Thursday 14 December 2017
The IBA Human Rights Institute’s showcase at Sydney explored gender inequality and the continuing power imbalance in the legal profession and wider society. In these selected highlights, five women – leaders in their fields – gave their insights on cultural gender bias, sexual harassment, and where progress has and hasn’t been made.
Australia’s 25th Governor General, and the first woman appointed to that position
On women in law
Why don’t we use the word ‘prejudice’? There are endless explanations for unequal pay and blatant discrimination. All sorts of excuses are made. We just don’t call out what it is.
In Australia, the number of women in senior leadership and decision-making roles is slowing down, going backwards.
On sexual discrimination
Getting the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) ratified by Australia enabled sex discrimination legislation. These great reforms, which generations of women from every walk of life worked so hard for, have delivered an enormous amount.
The symbolic power of having sexual harassment discrimination proscribed means women know that the law is on their side, that they can take action.
On violence against women
There are still many people who don’t want to confront [the issue of domestic violence]. Around the world, the safety and security of women is the most serious human rights issue.
I’m desperately concerned that, now we have it on the agenda, we keep it there, and it doesn’t become just a ‘tick-a-box’ issue. Unless you are hyper-vigilant about reforms for women, they disappear.
Senior Counsel and President of the Law Council of Australia
On commitment to gender
We have a number of voluntary procurement policies – for example, around the purchasing of legal services – that encourage the consideration of gender in purchasing. You have to consider them, but they’re not mandated with targets or quotas.
What we’ve been trying to do in the legal domain is to introduce targets with procurement to make sure women get a certain percentage of briefs, for example. They’re not mandated targets that they have to sign up to, but a number of big corporates, the government and a large number of law firms have signed on. Without targets, you can’t measure the success of your commitment.Some of the big multinationals and their in-house counsel have a very influential role to play here, because they can require that those things be complied with or ticked off by the law firms delivering the services.
On sexual harassment
If you’re talking about the sly denigration, the vile humour, the put-downs, the harassment, some women are paralysed to do anything about it. Junior women in the workplace, who have no tools or ability to complain, and need the job, will accept it. So we must also have men in positions of power calling it out.
The fear is that, as soon as people become a complainant, it then becomes about them, and their own behaviour is scrutinised or they are blamed for what’s happened. So I understand people’s reluctance to bring complaints. But, at the very least, if you have it in the conduct rules, it does send a clear message that we will not tolerate this.
Of course men can restrain their own behaviour. If we assume that men are compelled to act on their instincts, then we demean them as well. We need to treat each other with courtesy – that underlies everything. We cannot allow men to act in a way that is uncivilised and discourteous to each other and to women. We must call this out.
Sixty per cent of our law graduates are women, but they leave after around five to seven years of seniority. About a quarter of equity partners in big firms are women, and approximately ten per cent of QCs and FCs.
It’s not enough to have super women: you must have equality down through all levels, which is why it’s so important to address equal pay, and look at how we employ, promote, allocate work to and brief people.
The current pay gap between male and female barristers is 147 per cent in Australia. Women coming out of university are topping the class, they are the best and brightest, then something happens and suddenly they’re not valued in the same way. How can this be? You don’t leave university and then become less capable. There’s some blockage in the way we work.
We’re not consciously looking down for women to promote. Those unconscious biases are coming into play so, when we make an assessment about who’s worthy for the mega brief or the key client or front of house role, we think of the fellow who’s already clocked up the accomplishments that we rate as giving them more merit or making them more worthy.
We don’t value in the same way the woman who has stepped sideways into human relations for a time so she can manage her kids, or the person who’s been part-time, or the back of house discovery work and compilation work making the people at the front look fantastic.
We see this at the bar particularly. Women are not appearing in courts in the numbers in which they are coming through law schools.
Chief Executive Officer of the Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara Women’s Council, supporting women and communities in the Central Desert Region of Australia
On women’s advancement
These are the questions of our generation and were the questions of the generation before us. So, clearly, it’s not working.
Do all that you can to prepare yourself for that door to be open. Once the door is open, then really make your mark. The women who are already there are there to mentor and support.
It’s important to acknowledge that legislation opened the door for aboriginal women, in particular, to progress in their communities. Critical mass is really important so that women move forward together, being led by senior people. When you’re a small fish in a big bowl, mass is critical.
On domestic violence
We have to be clearer and very concise in telling the message of what is happening, and to bring men into our community. It’s taken a while, but we must ask ‘why has it taken such a long time for men in power, in Parliament and in the public service to actually support initiatives to get this message out, and for men to be confronted and challenged about their abusive behaviour in communities?’
The resistance of men to getting involved is linked to the power structure, as there’s a benefit in maintaining it.
On women’s and indigenous rights
When I was coming through from university and looking for employment, there was a strategy in the South Australian government to ensure across the public sector, at entry, graduate and management level, the population demographics of aboriginal people in South Australia were represented. I benefited from that because, not only was the target set, but the system swang in to support it. That strategy finished in the mid-1990s, when it should be what we do as the norm. Before white contact, aboriginal people had men’s law and women’s law, and women’s law required certain land to be allocated to women-only sites – so the system was encouraging women to maintain their own laws and authority. Everyone understood that women should be exercising their authority in law, and men exercising theirs, but it was not a dominating relationship.
Shadow Minister for Human Services, and the first indigenous woman to serve in the Australian Federal Parliament
In the Australian Parliament, we are seeing more women as backbenchers, as well as those with portfolio responsibilities. At the moment, there are only two women in the Federal Cabinet. In the Shadow Cabinet, there are nine or ten. That’s a lot to do with the fact that there’s an affirmative action rule and adherence to that rule by the state instrumentalities. It’s applied very stringently and there are many women in the party who ensure it’s applied.
Parliaments are supposed to reflect the people they are representing. Half or even a bit more than half of parliaments everywhere should be made up of women. We, as women, don’t always grasp the opportunity. We’re saying ‘maybe we’re not qualified’, or ‘maybe someone’s better than me’, or waiting to be asked.
In terms of cultural change, what you’re really talking about is legislative reform. That leads to cultural change.
There is a real nexus between what governments do and decide in terms of legislation and how that flows into changing how we conduct ourselves on some issues.
But there’s no quick fix. You’re often challenging hundreds of years of practice.
In some large aboriginal communities, domestic violence is not the exception, but what’s expected.
We need to be able to stand in the shoes of those communities. The way in which women are perceived in those communities needs to seismically shift. It’s not just about law. It’s about bringing about cultural change, which is one of the most difficult challenges I’ve discovered.
A lot of women won’t pursue things because of the way the legal system is structured. They’re afraid of courts; they don’t understand the processes.
The first woman to serve as a Justice of the High Court of Australia
On the power imbalance
In terms of anti-discrimination laws and their application to sexual harassment, and pay and promotion discrimination, you’re dealing with a situation where people are hoping to maintain a relationship while the power isn’t with them. Even if you’re negotiating your pay or your bonus, you’re not the person with the power.
Where women and men are of equal seniority and doing the same work, the female pay rate is 87 per cent of the male pay rate. It’s time we call it discrimination, pure and simple.
Power imbalance occurs within the legal profession, where the ‘old mates act’ still applies. Patronage still applies, which is all about creating somebody in your own image.
It’s not about diversity, it’s the very antithesis of it. You have to deal with the power imbalance before you can expect anything to be different.
On anti-discrimination laws
Discrimination seems to be intractable and incapable of resolution by the application of anti-discrimination laws. The notion that you can bring about equality by a positive right of an individual not to be the victim of discrimination is not going to work.
Discrimination is going to remain an issue. There must be other ways to bring about equality. Corporations could be required to provide data on the amount of women employed, the amount of women who have received promotions, etc.
In terms of sexual harassment programmes, in the United Nations system, each organisation specifically in its employment contract bans sexual harassment and sets up a mechanism by which the person alleging the harassment can lodge a complaint with the internal ombudsman or the human resources department.
The only legal mechanism that can be in play is right at the end of the process, where they can lodge against the finding of if there was or was not sexual harassment. It’s a clear definition applicable in general terms to highly educated, influential civil servants, but unfortunately it doesn’t seem any better than anywhere else.
On equal opportunities
Fundamentally, at certain levels, you just don’t get equal opportunity. Women are not getting the same work at various levels, not getting the briefs at the bar. There is a discrimination. That is not to say that no one can succeed, that everyone is bound to fail – hard work alone will get you a certain way along the path – but it is to acknowledge that these barriers are there.
This article features selected highlights from the IBA Human Rights Institute’s Showcase ‘Women’s firsts – How does international and domestic law help (or hinder) women to succeed?’. The panel discussion, which took place at the IBA Annual Conference in Sydney in October 2017, was moderated by IBAHRI Co-Chair, Helena Kennedy QC.
Films of the full session are available here and here