Recording: Making the law work for women

VERITY FIRTH:  Hello, everyone who's joining us today.  I'm just going to wait maybe 30 seconds as people enter the virtual room and then we'll kick off today's discussion.  We've got many people registered for today's event, so we thank you very much for joining us. 

 

We've now hit 180 people in the room, so I think I might kick us off.  Hello, everyone.  Thank you very much for joining us for today's event.  I want to acknowledge that wherever we are in Australia, we're on the traditional lands of First Nations people.  This was land that was never ceded and I want to take a moment to really respect and honour that ownership.  I'm on the land of the Gadigal people.  I live in Glebe, so I'm on the land of the Gadigal people of the Eora Nation, but if everyone else can pay respect to the Elders of the land that they are on today. I'd also like to take a moment to share a great acknowledgment from a partner, the Academy of Social Sciences in Australia, and I understand there's going to be a video.  (Video played).

 

Thank you for that.  So my name is Verity Firth.  I'm the Executive Director of Social Justice here at UTS and I also head up our Centre for Social Justice & Inclusion.  It's my huge pleasure to be welcoming you all today. 

 

Today's conversation is about making the law work for women and it's also a chance to launch Dr Ramona Vijeyarasa's newest book, International Women's Rights Law and Gender Equality: Making the Law Work for Women, and it's being displayed by Ramona.  You'll be able to see that soon.  We're also going to be joined by Professor Marian Baird, Catherine Fox, and Dr Heather Nancarrow, and I'll be introducing them all properly a little later.  I'd first like to acknowledge that today's event is also thanks to the UTS International Law Research Cluster and to give a shout‑out to them as well. 

 

First, a few pieces of housekeeping.  Today's event is being live captioned.  To view the captions, you need to click on the "cc" panel, closed caption button, at the bottom of your screen in the Zoom control panel.  We are also posting a link in the chat now, which will open the captions in a separate internet window if that's what you would prefer.

 

There will be an opportunity to ask questions during today's event.  Please type them into the Q&A box.  You'll see that also in your Zoom control panel.  Now, that gives you an opportunity to vote up questions as well, so you can go in and vote other people's questions up, and I tend to ask the most popular questions, but not always.  Still, it is an opportunity to vote up the good questions of other people.

 

Legislation clearly has a tremendous potential to advance women's interests and fight gender inequality.  It's a key part in fighting domestic violence, guaranteeing reproductive rights, and promoting shared responsibilities for care at home.  But the law and law makers are failing women time and time again.  Worldwide discrimination against women is rife, aided and abetted by laws, and in the face of turmoil and uncertainty, previously made progress is increasingly at risk. 

 

In her book, Ramona has brought together leading experts on gender equality to better understand gender‑responsive domestic legislation.  So how are we doing in Australia at meeting international women's rights norms, legislating for gender‑based violence, women's reproductive health, labour and equality, and taking gender into consideration around taxation, environmental justice, and good governance?  I'm really delighted to throw now to Dr Ramona Vijeyarasa to open the discussion.

 

DR RAMONA VIJEYARASA:  Thank you very much, Verity, for that great introduction.  I would also like to acknowledge the traditional owners of the land from wherever you are joining us.  I'm joining us from the Gadigal land of the Eora Nation.  I would like to pay my respects to Elders past, present and emerging.

 

I'm really thrilled today to be able to launch International Women's Rights Law and Gender Equality: Making the Law Work for Women and my remarks will really focus on the second part of the book's title, "making the law work for women", and given the audience, really offer some Australian perspectives.  I want to thank the Centre for Social Justice & Inclusion for co‑hosting today's conversation. 

 

I'm also very grateful that we, as the collaborators for this book, have the support of the Academy of the Social Sciences in Australia to actually come together last year to have a conversation about how the law can work better in making the world a more equal one.  It's thanks to the Academy's workshop grants and the support of Professor Diane Kirkby we could bring together a brilliant group of collaborators who really work all around the world to discuss what is a global challenge, gender inequality, and I'd love to continue that conversation through the chat and hear from a diversity of women about their experiences of intersectional inequality and how that impact is so often compounded by women's multiple identities.

 

When I was invited to open today's remarks, I really had to reflect on the dialogue that we as collaborators had when we met for the Making the Law Work for Women symposium and I knew I could never do justice to the richness of that dialogue because we're such a diverse group of scholars with diverse views on the law, and I'll talk a bit about that diversity a little later on.  So I think it's only really fair just to share my own view, which is that I genuinely believe in the power of the law to do more and be more effective in the fight against gender inequality.

 

In one of the chapters of the book, Becky and I refer to the words of Audre Lorde, a civil rights activist from New York City in the 1970s.  Lorde described herself as black, lesbian, mother, warrior, poet.  She famously wrote the essay The Master's Tools Will Never Dismantle The Master's House, and we kept coming back to this analogy through our Making the Law Work for Women symposium because that's how many people view the law.  The law, both international law and domestic law, is male centric.  It's male centric in terms of who writes the law, who implements the law and who judges the law and for many the legal system cannot bear the weight of women's rights.

 

At the same time, complete upheaval of the legal system is unrealistic and I suppose I would take this one step further, which is not only that it's unlikely that we're able to burn down the legal system altogether, although we may want to from time to time, I think there is a lot to gain from chipping away at this broken legal system through law reform.  What this book really shows me as someone who had the privilege of combing through the chapters several times is three things must underpin that law reform, and the first is bringing women back in the law, the second is expanding what we understand to be a women's issue, and the third is this ongoing struggle against women and gender being treated as an add‑on.

 

So in terms of bringing women back into the law, feminist scholars and women's rights activists have fought for law reform for decades and we as collaborators really benefited from that work.  In the 1990s there was a real push for gender‑neutral legislation and we saw the onset of terms of "them" and "theirs", "he" and "she" and "chairperson" in the law.  But these gender‑neutral laws often left the law blind to women's experiences. 

 

So we may want to ask ourselves can we write the law for women?  This is one of those points where there wasn't complete agreement among the collaborators.  As lawyers and in a legal system like Australia we don't write the law for one group.  A blanket law is written for everyone.  What quickly happens is that law fails to acknowledge difference. 

 

Now, you can take any piece of legislation and that law will be experienced differently depending on whether you're a man or a woman or you don't identify as either.  How a woman experiences the law will naturally be impacted by multiple factors, including her race, whether she's married, single, cohabiting, whether she's wealthy or poor, whether she's a migrant or from a non‑English speaking background.

 

Law reform can only go so far, but the end goal has to be gender‑responsive legislation and it may be correctional like gender quality quotas, rethinking our law altogether, and hopefully we'll hear from Marian about how the paid parental leave scheme needs a ... unequal care.

 

It may be controversially writing the law for women.  Now, in Australia we shied away from this approach and tended to have gender‑neutral laws and when we have written women into the law, we've promoted gender stereotypes such as naming women as primary carers.  When it comes to domestic violence or sexual harassment or laws that entitle people to leave from work for family or domestic violence, our laws remain gender neutral, even though we know women are the majority victims of domestic violence, for example, and not every country legislates this way.  There is legislation in some countries around the world where the law is written for women when it comes to domestic violence in Spain, in the Philippines, in India, in Costa Rica, in the way it acknowledges women are the primary victims.

 

Regardless of the approach, the end result has to be legislation that acknowledges that the law will be experienced differently by different people and if we are going to rewrite the law, we need data to actually understand how different people are experiencing the law because we cannot correct what we do not properly understand.

 

So the second core ingredient that really comes out in this book is expanding what counts as a women's issue.  I was really privileged to spend a decade before joining UTS working in civil society and advocating as groups of women rights activists including before the UN and at one point women's reproductive rights was my bread and butter and it was a real pleasure to have former colleagues from the Center for Reproductive Rights bring to this book their case studies on abortion law reform in Kenya, Rwanda, India and Nepal. 

 

Now, these are the kinds of issues that women's rights activists and scholars focus on because they're fundamental women's rights issues ... unequal pay, gender equality quotas, but there has to be an expansion in what we understand to be women's issues and we need more and more women with gender expertise in these so‑called gender‑neutral areas, like the environment, like taxation, like corruption, and we need to bring a gender perspective to all areas of law and have women sitting at the legal drafts table when a country decides how it's going to design, for example, its tax system or spend those taxes on things like subsidies for child care.  Kathleen Lahey and Miranda Stewart bring it out nicely in the book on the chapter on gender and taxation. 

 

On top of writing the law for women and, second of all, expanding what counts as a women's issue, the third sort of ingredient I wanted to bring out in just these initial remarks was really continuing this ongoing battle where gender and women are treated as an add‑on.  There's great research in the book by Jose McGill on corruption and Maguire on gender and the environment which really centres around the work of First Nations scholars in this space and both of those authors, and they're entirely independent chapters, name the same issue, which is that in international dialogues when delegates are meeting to negotiate the provisions of international treaties, they often turn to the gender issues to take a break from the so‑called tough issues of the day, let's take a break, deal with gender stuff and then we'll get back to the real work of the day.  That sort of mentality leads to a tick box exercise, rather than a critical and constructive conversation about how to bring a gender perspective into international law in the way that might actually shift existing power relations.

 

So just to conclude, I think it's worth reminding ourselves that law making was not always this way.  This book brings together scholars who are newer to the field of gender equality as well as scholars who have been working on these issues for decades, really lay the path and remember the days when governments cared when they appeared before the UN and were shamed for the gender record or, alternatively, were proud when they were setting new gender‑responsive global and legislative trends. 

 

Marian Sawer is one of the contributors to this book who's fought for gender equality quoters and gender‑equal partners for decades who really remembers these heydays in Australia.  So I think it's worth saying it doesn't have to be this way because it wasn't always this way.  Perhaps it's about asking where are the entry points for us to make some headway on actually achieving gender‑responsive laws that are going to do something about these decades of inequality.  Thank you very much, Verity.

 

VERITY FIRTH:  Thanks, Ramona.  That was fantastic, a wonderful opening. 

 

So just before I introduce the rest of our panellists, I should point out that Ramona is the architect behind the Gender Legislative Index, which is the first comprehensive IT‑based tool to make legislation work more effectively to improve women's lives.  So people should check that out.  She's also, of course, a senior lecturer in the Faculty of Law here at UTS, a research fellow with the Women's Leadership Institute Australia, and the editor of International Women's Rights and Gender Equality:  Making the Law Work for Women, which of course is the book she's just been referring to and which, if you click on the link in the chat, you can go and buy yourself a copy, which I encourage everyone to do.

 

So now it's my pleasure to introduce today's panellists and we're going to open this up to a bit of a panel discussion.  First, Marian Baird.  Marian Baird is Professor of Gender and Employment Relations and the Presiding Pro‑Chancellor of the University of Sydney.  Marian is one of Australia's leading researchers in the field of women, work and family and was awarded an AO in 2016 for outstanding services to improving the quality of women's working lives and for contributions to tertiary education.  Marian's research was instrumental in the development of Australia's paid parental leave scheme and she is co‑convener of the International Parental Leave Network.  Welcome, Marian.

 

Catherine Fox is a leading commentator on women and the workforce, award‑winning journalist, author and presenter.  During her long career with the Financial Review, she edited several sections of the newspaper and wrote the Corporate Woman column.  She has also published five books, including Stop Fixing Women, which I particularly enjoyed, Catherine, and along with her journalism was awarded the 2017 Walkley Award for Women's Leadership in Media.  Catherine helped establish the annual Financial Review 100 Women of Influence Awards.  She is a gender equality advisor to the Australian Defence Force, sits on the Australian's Investing in Women Board and is co‑founder of the Sydney Women's Giving Circle.  Welcome, Catherine. 

 

For 40 years, Dr Heather Nancarrow has worked to address violence against women, including through community services and advocacy, government policy and research.  Heather is the retiring CEO of Australia's National Research Organisation for Women's Safety and an Adjunct Research Fellow at the Griffith Criminology Institute, Griffith University.  Her scholarship is focussed on justice responses to violence against women.  Welcome, Heather. 

 

All right, so I'm going to start with a question to all panellists.  We've just heard Ramona's perspectives on this, so let's start with a broad question for the rest of you, as briefly as you can ‑ I'm going to give you 2 minutes each.  I'm going to ask why is it necessary to bring gender into consideration when legislating, and we might start with you, Marian.

 

PROF. MARIAN BAIRD AO:  Thanks, Verity, and hello, everyone who has joined this webinar.  I see it's now over 300.  It's fabulous, Ramona, and that's a testament to the work you've done.

 

I want to begin by actually congratulating Ramona on her excellent book, which I'm going to hold up again.  It's such a pity we can't join together in person to launch this book and to recognise the work that Ramona did.  I want to say that Ramona was a great leader in managing the process of bringing the book together and it was actually an honour for me to participate and to hear from so many other leading experts, both in Australia and internationally, on this project that you have developed.  It's a huge project and it's a tribute to you.  So congratulations, Ramona.

 

So the question ‑ I have to come back to the question, Verity ‑ why is it necessary to bring gender into consideration when we're making law?  Well, I think it's best if I speak from the work that I've done myself and what I do is research women and their working lives over the lifecycle.  And I'm really interested in changes in the labour market and how we respond to those changes and of course what I notice is that there have been two profound changes in the Australian labour market and in the labour markets of most high‑income countries and it's now flowing through to middle‑income and lower‑income countries as well. 

 

And the two most critical changes have been ‑ the first is the increase in the number or proportion of mothers in paid work, and of course that led me to do the work around the need for a paid parental leave scheme in Australia and many of us are very familiar with that whole demographic shift and the impact on us in our homes and in our workplaces.  But the second major change has been the increase in older women in the Australian workforce, 45, 55 and above, and in fact that's been a more profound shift than the increase in mothers. 

 

So we've had two enormous shifts in the Australian labour market, which have flowed back into ramifications and consequences in our social arrangements and in our family arrangements and, of course, in our workplaces.  And yet workplaces and most of our labour law legislation was designed with males in mind, males who were carefree and were able ‑ or "care less", as Barbara Pocock so famously said.  From my perspective, therefore, we really needed to address those laws, to pay attention to these two profound changes that have happened and to the ongoing changes that we see happening.

 

So women constitute half of the Australian labour force now and they are in the most critical industries and, look, COVID has really brought that to light.  So it's essential, I think, that we do bring the law into focus and put on it a gender lens and really bring a gender perspective when we're making and changing legislation, and I think that's where I'll end.  I really want to reinforce it's not just you do it, you make a change in a law or introduce a new law and let it sit.  Because the labour market and social context changes so radically and so quickly, we need to constantly be watching the law and making sure that it is paying attention to the needs of women and to the needs of women in their diverse characteristics, not just one group of women, and Ramona pointed that out in her introduction.  So I'll leave it there.  Thanks, Verity.

 

VERITY FIRTH:  Thanks for that, Marian.  That's a really good point about the need to constantly adapt that law, adapt law to social change.  Catherine, why do you feel it's necessary to bring gender into consideration when legislating?

 

CATHERINE FOX:  Well, just before I answer that ‑ thanks, Verity ‑ and congratulations, Ramona and everyone who contributed.  It's a fantastic book and just to acknowledge I'm on Cammeraygal land and I pay my respects to Elders past, present and emerging. 

 

Well, I've spent probably most of my professional career arguing ‑ I shouldn't say that, should I? ‑ exploring and analysing some of the issues around women in the workplace, which is why I have harassed Marian Baird on many occasions over the last few decades.  And one of the things that was actually beautifully summarised ‑ I don't know if you can have author envy, but I certainly did when the book Invisible Women came out a couple of years ago now by  Caroline Criado Perez, the English writer, and her point being that in so many parts of our lives there is a default to a male paradigm, a male construct. 

 

And I'd written a book about a year before that called Stop Fixing Women, which was basically making a fairly similar point about workplace structures, that even when it's acknowledged that there is a gender gap ‑ goodness, it's taken a while for that to filter through, despite reams of evidence, that what a lot of organisations default to is a remediate model.  They blame women, they hold them up to a male breadwinner model which doesn't even apply to a lot of men anymore and then they tell them they're wanting.  What we do, unfortunately, is go into this sort of hamster wheel which means we don't progress and we know that in this country the fragile progress that we had made around women in all kinds of paid work but naturally, of course, the impact on unpaid work as well has been very slow and in some ways is going backwards, exacerbated by the pandemic. 

 

So my point in Stop Fixing Women is as long as you continue to blame a marginalised group who are out of power, which isn't even logical, what you do is embed the very stereotypes that cause the problem in the first place.  So we don't challenge the system, we don't challenge power, and we don't actually change the cause.  We continue to look at the symptoms and incorrectly blame the group that's been marginalised. 

 

So that's a very brief snapshot of something that took me quite a while to write, but one thing I would say about Stop Fixing Women, it has started a conversation and that continues and I think a lot of organisations, and I'm grateful for this, have said to me that they've used it to reframe how they approach some of these issues.  So that's, of course, music to this author's ears.  So I'll leave that there.

 

VERITY FIRTH:  Thank you for that, Catherine.  And Heather, you come ‑ you're obviously involved in domestic violence legislation policy in Australia.  Why do you feel it's necessary to bring gender into consideration when legislating?

 

DR HEATHER NANCARROW:  Okay, I'll give you a very concrete example in a moment, but I do also want to acknowledge that I'm on the traditional lands of the Turrbal and people of greater Brisbane, where I'm coming to you from today, and I'd also like to congratulate Ramona on the publication of the book and to thank you for inviting me to contribute a chapter with commentary from Professor Heather Douglas.

 

So back to your question, Verity.  I believe that justice can't be achieved without sensitivity to gender, whether addressing the protective needs of victims of violent crime or the prosecution of alleged perpetrators of such crime.  We know from the ABS periodic Personal Safety Survey that men's experiences of violence is typically perpetrated in or around places of entertainment by other men who are strangers or mere acquaintances but laws of self‑defence, for example, were initially designed to address these kinds of scenarios where a man acted in the heat of a moment with a proportionate response.  However, women's experiences of violence are typically in their own home, perpetrated by men known to them, most often an intimate partner or other family member.  Women defending themselves from ongoing systematic abuse perpetrated by an intimate male partner, however, will often find it too dangerous to act in the heat of the moment and the use of a weapon is necessary to overcome physical disadvantage. 

 

So the way that the self‑defence laws were designed with very much a male perspective embedded in that did not work to protect women or to effectively prosecute perpetrators and so that's a concrete example, but similarly the meaning of aggression, whether physical or not, is often gendered where male domination in relationships is the cultural norm and, let's face it, that's pretty much everywhere, and men typically act with a sense of entitlement to dominate and control while women's actions are more typically in self‑defence or retaliation against domination and control.

 

I would also argue, as Ramona has done in the book and in her introduction today, that an intersectional analysis inclusive of but not limited to gender in the making and implementation of law is also critically important for justice.  As I've argued in my book, unintended consequences of domestic violence law, a lack of an intersectional analysis in the development and implementation of quasi criminal domestic violence laws has caused harm to women, particularly First Nations women. 

 

VERITY FIRTH:  Thank you.  My next question was going to be to Catherine around the issue of fixing the system, not the women.  So you've already raised that issue, but I was thinking in the context of how Ramona opened our discussion today, where she talked about how, you know, it would be fantastic if we could just chuck it all out and start again afresh, but it's probably not realistic. 

 

So what we have to do is continue to chip away and to change incrementally and to have law reform and to constantly be.  So I was thinking about that because your book is about ‑ or the work you do is about fixing the system, not the women, and in the context of Ramona's comments, I wonder whether you could make a comment of your own.

 

CATHERINE FOX:  That's absolutely right and I spent a lot of time, and have indeed spent a lot of time over a long period, trying to look at what were some of the practical interventions and I use that word deliberately because that's what some of the ‑ certainly the CEOs and the people that I interviewed ‑ I was obviously selective, I was actually aiming to get as many leaders as I could and most of them were men that were quoted in the book and that's because most of our CEOs are men.  But some of them who were actually taking some measures, what was apparent to me at the time, but it has become apparent even more so since, is that a number of the men that I interviewed who were in fact looking at how we recruit, how recruitment advertising is written, the language that is used, how women progress or don't progress, the opportunities that are open to them regardless of what they're doing and their retention ‑ many of those men have actually since left those roles and in most cases, I'm generalising a little here, but I think those organisations have not sustained some of the efforts that they made.

 

It also was very apparent to me, and I do think this is continuing, which is good to see, there is more of a culture of data gathering, though, and I would say that's being helped along enormously by the workplace gender equality agency and some of the dynamics that they've set up.  I mean, that's world‑class data gathering and we have a huge body of information that is refreshed and I think that that's fantastic.

 

So I think that there are the micro and the macro and I guess that's a lot of when I was reading the book, Ramona, I was thinking so much about sort of the principles, you know, our original 1984 sex discrimination legislation, but what we're now seeing emerging in different parts of the world, particularly in the area that I look at, so very interesting and I'm sort of skipping ahead, Verity, but very interesting to see that France and Germany and I think France is still in the process of enacting quotas for women. 

 

They already had them on supervisory boards, but now they're looking at management and executive leadership quotas, and so on.  These are becoming quite specific.  And of course in the UK the gender pay gap legislation ‑ law there, where you have to report on a regular basis. 

 

And just finally, the other one that I've found very interesting is the Gender Equality Act in Victoria and I interviewed Dr Niki Vincent, who is the Commissioner there, about that recently.  It covers about 11% of workers in Victoria and has a quite sort of very well set out accountability reporting regime and, yes, she has some sort of ‑ as she said, "I do have some levers", so she has some sort of recourse to penalties, and so on, if people don't comply with that. 

 

So it's very interesting.  So what I think I saw in practice is that organisations could become quite gritty about what they were doing and measuring change instead of just whacking in oh, let's just mentor our high potential women, which I have to tell you I'm not against mentoring but, frankly, if that's all you can do in the face of the appalling gender gap we have in our workplaces, I'd suggest you look at reallocating that money.

 

VERITY FIRTH:  Yes, I think that's spot on and I think it's also ‑ that external accountability that things like those acts actually drive in organisations is very powerful.  Marian, having said that, of course, some policies aiming to reduce gender gaps don't actually have much impact and I suppose I want to explore that a bit with you in your expertise, so why is this the case and what does need to be done differently?

 

PROF. MARIAN BAIRD AO:  Yes, thanks, Verity.  So, look, there are two policies I can think of here and having been given a little bit of a lead by Ramona to comment on parental leave, I'll start with that and in the book that Ramona has edited I have a commentary on law and its impact on women in the area of parental leave and it responds to Anna Chapman's work.

 

I am a believer in the law that you do need the law to make change, but often the law by itself isn't enough, and I suppose that's the first point I'd make, but the law is a really useful baseline in the same way that Catherine's mentioned.  I know many HR managers will say we need that legislation because we can then put that case to senior management as well.

 

Sometimes the law will what I and some colleagues have developed a model ‑ the law can either remedy current inequities in the workforce, it can reenforce inequalities and it can revolutionise the gender relationship and I think if we look at paid parental leave, it almost does all three.  When it was enacted in 2010 in Australia, we didn't have a paid parental leave scheme, so the introduction of it was a huge shift in our public policy platform and it gave many women who had no access to paid parental leave from their employers access to government‑funded leave for 18 weeks.  So I would call that was a revolution in our policy. 

 

But what we have seen over the 10 years in that period is that the people who use it are women and mothers.  Now, on the one hand that's what the legislation was designed for, although it was called parental leave, not maternity leave, but it has almost got stuck in that place in a couple of years later an amendment was introduced, the dad and partner pay, to encourage fathers to participate.  Even though it's paid at the same rate, it goes through the same tests, it isn't ‑ the uptake on that is nowhere near the same as the uptake on the paid parental leave.  So from what we can estimate, about 25% of eligible fathers used that compared to 99% of eligible mothers using the paid parental leave.

 

So there's sort of an example of the law actually revolutionising the system, but then reinforcing it, so how do we remedy that?  Well, we have to start addressing of course what's happening to fathers and that's not just making a legal change, it's also making changes in structures and policies within workplaces.  But in countries that have succeeded, they have said, well, the law will both give you an incentive to use it, so if both parents use it, then both parents get more, and will also ring fence it so if men don't use it, they lose it altogether.  We have one element of that, but we don't have the second element. 

 

So there's a lot that could be done.  Plus there are other elements that would equalise it for women, especially around superannuation and the ability then to increase their overall lifetime earnings.  I won't say any more.  Maybe there will be some discussion.  Thanks.

 

VERITY FIRTH:  Yeah, that's a great example, though, isn't it, and the various ways laws can impact.  Heather, the evolution of how violence against women is dealt with during the law over time, how significant, I suppose, has that evolution been and how successful has it been in the violence against women?

 

DR HEATHER NANCARROW:  Sure.  Look, I mean, when I started working in women's shelters in 1981, that was pretty much the only response to violence against women at the time, or domestic violence specifically, and that was followed by in the early to mid‑1980s a succession of taskforce investigations in the various jurisdictions around Australia and they all advocated for the introduction of law and there was extensive debate about whether it should be criminal or civil law and so Australian jurisdictions settled on quasi criminal law, so a law that was custom made to address, although written in gender‑neutral terms ‑ was specifically designed to address violence against women and particularly violence or abuse or, you know, what we now call coercive control, but then we referred to as power and control, but it was certainly designed to address power and control in intimate partner relationships and because ‑ and why we have these quasi criminal law, which gave police and courts very unusual powers in a civil law jurisdiction, such as police being able to detain a person without arrest for several hours while they proceeded with a protection order application, for example, it was justified on the basis that these were exceptional circumstances and that in order to overcome the power and control of the perpetrator, the state needed to intervene in order to protect a woman who didn't have access to power and resources to be able to take action under, for example, the Peace and Good Behaviour Act in Queensland at the time. 

 

So we authorised state power over women's lives so they didn't need the consent of the victim for police to make an application and proceed to the court for the court to make an application.  They didn't need the consent of the victim to do that and that was all justified on the basis of the power and control in the relationship.

 

However, over time we've seen ‑ well, there was ‑ I think I should explain also that there was extensive opposition to that from civil libertarians of the day.  So it was law played a very key central role and arguably it was a centrepiece of strategies to end violence against women over the last 40 years and perhaps still is the centrepiece, although increasingly there has been attention to other policy areas and systems‑wide responses which I think is really critically important. 

 

There's also been extensive law reform in other areas of law, not only in terms of domestic violence law specifically, but also in immigration law, family law and criminal law to try to get the law to work better for women seeking justice and protection from violence for themselves and their children. 

 

So law has played a very central part of the response to violence against women and in fact it's only since the introduction of the National Plan to Reduce Violence against Women and their Children nearly 12 years ago that we saw a coordinated and concerted effort by governments to address the structural inequality that enables violence against women.  The national plan set up the infrastructure for this through the establishment of Our Watch to lead primary prevention nationally and of course it established ANROWS to lead the development and mobilisation of the evidence to support policy and practice decision making.  So we certainly have seen an evolution over the past 40 years and a more nuanced and sophisticated response, but I think there's still a long way to go.  So while there's been evolution, perhaps we need a revolution.

 

VERITY FIRTH:  That's really interesting.  I never quite realised how fundamental law reform was in the fight against domestic violence.  It's really interesting. 

 

I'm now just going to talk a little bit ‑ I'm going to come to you, Ramona, because you are the star of the day and you've been silent, which is fine, because our other panellists are so brilliant, but I am going to come to you, Ramona, because just briefly, before we move to audience questions, should we be looking more at how legislators are tackling these issues internationally and is there a role that Australian domestic legislation can play in the international arena?

 

DR RAMONA VIJEYARASA:  They're both really great questions, Verity.  So should we be looking internationally?  I suppose as an international comparative women's rights lawyer I'm always looking outside of our borders for good practice.  I think there's very much a lot to learn from looking at legislators abroad. 

 

If I can, I'll refer to a conversation I had with the former President of the Philippines, Gloria Macapagal Arroyo, as part of my current work on women Presidents because it hits this point and we were talking about gender‑responsive legislation and the former President referred to her time in the Philippines Senate and said we legislators don't need to reinvent the wheel.  Everything has been researched for us.  We just need the wheel to implement it, and she surprised me because she then went on to refer to good practice legislation from a gender perspective in Iceland, but also Rwanda and Bangladesh. 

 

So I suppose what that conversation really told me is we don't always need to look to the usual players who do have a lot to offer, New Zealand certainly rising in the ranks, but it may be looking to which countries are legislating particularly well when it comes to particular areas of legislation, and Catherine has already mentioned some of the new gender equality quotas coming out of Germany and France.

 

In terms of does Australia have a part to play, I think the natural answer to that, given the current climate, is to say no, we're not exactly a beacon of light at the moment and many would follow Australia's rankings in the global indices, such as the World Economic Forum's Global Gender Gap Index, which aggregates a whole host of gender indicators to rank and score countries on gender equality.  Australia ranked 50th this year after a decline from 15th in 2006 and just in comparative terms, New Zealand is in the top 5, which I think is a really shocking reflection given the wealth in this country as one of the wealthiest OECD nations, in the top 10.

 

Having said that, I do think we have good practice legislation to offer as a nation and Catherine has very rightly referred to the Workplace Gender Equality Act.  It scored very highly in the Gender Legislative Indexes that I created here at UTS because it offers the indicators for employers to deliver more in the workplaces in terms of gender equality, it really offers a lot to enhance accountability.

 

But if I can, I think it's really worth reminding ourselves that Australia was a much bigger player when it came to human rights and gender equality at one point.  We were really big actors in the United Nations when their Universal Declaration on Human Rights was being drafted.  Elizabeth Evatt, who gracefully wrote the foreword for the book, was not only Australia's first Chief Justice of the Family Court, but sat on the committee that oversees the Convention on the Elimination of All Forms of Discrimination against Women and chaired the committee at the end of the 1980s, the first ever woman to sit on the seat, second Natasha Stott Despoja just appointed. 

 

If we look to the 1980s, Australia was a real leader when it came to women's budget statements, really debunked the myth of gender neutral budgets and created much greater accountability for governments to honestly say what they were doing differentially for men and women and I think that goes to a lot of questions around implementation, we obviously need the budget to back it.  Certainly we have something to offer as a nation, but we at one point have the political will and tools to really be a leader in the space.

 

VERITY FIRTH:  Is there any other you want to add something around how legislations are tackling these issues internationally?

 

DR HEATHER NANCARROW:  Perhaps just quickly, I agree with Ramona that we've often looked to a select few jurisdictions in the case of domestic violence law, we've looked at the US and the UK and particularly at the moment we are drawing on the experience of the UK in debating the introduction of an offence of coercive control here in Australia and I think it's really important that we can learn from internationally and we should be looking more broadly, I think, for good practice and perhaps in the global south as well as the global north. 

 

But I do think also that we must design laws and implement laws, provide the frameworks for implementation that are informed by our local context, recognising that we're on unceded Aboriginal land wherever we are here and that there is a different relationship between First Nations communities and the state and that has an impact on the way that the law is seen and is implemented, seen by those communities.  So I think it's really important that we do understand local context and Aboriginal and Torres Strait Islander women have a lot to say about this currently in terms of coercive control laws and we really need to ensure that they are included in the decision making around it.

 

VERITY FIRTH:  Yes, that's exactly right.  Marian?

 

PROF. MARIAN BAIRD AO:  Yeah, I wanted to say very quickly on parental leave, we certainly look to international comparisons and ideas, but this picks up on something Ramona said.  It really is also the political environment that you're working in and in Australia, certainly for the last decade at least, it's quite hard to use those international arguments to make change because we're sort of we'll do it our own way, thank you very much, we don't need to listen to other people. 

 

So advocates, people have to really pick and choose I think the time and the examples that they use and what's pervasive at the moment across a lot of policy making is what economic benefit will that change in law bring, what economic benefit can women bring to the country, and I think we have to be very careful about those arguments and really look at them very critically because it concerns me that we make these political changes only because it's seen to increase our GDP, which we know is such a blunt measure of progress and performance. 

 

So I just would put a caution out about how we use international examples and even the international language, with all due respect to the World Bank, OECD, even UN, it's all about GDP at the moment and women's economic participation and I think that overlooks a lot of other things and really has potentially serious ramifications in the social and domestic spheres.

 

VERITY FIRTH:  And Catherine, do you have anything to add?

 

CATHERINE FOX:  I'd just absolutely to Marian's comments there, I think one of the things that's become again ‑ become much more apparent to me, even quite recently, is that for many years in the business community, you had to argue a business case, so there was this idea, again sort of similar to what Marian was just speaking about, that there had to be not just that women were contributing ‑ well, duh ‑ but also there was a bottom line increase almost, this ridiculous if we promote women, we're going to have better bottom line results. 

 

Actually, the Workplace Gender Equality Agency did some research about a year ago with Curtin University and found there was actually a direct connection between more diversity in senior ranks and at CEO level and a number of financial bottom line indicators.  So actually, yes, but why?  Why do women, half the population, have to prove something that the other half doesn't? 

 

It just ‑ I think it sent us in fact down a cul‑de‑sac that has been unfortunate and I think the whole notion now that we should be talking about it's clearly fairness and improvement in the lives of women and girls.  I think it's almost time to go back to some very basic principles. 

 

But I would also just quickly add on international comparisons, again, the business community I think on the whole often react quite badly to things like the Norwegian quotas for women on boards and so even though they did their job, and so on, I mentioned France and Germany, I think there's a real resistance to that.  It's like oh, well, okay for those Scandinavians and the French, but no, we forge our own way.  So I think that can be unfortunately in a way counterproductive, yes.

 

VERITY FIRTH:  Yes, nothing like Australian parochialism.

 

CATHERINE FOX:  Alive and kicking.

 

VERITY FIRTH:  Alive and kicking and well.  Speaking of Australian parochialism, the first question, the most popular question in our Q&A is from Samantha and she's talking about how she's been watching the Ms Represented series on the ABC and says it's been quite the eye opener, showcasing how, for example, recently ‑ work rights for women and sections of abortion law were won only recently, like in the late 20th century.  "My question is the male‑centric gender bias in law making, does this stem actually from the culture in Canberra or is it deeper, broader than that ‑ for example, is the law based on colonial British law and doesn't need updating or a combination?"  But it's an interesting question.  Is it something that is coming from Canberra itself or is it broader than that?  Maybe, Ramona, you have first go at this.

 

DR RAMONA VIJEYARASA:  It's a great question and I've also been fascinated by Ms Represented.  I think Annabel Crabb has done a real service to all of us in putting together the documentary. 

 

I think there's a lot to be said about who ‑ the power of legislators and the lack of diversity in Canberra because, you know, it's not just a question of are there enough women in Canberra legislating, but it's also a diversity of women who bring that expertise and experience to legislation and it's a real ‑ if there's not enough women and not enough diversity of women, we're not going to see that in our legislation and for the women there fighting, it's a much bigger battle.  I think that really comes through in Ms Represented.  What you see, which really surprised me, was how much women's rights are traded away, how the backdoor negotiations mean a piece of legislation that is essentially about women's control over their bodies or women's lives will be traded away for another piece of legislation that someone else wants passed through parliament.  And so I think very much a lot of this is centred around the power brokers in Canberra.

 

VERITY FIRTH:  Mmm, interesting.  Does anyone else want to comment on the Canberra culture and its possible influence?

 

PROF. MARIAN BAIRD AO:  I want to say something a little controversial.  Just because there are women in parliament doesn't mean you're going to get good laws for women.  You have to look at a few historical examples to know that.  So we have to be careful to think that changing the gender of people in Canberra or New South Wales or Victoria or Queensland is going to change everything.  You've got to have a lot of other advocacy and support and all sorts of other things going on I feel. 

 

It's true, historically we have that colonial background, we do have a legal system set on that.  It was based around men.  So we are dealing with that, which goes to Ramona's opening statements really.  We can't actually throw the whole lot out, but we can certainly attempt to make changes and there is a lot of tradeoffs that go on, it's quite true, and disappointing.  It doesn't just happen in parliament.  It happens in bargaining with unions, it happens in workplace policies around boardroom tables, it happens everywhere.

 

DR RAMONA VIJEYARASA:  Can I come back to that point, it is controversial and love you made it.  My current work is on the women Presidents and difference Presidents make on the lives of fellow women and the starting point is to say just because you have a woman President doesn't mean you're going to see better legislative outcomes in the lives of women, but you see a different type of leadership model. 

 

If we refer specifically to Canberra, I suppose what I really liked about what Ms Represented showed is it illustrated if we actually got to 5050 and had parity, it's not necessarily that there would be more women putting legislation on the table, but will be a different type of political climate in which those women who do want to put forward women‑friendly legislation have a different environment to contest, where if they're putting ideas on the table, they're not swept away for other reasons.  Whatever it is they want to see legislated, if it's a good idea, it's not going to be taken by a man to be claimed as their own.  So I think it's about assuming that more women‑friendly legislation will be passed but about cultural ... we achieve parity.

 

VERITY FIRTH:  Catherine, you were champing at the bit.

 

CATHERINE FOX:  I was.  I wanted to add to ‑ well, both of those comments.  I think the gap between Canberra and the culture in Canberra, the numbers of women but also clearly the climate that produced the appalling things we heard about earlier in the year ‑ I think that the gap between that and the business world is not quite as wide so maybe that's also slightly controversial.  I rarely agree with the Prime Minister on these matters, but when he said actually this happens in a lot of workplaces, I think it's been particularly poor in parliamentary and ministerial offices and I don't think there's any disagreement on that from many people. 

 

Pru Goward's research into the New South Wales Parliament I thought nailed it.  I think there are particular dynamics about that and what happens with staffers and how they're appointed, and so on.  We only have to look at the event at AMP, for example, last year and many workplace cultures and the power structures which have remained ‑ we have just a mere handful of women running ASX 200 companies.  That's barely changed.  Yes, it's improved on boards, but we've struggled to get up to a third and that's just on ASX 200.  Get beyond that and it plummets. 

 

So, look, it hasn't really changed dramatically and I think the lack of avenues for women to complain, for example, around workplace sexual harassment, to be heard properly and to have their complaints properly followed through without facing severe penalties, including losing their job, unfortunately I wish we'd come a lot further.  So I think the gulf, there is a gulf between them, but I don't think it's nearly as wide as it's perhaps been made out to be. 

 

And the other thing I'd just say on that, how interesting the sort of deafening silence from many of our corporate leaders over this period, very, very few, dare I say even some of them who are champions of change who have spoken up about some of the workplace dynamics that clearly do exist in other kinds of organisations and not just in parliament.

 

VERITY FIRTH:  Really interesting.  Now, I'm mindful of time and I do want to get to a few other audience questions and I particularly want to get to a question from Cathy Walker because we had some questions before the panel about this as well.  I'm going to give this to you, Heather, in the first instance.  So Cathy Walker is asking about the coercive control laws and she's talking about how there is such a pushback from First Nations women.  Some are actually campaigning against this new focus as it may cause further harm to Aboriginal women.  How do we ensure their concerns are heard and at the forefront of changing law, whilst recognising there is coercion in violence and abuse?

 

DR HEATHER NANCARROW:  Well, I think we need to take every opportunity that we have to invite them into the conversation if we've got, you know, opportunity to do that.  But importantly, I think it's also about listening to what ‑ Aboriginal women are using various platforms to get that message out there and we need to engage with that and understand that perspective and support where we can, you know, the development or the process, wherever it lands. 

 

Inevitably there will be coercive control, an offence of coercive control in Australia, but I think we're beyond the point of debating whether we should or shouldn't have it.  I think a number of jurisdictions have committed ‑ essentially committed to an offence of coercive control, but we really do need to hear, listen and work with Aboriginal and Torres Strait Islander women so that we don't have the unintended consequences that they fear and that we must learn from the past. 

 

We've got a body of evidence from our experience with law, the quasi criminal law for domestic violence that we've had for more than 30 years where we've got numerous research reports have identified the unintended consequences, misidentification of women as perpetrators under those laws and this is what Aboriginal and Torres Strait Islander women fear will be repeated in a more direct route to criminalisation. 

 

So absolutely, we need to be hearing, giving opportunities for those voices to take centre stage and to really understand the perspective and support their advocacy to ensure that there's no harm done to First Nations women in our efforts to create laws to protect women.

 

VERITY FIRTH:  Mmm.  Now, I'm going to again ‑ I'm mindful of time.  The top‑voted question from Becky is she asks:  "As feminists, we know that one of the key problems with legislation is not the law itself, but poor implementation enhanced by our patriarchal culture.  So what do we need to do when making laws intended to eliminate gender‑based harm to better ensure implementation as intended?"  Ramona, do you want a first stab at that one?

 

DR RAMONA VIJEYARASA:  Yes, and Becky co‑authored a chapter with me, so conversations about this.  I think it's not something that we don't already know, but our first point is to be getting that law right.  There's no point implementing legislation that has inbuilt discrimination and weaknesses, but once we get the law right on the books, implementation has to be about the funds to back the law and the tools to monitor it and that monitoring has to be built into the legislation. 

 

As part of the work on the Gender Legislative Index I've combed through a lot of laws from the global south, so I'm so glad Heather mentioned that because a lot of those laws build in monitoring mechanisms into the legislation, which is not natural practice in a lot of Australia's laws.  We assume that will happen in another policy document, but other countries in their jurisdictions, they include in their legislation these monitoring tools, whether it's monitoring bodies or periods of time in which to monitor the implementation of a law.  If we're not monitoring a law, we cannot assume it's being effectively implemented particularly because these gender biases ebb and flow throughout all of our systems.  So to me that's really pivotal.

 

VERITY FIRTH:  Does anyone else want to talk about implementation?

 

PROF. MARIAN BAIRD AO:  I'd love to if I can just very quickly.  The implementation and evaluation aspect is so critical and the Paid Parental Leave Act, that's another area where it was novel.  It included an evaluation in and money for it in the act, so that was really useful. 

 

But I do want to say ‑ Catherine might be able to back me up again, I hope ‑ it's not just culture.  To me the word culture is used as a catch‑all phrase and really what happens in implementation is where does the power lie in an organisation to ensure that the law is addressed, is implemented, and is monitored?  And that's not necessarily a cultural thing, that is has someone got responsibility for it and do they have to do it?  I do think in all organisational implementation programs we have to look at structures and culture together and how they interact.

 

VERITY FIRTH:  Mmm.  We're almost ‑ in fact, we're at time, so it's going to have to end on Marian's excellent point about implementation and evaluation. 

 

I want to thank all of our panellists today.  That was such a great discussion.  You're all so articulate and clever.  I just found that extremely interesting and I hope our audience did too. 

 

Congratulations again, Ramona, for your excellent book.  Just reminding people that there is a little ‑ everyone is clapping.  There is a little link in the chat, so you can go purchase it straightaway, but just congratulations to all of you for your contributions to the book and also to the panel today.  Thanks again. 

 

The recording will be available, so if you registered for this event, you can now look at it again because we will send a recording to you and you can spread it around your networks too.  Thank you again, everyone.  Stay safe if you're in lockdown.  Continue to stay safe even if you're not in lockdown and we'll see you all at the next webinar.  Thank you.