Precedent (Australian Lawyers Alliance)
GENDER EQUALITY: DO WOMEN ENJOY HUMAN RIGHTS IN AUSTRALIA?
By Professor Beth Gaze
Human rights such as protection from violence in the home, and from being discriminated against at work because of pregnancy, childbirth or maternity leave, are essential to gender equality. At present, however, women in Australia – as in many other parts of the world – do not enjoy human rights.
Human rights issues for women are complex because they include rights that men also need protected, as well as rights that are seen as different from those that men need. Everyone needs protection of their civil and political rights, including freedom of expression and movement, and political participation; as well as economic, social and cultural rights such as the right to education, just and fair terms of work, and an adequate standard of living. However, women also need protection because of vulnerabilities that derive from their different experiences, whether they arise from differences of sex (in terms of reproductive function) or gender (different social expectations of men’s and women’s roles). Because this second type of rights is seen as gendered and therefore not ‘universal’ like the first group, it is often regarded as less important. This works to reinforce the perception that rights important to men are universal, while rights important to women are particular and therefore not of equal priority.
The rights of particular importance to women are inadequately protected. Where women are differently situated to men in relation to harms from sexual objectification, assault and sexual violence (often in the home from intimate partners), their legal protection is rarely adequate. Even where women are popularly regarded as being similarly situated to men – for example, in education and the workforce – in practice they remain inadequately protected; for example, by limited protection against sex discrimination (that is difficult to prove and enforce, as discussed below) and inadequate provision for childcare and flexible work, which confines women to lower paid lower status work. I argue that although both types of rights are vitally important for large numbers of women, they are devalued because they are seen as women’s rights only. Because men do not encounter the problems of loss of work or chances of advancement at work due to their reproductive role, or (to a large extent) of violence in the home, they do not have the same direct interest in protecting these rights. The fact that men already enjoy these rights means that they are seen as gendered rights, rather than universal rights that are not universally protected and enjoyed.
Even in relation to the ‘universal’ rights, such as civil and political rights, women generally have less access to opportunities to exercise or enjoy these rights. For example, parliament, the media and the executive levels of many social institutions, from businesses to sporting clubs, are disproportionately occupied and controlled by men. This makes it difficult for women to enjoy the right to freedom of expression and opinion, as they have less access to audiences of importance and therefore less influence. Laws that focus only on protecting the right to speak, but fail to notice whose voices most benefit, overlook substantial aspects of women's disadvantage and lack of power, including discounting as unimportant both women's concerns and their inability to have their voices heard. Where women do speak, our socialisation treats women's perspectives and voices as less valuable and weighty than men’s, with the result that their views are not accorded the same respect or importance.
GENDER EQUALITY: THE SOCIAL AND LEGAL CONTEXT
Law is a reflection of the society in which it develops and emerges, and whose structures and processes it both guides and constrains. Until the late 19th century, Australian law and the English law from which it emerged contained many oppressive rules that confined women to a position of legal as well as social inferiority. During the 20th century, Australian law has slowly reduced its restrictions and limitations on women. Feminist campaigning led to progress that improved women's rights in many areas of law, but the process of changing law to protect women adequately is far from complete. Although many legal restrictions were formally removed, in many areas the process has not yet been completed by ensuring that in practice women enjoy their rights to the same extent as men, such as a right to equal pay.
Even where the law recognises rights, actually enjoying them needs more: it requires attitudinal change by everyone, but particularly by men, who often hold the current reins of power that allow them, through inertia, unconscious attitudes and resistance to change, to exclude others and maintain practices that operate to serve their interests. Beyond changing attitudes, there must also be changes to social practices (and any laws and policies that support them) to remove or transform practices that are hostile to women's ability to enjoy their rights. (Some examples of the necessary changes are considered below.) To see such changes as necessary requires an acknowledgement of the existence and pervasiveness of gender biases that we all hold, and that have shaped the ways in which society is organised and the differential valuation of men’s and women’s lives and activities.
For example, exposure to violence in the home or from an intimate partner is an area in which there is a vast difference in men’s and women’s experiences, and it has taken a very long time for this major threat to women’s human right to safety and life to be recognised and taken seriously. While the legal system eventually recognised the right of women not to be subject to legal acceptance of rape in marriage, and even, at the international level, recognised rape as a war crime, protecting women from violence in the home has taken a great deal longer. Governments’ failure to take it as seriously as, for example, the lower risk of a young man being killed by a ‘king-hit’ by a stranger, suggests a highly differential valuation of men’s and women's lives. Prioritising a response to safety in public spaces over the much greater threat to women in their own homes can itself be seen as an indication of bias; both areas need a response, but only one has had it. Tenacious campaigning, and horrific reports and statistics on the prevalence of, and death rate of, women from intimate partner violence have finally seen attention paid to it. With the Victorian government’s decision in 2015 to set up a Royal Commission into Domestic Violence, some progress may finally be forthcoming in this area.
The implicit but unacknowledged differential valuation of men and women underpins the valuation of some human rights as more important or fundamental than others. Differential valuation of rights in turn can be a problem. For example, freedom of expression is regarded as a fundamental human right, but it can have effects that are problematic for women where it reinforces the power of groups that currently control society over those who are seeking to change their disempowerment. Under-representation of women in Australian parliaments, which limits women's ability to have a say in their own governance, is not recognised in Australia as an equality issue other than within the Australian Labor Party, where a quota system operates to ensure that a reasonable proportion of women are candidates in winnable seats. By contrast, in the recent French municipal elections, positions were paired, with a man and a woman elected to each district. This is not seen as a quota system but simply as parity; fair representation of the population.
Women's progress towards full enjoyment of their human rights in Australia is slow and uneven, with steps backwards as well as forwards. That change is neither linear nor always in a progressive direction is clear from the fact that, after many years of decline, the gender pay gap is currently increasing. Having reached a low point of 14.9 per cent in 2004, it is now over 18 per cent and is continuing to increase. Women's position at work illustrates the complexities of the relationship between legal change and social change. Influences occur in both directions, so that legal change in most cases follows from and builds on some degree of social change, while also often stimulating further social change. Allowing women to enjoy and exercise their human rights requires legal and attitudinal changes that flow into the larger task of changing social practices.
THE NEED TO LOOK AT WHO ACTUALLY ENJOYS RIGHTS
Formal or theoretical approaches to rights that do not examine whether they are equally enjoyed by everyone run the risk of justifying their exercise by those who currently enjoy them, without noticing the inability of many sectors of the population to do the same. I have already argued that women's lack of power in society means that women's contributions tend to be undervalued. Because of women's substantial absence from these roles, the men who hold them largely deal with other men, which normalises male leadership and exercise of power, and renders women's lives and experiences not visible to those who hold power. More seriously, however, the message conveyed by this power structure is that women are not entitled to equal power to men and that their concerns are less important.
The discrepancy in the price that men and women pay for success at work is a further indicator of these differences. As Annabel Crabb recently explained, women face a ‘wife-drought’ that limits their ability to compete effectively in high-level jobs for which a domestic support worker, who is either not working or who works part time and prioritises the high-level worker’s job first, is almost essential. This need of a ‘wife’ also imposes a double burden on all working women. It is a factor that limits women's ability to progress to higher levels of the workforce, and in turn, women's exclusion from the realms of power has other problematic repercussions. The majority of men who do work in positions of power, with the support of a domestic support worker (a wife), may have little contact with or understanding of the challenges working women face. This effective exclusion from power of women with children further reduces both understanding of and the value attached to the domestic sphere where not only children, the elderly and people with disabilities, but also those men who inhabit the halls of power, are cared for. Policies and processes developed without regard to the processes required for social support and reproduction effectively impose the full cost of such processes on women.
Protection of pregnancy and motherhood
A good example of the failure to protect women's rights is the illusory protection offered by law to women workers during pregnancy and maternity leave. Although labour law provides a right to unpaid parental leave and a right to return to the same job afterwards, and anti-discrimination laws in all jurisdictions prohibit discrimination on the basis of pregnancy and associated issues such as taking maternity leave, in practice women do not enjoy adequate protection in these areas.
First, the law is difficult to enforce. A complainant has to prove the basis for any unfavourable treatment without access to information about the employer’s reasons, and is likely to be met with an argument that any unfavourable treatment they have received was due to their own actions – for example, that their work performance was sub-standard. Pursuing a case will be personally challenging, requiring great determination often at a time when the demands of a newborn baby have to be met, and with a risk that their reputation will be undermined by being seen both as a poor performer at work and as a litigious person who is likely to disrupt a workplace. Although pregnancy discrimination was one of the first areas in which the Fair Work Ombudsman became active in enforcing workplace laws, recent reports from the Australian Human Rights Commission (AHRC) continue to demonstrate that such discrimination remains widespread and persistent.
Second, there are large loopholes in protection. For example, a woman in NSW who obtains a job while pregnant but does not tell the employer that she is pregnant can be dismissed on that ground. This provision appears to authorise discrimination on the ground of pregnancy against women who are pregnant, and to make it very difficult for a pregnant woman to obtain any decent ongoing work. The mere existence of such a provision is testament to parliaments’ reluctance to fully protect women's fundamental right to work and earn a living.
Further, although a woman who takes parental (maternity) leave has a right under workplace laws to return to her previous job (provided she has held the position for at least a year), the courts have opened a wide exception to that protection. Courts have regularly held that where the employer decides to restructure its workforce to make the woman’s position redundant while she is on leave, then no discrimination occurs, as the reason for her unfavourable treatment is the redundancy, not the maternity leave. Courts have not been prepared to acknowledge that it is often only because the woman is on maternity leave that she is exposed to the risk of her employer deciding that she is not needed in the workforce and deciding to restructure. To reach this result, the courts compare the woman’s treatment with that of a hypothetical comparator – namely, a person of a different sex – who takes long leave and has a legal right to return to work who, they say, would be treated the same. In reality, no such comparator exists; the hypothetical is entirely unreal, as there is no specific provision for men to take long leave with a legal right to return that is comparable to maternity leave, so in practice men are not exposed to this risk. Because it is a women-only right, it has not been accorded sufficient importance by the courts. Allowing this type of artificial comparison and attributing enough of the distinctive characteristics of the woman on maternity leave to the (non-existent) comparator ensures that courts will not find less favourable treatment of the woman, and hence no discrimination. The legal result is that it is not difficult for an employer to restructure its workforce or a particular section of it while a woman is on maternity leave and thereby avoid its obligations under anti-discrimination laws.
Courts that have engaged in this reasoning have paid little attention to the human rights character of the right to maternity leave under the Fair Work Act, or to its vital importance in maintaining women's connection with the workforce during their limited years of reproductive activity. Pregnancy and early maternity are biological functions that have no male equivalent and deserve protection in their own right if we are serious about ensuring gender equality.
This denial of human rights affects women very widely, because many working women have children and assume that they are adequately protected by law while they are on maternity leave. When women lose their jobs during pregnancy or early parenthood, obtaining a comparable job while engaged in caring for an infant can be very difficult. Lost with the job are also the right to return to work on a flexible basis, and the advantage of remaining in an ongoing position for at least 12 months, in order to have a right to return to the same job and to be paid maternity leave for a future pregnancy. Many women find that the only work available to them subsequently is part-time, casual work that is low paid, often insecure, offering little or no entitlement to workplace benefits, and with no or limited prospects for advancement. They are placed on a path to lower job status and pay that leads to the creation of the ‘reserve army’ of women in part-time casual employment who lose out in our economy. The disproportionate concentration of women into these low-level and low-paid positions, and thereby into poverty in old age, is itself evidence of Australia’s failure to protect women’s social and economic human rights. As the Australian Human Rights Commission has observed, women's disadvantages at work and greater responsibility for family care lead to reduced income during their working lives with consequence reduced capacity to accumulate superannuation and greater dependence on the aged pension, producing higher rates of poverty in old age.
Given these structural circumstances, it is not surprising to find that the pay gap is not only not closing, but getting wider, reflecting the lower valuation of women's jobs as well as women's lower status in the workforce. Where progress has recently been made in improving pay for lower-paid women, it has been because governments committed funding to it, instead of leaving women to bear the costs of this disadvantage by arguing that it is too expensive and disruptive to change.
CONCLUSION: THE NEED FOR A TRANSFORMATIVE APPROACH
For many women, rights such as adequate protection against violence, and of their rights to work and equal pay, are currently more important than civil and political rights such as freedom of expression. Once women achieve a degree of protection and equality in the enjoyment of their workplace rights and their right to safety and security of the person, those traditional civil rights will become relatively more important for them. It is easier to be concerned with freedom of expression is when one is not always busy with the double load of work and family/domestic care work, and one has a sufficient income to allow a degree of leisure to exercise it.
Given the problems of structural gender bias in our world, transforming social practices and attitudes is necessary before women can enjoy human rights. Gender equality struggles within the current system. Conscious and unconscious biases affect every area of activity, undermining the possibility of women having full equality. Without a transformative approach, women’s human rights are treated as ‘special’ rights that are not as important as men's (or ‘universal’) human rights, and little attention is paid to whether rights are actually enjoyed once they are formally recognised.
Beth Gaze is Professor at the Law School, University of Melbourne. PHONE (03) 8344 6173 EMAIL firstname.lastname@example.org.
 These rights are drawn from the UN International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966).
 There are ongoing tensions over sexual assault laws and protection from domestic violence. This includes debates over the issue of consent in sexual assault laws, and an ongoing failure to provide adequate protection for victims of family violence, in terms of police protection and services that will enable them to safely escape their situation, which will be investigated by the Victorian Royal Commission into Family Violence.
 Australian Human Rights Commission (AHRC), Supporting Working Parents: Pregnancy and Return to Work National Review – Report (2014); Productivity Commission, Childcare and Early Childhood Learning (2015).
 Dr Joy McCann and Janet Wilson, ‘Representation of women in Australian parliaments 2014’, Parliamentary Library, Research Papers 2014-15; World Bank, Proportion of seats held by women in national parliaments (%) (2015) at http://data.worldbank.org/indicator/SG.GEN.PARL.ZS; Inter-Parliamentary Union, Women in national parliaments, Situation as of 1st February 2015, at http://www.ipu.org/wmn-e/classif.htm; Workforce Gender Equality Agency, Gender workplace statistics at a glance (2015) and other gender statistics at https://www.wgea.gov.au/research-and-resources/fact-sheets-and-statistics.
 Many of women's common law legal disadvantages were reviewed by Jocelynne Scutt in Women and the Law (Law Book Co, 1990). These include married women's lack of legal personality and inability to own property, denial of entry to university, denial of the right to vote and, until the 1950s and 60s, loss of a permanent position in the public service on marriage.
 The rights that gained legal protection during the 20th century ranged from the right to vote and to enter universities early in the century, through to the right to equal pay and family benefits in the middle of the century, to the adoption of ‘rape in marriage’ laws, the criminalisation of domestic violence, and the reform of sexual assault laws later.
 For a recent review of gender bias in the law, see the Women Lawyers Association of WA, 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report (2014), available at http://www.wlwa.asn.au/projects/2014-gender-bias-review-report.html.
 Charlie Pickering noted the contrast in government reactions to three deaths in two years of young men from king hits compared with 70 or more women’s deaths per year from family violence: ‘Charlie Pickering wants to speak to you about your priorities’ Mamamia website 9 January 2014, at http://www.mamamia.com.au/news/charlie-pickering-chat-priorities. Different but still disproportionate figures are given by Jess Hill in ‘Home truths: The costs and causes of domestic violence’, The Monthly (March 2015) noting that ‘Since 2000, “coward punches” have killed roughly seven men each year.’ See also Counting Dead Women Australia 2015, a facebook page run by the Counting Dead Women research project and online group, Destroy the Joint, which counted 34 women killed up to the end of April 2015.
 The proliferation of reports, rather than action, on domestic violence was criticised by Janet Ransley and Christine Bond in ‘Cancel the inquiries: we don’t need more reports on domestic violence’, The Conversation, 12 March 2015. In previous years, an average of at least one women a week in Australia has died as a result of family violence; in 2015, the number of deaths has increased substantially: Jean Edwards, ‘Royal commission into family violence aims to improve Victoria's “struggling system”’, ABC News 23 February 2015; Tracey Bowden, ‘Thirty-one women killed in Australia in 15 weeks renews call for action’, ABC TV 7.30 13 April 2015 (at http://www.abc.net.au/7.30/content/2015/s4215739.htm). In Victoria, it has been reported to occupy one-third of all police work: Premier of Victoria, Media Release, ‘Nothing Off Limits in Family Violence Royal Commission’, 19 January 2015.
 Literature in English on this is rare. See Sarah Elzas, ‘Gender parity in French politics faces test after departmental elections’, 2 April 2015, accessed at http://www.english.rfi.fr/france/20150402-gender-parity-french-politics-faces-test-after-departmental-elections. For background, see Murray, R, ‘Towards Parity Democracy? Gender in the 2012 French Legislative Elections’ Parliam Aff (2013) 66 (1) 197-212.
 The Workforce Gender Equality Agency maintains updated statistics and fact sheets at https://www.wgea.gov.au/research-and-resources/fact-sheets-and-statistics.
 Annabel Crabb, The Wife Drought (Ebury Australia, 2014).
 See note 4 above.
 Fair Work Act 2009 (Cth) ss67, 70 and 84.
 Sex Discrimination Act 1984 (Cth) ss5, 7 and 7A.
 Fair Work Ombudsman, ‘Helping women avoid pregnancy discrimination’ (7 July 2010) available at http://www.fairwork.gov.au/about-us/news-and-media-releases/2010-media-releases/july-2010/20100707-pregnancy-discrimination-campaign. The most common discrimination complaint received by the FWO in 2012-13 was pregnancy discrimination: See Annual Report 2012-13, 32.
 Anti-Discrimination Act 1977 (NSW) s25(1A) and (2A).
 See, for example, Stanley v Service to Youth Council Incorporated  FCA 643.
 It could be argued that a long-term employee taking a year’s long service leave could be a comparator, but the length of service needed to accumulate that length of leave compared to the situation of female employees having children would arguably make the circumstances of the cases different.
 See note 9 above.
 AHRC, Accumulating poverty? Women’s experiences of inequality over the lifecycle (2009).
 See note 7 above.
 For example, the availability of funding to cover the pay increases resulting from the success of the Australian Services Union’s equal remuneration case for workers in the non-government social and community services sector in 2011 and 2012 was based on a commitment of funds by the Commonwealth and state governments to cover the necessary pay increases: Andrew Stewart and Meg Smith, ‘Equal Remuneration and the Social and Community Services Case: Progress or Diversion on the Road to Pay Equity?’ (2014) 27 Australian Journal of Labour Law 31.
 A similar argument is made by Katrine Marçal in Who Cooked Adam Smith's Dinner? (Scribe, 2015).