Public International Law Specialist
Sexual harassment in the workplace— there have been progressions and there have been setbacks. Since when did Australia drop in terms of Gender Gap ranking? Is there anything that can be done to improve how women of all working levels can be given better treatment?
With her views about the #MeToo movement, Australia's worsening Gender Gap and her plans for improving fundamental rights, Gillian gives us a detailed discussion on issues concerning gender inequality within the wide workforce along with actions we can take to reach our career goals.
The #MeToo movement has been monumental in sparking conversation around sexual harassment in the workplace, however we’ve also seen some adverse consequences. U.S Vice President Mike Pence said he doesn’t dine with women alone, and as reported by Bloomberg, it’s a sentiment that echoes among many senior male executives. Then we have women smashing through the glass ceiling, but faced with the glass cliff. It’s almost as if for every step forward, we take two backwards. Do you agree? Or would you say this is a rather pessimistic view?
I’m basically optimistic about the impact that the #MeToo campaign has had because it’s raised the matter for public discussion; that is probably the most important aspect of the #MeToo campaign as it’s developed. But the negatives are that, as a lawyer, I have some misgivings about public accusations against people that are not proven, that damage someone’s reputation in a way that gives them almost no recourse. A surprising number of people against whom allegations have been made, particularly in the media industry, have pretty much accepted that the allegations are true and apologised. But some have not. And others have denied the allegations and their reputations have been sullied. This is not, in my view, an appropriate way to resolve harassment issues.
My other concern is that we’ve seen the use of defamation laws as a way of striking back against the women who have made these allegations. The Rush case, for example, is one where the woman never wanted to make the allegation in public, was forced into giving evidence in a trial, evidence that has been rejected by the judge, damaging her reputation. So it’s become extremely complex. I don’t think this is the way to resolve such issues.
The other aspect of it that I would like to explore a little bit further is that the women who have come out in the #MeToo campaign tend to be women who are quite strong. They’re media personalities, they’re [from] TV, film... And they’re in a relatively strong educated and powerful position. What I’m disappointed by is that the harassment at their level is much more easily managed. They are young. They’re articulate. They’re relatively powerful. But the overwhelming majority of women—on the factory floor, cleaning in hospitals, in the hospitality industry, in low-pay jobs across the world—have no voice at all. And these rather glamorous, beautiful actresses, wonderful though they are, are speaking up for themselves and their industry. But they’re not speaking up for the women who are actually truly powerless. I have recently reported to the United Nations on abuse of office, bullying, and harassment, including sexual harassment, within UNAIDS. That was an interesting experience because [it’s] the first time the United Nations has allowed an independent panel to investigate internal allegations. In other words, there were no restriction on our report. My point is that there are millions of women in Africa and Latin America who have no voice and [who] are absolutely powerless to do anything about sexual harassment.
A final observation is that sexual harassment is usually at the very end of the spectrum. High levels of abuse of office, bullying and general harassment exist before you get to sexual harassment. In other words, these abusive practices are linked across organisations. And with poor leadership, you tend to get abuse of office, general bullying and varying levels of sexual harassment. I think that there’s a lot of work that needs to be done for those at the bottom of the pyramid for those women who have almost no capacity to speak up. The very idea of these women doing so in the media is ludicrous. And the reality is they would never be able, for example, to use the law, that they would have no access for practical purposes to the law to challenge abuse. That’s a very long answer to your question, but I think the #MeToo campaign is troublesome.
Australia was ranked 39th in the 2018 Global Gender Gap Report, dropping down four spots since 2017. In fact, we’ve been dropping lower down the list every year, except one! What steps should Australia be taking to improve gender equality, particularly when we look at how our neighbour New Zealand has managed to jump up to 7th place?
Exactly. We’re 39th at the moment, we dropped to 46th a couple of years ago, but in 2006 we were 15th. While we’ve come from being in the international company that we would expect to be, in the top 10 or the top 20. Now we’re in the late 30s, 40s. There has been a decline from the Howard era onwards. What we do about it? Inevitably there are no simple answers. One of the most critical preconditions for change is political leadership along with leadership within the community that speaks up for equality. That leadership has been lacking. We’ve had absolutely appalling male-dominated leadership under a Coalition government, with very few women in powerful positions. The denigration of women, subliminally or explicitly, has been troubling. Without senior leadership, it’s almost impossible to move forward. Of course, without that leadership, we’ve actually significantly regressed globally.
Courts should be given greater powers in relation to enforce rights to equality. Part of my argument is that we’re the only western democracy and the only common law country in the world without a Charter of Rights. The Sex Discrimination Act is important, but it doesn’t have the overarching role that a Charter would have, in dealing with domestic violence, homelessness for women and pay equality. The Act prohibits discrimination but fails to judges the powers that we need to respond to contemporary social justice needs. We should assiduously pursue the pay equality. I think the underlying causes of inequality are of concern for women; women are in casual, flexible, part-time employment, if they’re employed at all. Women retire at 46% of male superannuation. And the fastest growing group of homelessness in Australia is women over 55. When you put all this together you can see that the seduction of women into flexible, part-time, casual work has actually been a huge disadvantage. All my professional life I've argued against women accepting those positions. They should insist that they get the 38 hour-week and insist on working and getting a full-time salary and full-time superannuation. I think we need to fight for superannuation for those women that are on part-time work or caring positions, and we should fight for women to be paid for all the unpaid caring work that they do. The issue of adequate and affordable childcare remains a core one for women. It was important to my generation—the 60s—and it’s still important today. Mr Abbott’s “rolled gold” six-month parental leave program was a failure, partly because of the denigration of women as double-dippers by the Coalition and the Treasurer at that time.
There are many things women must fight for; there are two things that I’d emphasise. One is improved political leadership that supports genuine equality, for women. The other is [that] women have to be much stronger in working together. We’re too factionalised, too siloed in our groups; we’re not acting across the nation. We don’t have a Ruth Bader Ginsburg who stands up for women across Australia. We need that kind of leadership among women. And we've got to work a lot harder for it. Perhaps we should be more angry, more ‘out there’. I’ve used the phrase that women should be ‘less measured and more vulgar’. We should be much more demanding, even assertive in demanding our legal rights. We’ve put up with as regressive and secondary position for too long. We’ve been too measured, too polite, too hard-working, too passive. We must develop new strategies, on the maxim that, if you keep doing the same thing, don’t be surprised if you get the same result.
In your tenure as President of the Human Rights Commission and even now, you’ve been an advocate for adopting an Australian Bill of Rights. Could you tell us more about your work on this – why do you think there is such a strong need for a Bill of Rights and, more specifically, what impact would this have on women?
As the President of the Commission, I was involved in asylum seekers and refugees, and racial discrimination in Australia. We do not have the legal tools to deal with these questions, or with homelessness, adequate pay and standard of living. As I’ve mentioned before we have no Charter at the federal level, we have very few constitutionally protected rights and many of the international human rights treaties that Australia has ratified have not been given domestic implementation. For example, with the inquiry I initiated on the detention of children indefinitely in offshore and mainland detention centres, is contrary to the Convention on the Rights of the Child. But if I were to say this to the Minister, now Prime Minister, and Mr Dutton or to the Federal or High Courts, the answer’s the same: The Convention on the Rights of the Child has not been given legislative implementation in Australian law, and therefore it’s not binding on the government. Now that’s just one example, but there are many others. If we had a Charter of Rights, we would be able to challenge disproportionate counter-terrorism laws, the invasion of privacy, de-encryption laws, data retention laws, the arrest of citizens on the streets without cause (on the technical ground of national security). So I think we need a Charter. That’s answer number 1.
Answer number 2—how would it improve the position of women? Well I think that what we would need in the Charter is a recognition of economic and social rights, particularly the right to adequate housing, and to payment for work done on a fair basis. I think those would be provisions that you would include in a Charter, and they would give the courts more power to insist that the government comply with those fundamental rights.
You also wrote a memoir – Speaking Up– after your tenure with the Human Rights Commission. What inspired you to write about your experiences?
Well, that’s an important question, for me at least, and that is that I’d written probably ten books before that, but they’d always been technical legal books. I’ve got a major textbook on international law, and I’d written on all sorts of subjects in journals and Cambridge University Press articles, and all the major international law publishers over the years, as any academic lawyer would, and of course it reflected in part my commercial legal practice with a major law firm and my international commercial work. I did all the technical legal work. But those books sit on library shelves gathering dust and they don’t have very much impact.
When I finished at the Commission, I felt that I now had so much experience in the practical implementation of international law, human rights in particular, that I needed to write about those experiences. I’d never ever written anything that described my own emotional or personal responses to something. That was not something you’d ever do as a professional lawyer. But this time my publisher [Louise Adler, Melbourne University Publishing] said, ‘If you want to get these important issues out into the public arena, you’re going to have to write differently from the academic, measured, careful, footnoted, scholarly work.’ And so that was the challenge for this book, and I’m pleased to say that I think about ten thousand copies have been sold, it’s done quite well.
Is there a female role model that has inspired you throughout your career?
There were very few when I was younger. But I’d say that the person whose courage and style have inspired me is Rosalyn Higgins, whom most Australians will never have heard of. She’s a London-based international lawyer who became the first woman President of the International Court of Justice. And she did what I have been doing, and that is that she had a professorial position at the London School of Economics. She was also one of the leading international commercial barristers in the world, and on joining the [ICJ] and was elected its President by that court—14 other male judges. I’ve found her work, the precision of her thinking, her compassion and her knowledge of international law as an inspiration. If I had a model it was Rosalyn Higgins.
What’s one piece of advice you would give to young women who aspire to one day make their way up to the C-suite or land those top jobs in politics?
I think life is about building blocks, and I’ve always felt that one should take every opportunity offered. I sometimes find young women are a little cautious, and they weigh up this against that; they think it through but overthink it and become over cautious. It is important to take every opportunity and learn. Even if such opportunities don’t necessarily take you to your ultimate destination in a straight line, the experiences are always helpful—you never regret any of them, really. So I think carpe diem, seize the day.
But I also think women have to accept, and they do mostly, that they have to work very hard. They have to work hard to get what they’re doing right. But when they’ve done it, when they’re certain of the law and they’re certain of the facts. Then a woman should go forward with courage—always courteously—but go forward courageously, knowing that she has done her homework and believes in what she is talking about. A word that’s being used a lot these days is ‘authenticity’. If you are honourable and honest, people will trust you and give you a chance. While there are so many opportunities now, it remains a cripplingly competitive environment for women. They just have to take the world as it is and find their way through it, while being prepared to do the hard work.
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