus amongst the network of NGOs
and academics with whom we were working, recognising the political constraints
under which law reform occurs. Ask for too much straight away, and you may end
up with nothing. This was also the approach adopted by the Committee in its
final report.

Importantly, the Committee also recommended that a general prohibition
against sex discrimination and sexual harassment in any area of public life be
inserted into the Act. It also supported a general equality before the law
provision equivalent to s10 of the Race Discrimination Act.

The Committee’s Report[5] sets out a clear road map for reform of the SDA. We are now gearing up for the
25th Anniversary celebrations, and we will use this celebration to
call for the implementation of the Committee’s recommendations.

The Human Rights Consultation

In the meantime, the Commission and other human rights organisations and
advocates are waiting with bated breath for the final report of the Human Rights
Consultation Committee with hopes for a statutory charter of rights, or a
national Human Rights Act as it is now commonly referred to. The Commission
supports a Human Rights Act.

Several months ago I conducted a number of workshops for women to encourage
submissions to the Human Rights Consultation.

Women were not among the most vocal participants or public advocates during
the recent Consultation. From my experience, women’s services workers are
exceptionally busy and pragmatic women and to date, the language and concepts of
human rights have not generally been used to bring about great change in the
issues which are of most concern to them.

In both the Brisbane and Canberra workshops, the primary issues women raised
were economic, social and cultural rights, gender based violence and access to
appropriate housing, health, education, advocacy and support services. One of
the goals of the workshops was to extend women’s understanding of the use
and applicability of human rights to these issues. I believe that the ongoing
input of women will increase the chances of getting a system of human rights
protection that will better address the needs of women both here in Australia
and internationally. As human rights educators and advocates it is our
responsibility to continue this conversation past the life of the Consultation
as far as our limited resources allow.

So, I am hopeful that our national laws will be improved to strengthen
equality rights for women in Australia, both through modernising the SDA, and
through a statutory human rights law. Ultimately, I hope to see equality
protection in our national constitution. More on that later.

However, regardless of how strong our laws are, the greatest challenge is for
us to ensure that the women who need their protection most, are the ones
who will be the greatest beneficiaries, both inside and outside the courts.

For example, while women in the Brisbane workshop were supportive of
legislative protection and legal remedies for human right breaches, their
support came with a significant proviso. Their submission recommended that:

“Legal and other remedies for human rights breaches must be accessible
for all Australians if they are to improve the protection of those rights.

Many women do not currently have the resources to pursue legal action or
adequate legal representation or advocacy in tribunals and other decision-making
forums. Human rights legislation should therefore be accompanied by improved
access to legal representation and advocacy. This could include increasing
funding to women’s advocacy services, community legal centres and legal
aid to ensure improved access to justice for women.

Human rights education and other strategies to raise public awareness are a
crucial part of increasing marginalised people’s access to
justice.”[6]

As I said to the women at the workshop in Brisbane, laws matter. But law is
not just about what goes on in the courts. Ten years after the UK passed a Human
Rights Act it has been shown that as well as the legal avenues offered by the
Human Rights Act, one of the most valuable things about the Act was that people
every day were going about their lives benefitting from the law without
resorting to the law.
Extra-judicial processes and tools are of particular
importance to the protection and fulfilment of the rights of women.

Let me now conclude by turning briefly to the Canadian and European
experience. Canada and the EU countries have moved from a position not unlike
ours today, towards enhanced protection for women’s rights and gender
equality.

Canada: Constitutional equality guarantees

I want to look first at the Canadian Charter of Rights and Freedoms,
which came into effect from 1982 to 1985. It brought two
constitutionally-entrenched equality guarantees on to the Canadian rights
landscape – the first a general equality guarantee (on grounds including
sex) and the second a specific guarantee of the rights and freedoms in the
Charter to men and women equally. These were the fruits of two years’ of
impassioned lobbying by women for stronger protections than those previously
available under the statutory Canadian Bill of Rights of 1960.

Prior to the entrenchment of these ‘sex equality guarantees’,
women in Canada had recourse to only the principles of the common law and
statutory interpretation, and the narrowly interpreted sex equality provision
under the Bill of Rights. In the infamous Persons
case[7]
of 1928, the Supreme Court
of Canada unanimously held that the word ‘persons’ did not include
women. Fifty years later, in Bliss v A.G.
Canada
,[8] the Supreme Court held
that Stella Bliss was not discriminated against because she was a woman but
because she was pregnant and so ‘the discrimination arose not because of
law, but because of nature’.[9] This all goes to illustrate that ‘[t]he history of the common law is a
history of courts denying equality to
women.’[10]

Contrast this with the post-1985 experience. Though it got off to a slow
start, the Charter advanced women’s interests by placing legal principles
within women’s experiences and shaping them to be more responsive to
women’s needs. For example, in a 1987 case, Action Travail des Femmes v
CNR
,[11] the court held that the
company’s actions (which limited workplace opportunities for women
employees) constituted systemic sex discrimination. In this way, the Supreme
Court recognised that discrimination could take place without intent to
discriminate and that it was necessary to look at the results or impact of
employment policies which appeared on their face to be neutral.

It is not only the equality guarantees which afford women protection. New
Brunswick (Minister of Health and Community Services) v
G.(J.)
[12] was a 1999 case in
which a mother successfully established a positive obligation by the government
to provide her with legal aid for a custody hearing. Ms Godin lived in poverty.
The Minister of Health and Social Services had been granted custody of her three
children and was seeking to extend this for another three months. Ms Godin
applied for but was denied legal aid for the custody hearing because legal aid
did not cover temporary custody hearings. She applied to the Supreme Court of
Canada for an order that funds be provided for a lawyer and asked for a
declaration that the restricted eligibility for legal aid violated her rights to
life, liberty and security of person under s 7 of the Canadian Charter.

The Supreme Court found that Ms Godin was entitled to legal aid in the
circumstances. It reasoned that when government action triggers a hearing in
which the interests protected by s 7 of the Charter are engaged, it is under an
obligation to ensure that the hearing is fair. One of the judges in that case,
supported by two others, wrote a separate opinion recognising that ‘[t]his
case raise[d] issues of gender equality because women, and especially single
mothers, are disproportionately and particularly affected by child protection
proceedings’.[13] What is
more, this decision had a wider impact – judges in provinces where legal
aid was not given in custody cases began to order it on a case-by-case basis,
and just as women are disproportionately affected by child protection
proceedings, women stood to benefit from this increased access to legal aid in
custody cases.

It is significant how much the Canadian jurisprudence has evolved, from a
formal equality approach to a much more purposive, substantive equality approach
– so much so that it is now beginning to recognise a positive obligation
on the part of government to take a measure which promotes equality. This is
particularly impressive given its common law roots, which saw the Supreme Court
deny women the status of ‘persons’.

So, the Canadian jurisprudence demonstrates that constitutional guarantees of
sex equality and other entrenched rights are powerful tools which women can
wield in their interests. These guarantees opened the door to women to break new
ground and seek redress for their social or economic disadvantage using
previously unheard arguments before the courts.

European Court of Human Rights jurisprudence

Ireland

Across the Atlantic, a similarly ground-breaking outcome had been obtained
twenty years earlier in 1979 by Mrs Airey against Ireland in the European Court
of Human Rights in Strasbourg.[14] Mrs Airey sought a judicially ordered separation from her abusive husband and
was denied legal aid. The court found that this was a violation of her right to
access a court for determination of her civil rights and obligations (protected
under Art 6 of the ECHR). The court’s reasoning was that remedies must be
effective and not illusory, and effective access to the courts required that Mrs
Airey be provided with legal assistance.

This case is particularly significant for women because it recognised that
there are economic, social and cultural dimensions to civil and political rights
(and in fact, they are indivisible). And while civil and political rights have
historically received far greater attention in courts, it is social and economic
rights which have ‘particular resonance for women because they articulate
women’s lived experience of human rights
violations’.[15]

What Australia’s path might look like

Turning now to what Australia’s own path might look like...

Australia does not have a constitutional guarantee of equality rights like
Canada does. Nor do we even have a federal statutory protection of equality
before the law like the one that existed under the Canadian Bill of Rights of
1960. The Committee on the Convention on the Elimination of All Forms of
Discrimination Against Women has on two occasions expressed concern about our
lack of constitutional guarantees for equality of the sexes – as far back
as 1994[16] and again in
2006.[17]

Also in 1994, the Australian Law Reform Commission expressed its support for
the entrenchment of an equality guarantee in the Australia
Constitution.[18] Agencies which
supported this included the QLD Anti-Discrimination Commissioner, the NSW
Ministry for the Advancement of Women, the Victorian Commission for Equal
Opportunity and the Commonwealth Office of the Status of Women.

In its submission to the National Human Rights Consultation Committee, the
Australian Human Rights Commission expressed its support for the start of a
national dialogue to reform the Australian Constitution to include a general
guarantee of a right to
equality.[19] The terms of reference
given to the Committee expressly excluded a constitutionally entrenched bill of
rights. Even if they had not, the political reality is that there are currently
many obstacles to amending Australia’s Constitution. A review of our
record on Constitutional change would confirm that a referendum now or in the
immediate future is likely to fail.

Law is just one part of an overall strategy

Some feminist scholars are sceptical of what human rights hold for women.
Many often argue that legislative enactment of rights does not necessarily lead
to their effective enforcement. I agree – the law alone is not enough
because ‘laws are not self-implementing, nor are they
self-interpreting.’[20]

‘For [any] charter [of rights] to make a positive difference in
women’s lives, women will have to use it, and judges will have to adopt
certain interpretations and reject
others.’[21]

This is already the case with the Sex Discrimination Act and other federal
anti-discrimination law. While there is little controlling which interpretations
a judge will adopt and which he or she will reject, law is too powerful a tool
not to be used by women. The Canadian jurisprudence I have just discussed is
testament of this.

The best approach, in my view, is to recognise the utility and power of law
(and human rights law in particular) without stopping there. It is important to
use law coupled with:

  • First, the political, social and economic context in which the law operates;
    and

  • Secondly, alternative avenues of redress outside of the court
    room.

Conclusion

I hope to have illustrated today, why it is that women ‘cannot not
want’[22] and ‘cannot
not use’ human rights. I have presented the case for why Australia must
have a comprehensive system of human rights protection to promote gender
equality. This includes strong gender equality law, a statutory charter of
rights and a constitutional equality guarantee. This system must be supported by
broad based education that makes clear - gender equality is a human right.

Human rights present possibility after possibility for promotion of gender
equality. Human rights principles may have begun as the tools of men, made in
their image, but that was over sixty years ago.

Let’s not forget that it was Eleanor Roosevelt who was the driving
force behind the Universal Declaration of Human Rights. From Roosevelt to Obama
(or more importantly from Eleanor to Michelle), a lot has changed. And we have
the power to create further change.

We, change agents, need the law just as the law needs us.

We can create a fairer and more equal Australia. Join with me. Let’s
make it happen.


[1] See, for example, A McColgan, Women under the law: The false promise of human rights (2000).
[2] J Conaghan and S
Millns, ‘Special Issue: Gender, Sexuality and Human Rights’ (2005)
13 Feminist Legal Studies 1, p
2.
[3] W Brown, ‘Suffering
Rights As Paradoxes’ (2000) 7 Constellations 230, p
231.
[4] See Human Rights and Equal
Opportunity Commission, Submission to the Senate Legal and Constitutional
Affairs Committee on the Inquiry into the Effectiveness of the
Sex
Discrimination Act 1984 (Cth) in eliminating discrimination and promoting
gender equality
(1 September 2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 28 July 2009).
[5] Senate
Legal and Constitutional Affairs Committee, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality
(2008). At http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 28 July 2009).
[6]What’s in it for Women? A submission to the National Consultation on
Human Rights from a coalition of women’s organisations in Brisbane
,
2008, pp12-13.
[7]Reference re
Meaning of the Word ‘Persons’ in s. 27 of the B.N.A. Act
[1928]
S.C.R. 276.
[8] [1979] 1 S.C.R.
183.
[9] [1979] 1 S.C.R. 183 at
190.
[10] G Brodsky and S Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps
Back?
(1989), p 13.
[11] (1987) 76 N.R. 161.
[12]New
Brunswick (Minister of Health and Community Services) v.G.(J.)
[1999] 3
S.C.R. 46.
[13]New Brunswick
(Minister of Health and Community Services) v.G.(J.)
[1999] 3 S.C.R. 46 at
[113] per L'Heureux-Dubé, Gonthier and McLachlin
JJ.
[14]Airey v Ireland [1979] 2 E.H.R.R. 305.
[15] M
Jackman and B Porter, ‘Women’s Substantive Equality and the
Protection of Social and Economic Rights under the Canadian Human Rights
Act
’. At http://www.equalityrights.org/cera/docs/MJ&BP.htm.
[16] Committee on the
Elimination of Discrimination Against Women, Concluding observations of the
Committee on the Elimination of Discrimination against Women: Australia, UN Doc
A/49/38(SUPP) (1994), para 384. At http://daccess-ods.un.org/TMP/5758227.html (viewed 28 July 2009).
[17] Committee on the Elimination of Discrimination Against Women, Concluding
comments of the Committee on the Elimination of Discrimination against Women:
Australia, UN Doc CEDAW/C/AUL/CO/5 (2006), para 12. At http://daccess-ods.un.org/TMP/5848229.html (viewed 28 July 2009).
[18] See
Australian Law Reform Commission, Equality Before the Law: Women’s
Equality
(1994), p 61.
[19] Australian Human Rights Commission, Submission to the National Human Rights
Consultation
(15 June 2009), para
692.
[20] G Brodsky and S Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps
Back?
(1989) p 27.
[21] Brodsky and Day, p 27.
[22] W
Brown, ‘Suffering Rights As Paradoxes’ (2000) 7 Constellations 230, p 231.
[23] Australian Bureau of Statistics, Personal Safety Survey, 4906.0 (2005), p. 7
[24] Access Economics, The Cost of Domestic Violence to the Australian Economy: Part 1 (2004), p. vi.