Professor Gillian Triggs is President of the Australian Human Rights Commission.
She delivered this address as part of the CEDA Leadership series in Brisbane.
Professor Gillian Triggs speech on Women in Leadership
It is a very great honour for me to have been invited by the Committee (for Economic Development of Australia) to speak to you today to discuss an area that doesn’t directly have anything to do with economic development, but which I think indirectly ensures economic development, and that is of course, human rights.
It is wonderful to be here with so many friends and colleagues, and to be in this marvellous city of Brisbane. Before I came here I visited the Anti- Discrimination Commission here in Brisbane, and I was very interested to learn that Queensland has really been the leader in developing domestic human rights law here in Australia. It was really setting the standard for best practice for more than a decade until Tasmania took over, and is now the leading state in terms of developing law. That’s one area I do want to talk about.
But before we do, I thought we might re ect just a little on the life of Baroness Thatcher, whose state funeral has just been held in London. We’re prompted then to consider the role of women in leadership in public life in the 21st century.
Margaret Thatcher was well known for her pithy aphorisms. She’s renowned for comments such as: “If you want something said, ask a man; if you want something done, ask a woman.”
She polarised responses on political issues, philosophies and economic poli- cies, but never because she was a woman. She was never a victim and she never considered herself one. When asked what it was like to be a woman Prime Minister she famously remarked that she had no idea because she’d never been a man.
Love her or hate her, Margaret Thatcher appeared to be supremely con dent and in control with no self-doubts, anxieties or complexities about being one of the most powerful political leaders of the 20th century.
What can we learn from her life and leadership? Some of you will be think- ing that perhaps Baroness Thatcher was actually a poor role model in that a life lived without self-re ection or doubt is not a life worth living. I’d suggest that leadership for its own sake is not the point. Rather, we should make the right decisions, legally, morally and ethically, with humane consideration for the effects on others.
Coming up on the plane today was really a rather depressing exercise. Reading the newspapers, item after another demonstrated a point that my colleague, Sex Discrimination Commissioner Elizabeth Broderick, is well aware of. That is that we have made glacial progress in advancing women on boards or in senior management.
The seventh annual World Economic Forum Global Gender Gap Report puts Australia as having slipped 10 places, from 15 in 2006 to 25 in 2012. The reasons for this ranking are due to lack of wage equality and political empow- erment. Based on these gures, we seem at least to have plateaued.
I’m not going to spend time on these statistics or gures because I think you know it all extremely well. However, what I would like to do is explore what all this means in the context of human rights law and how somebody like me, who’s been very honoured to be appointed to the position I have, is trying to use that leadership to achieve the outcomes that I think are important.
I have of course looked to some of these innumerable self-help books that are on the market at the moment. There is enormous interest in buying books that tell women how to become leaders. In preparing for this speech, I did a quick Google search on this very issue. A quick check on the internet just in the last few days shows a number of them, one a very important essay by Anne-Marie Slaughter, Dean of Public Administration and Law at Yale, who states that women can’t have it all.
But in today’s (Australian) Financial Review, there’s (Dr) Lisa O’Brien saying “yes, you can have it all but not all at once”. Then we have these books about how remarkable women lead, and one that is very much my favourite, Nice Girls Don’t Get the Corner Of ce by (Dr) Lois Frankel.1 You might be inter- ested in the fact that I do have the corner of ce. You can draw your own conclusions.
But a book that has created something of a furore is a book by Sheryl Sandberg called Lean In: Women, Work, and the Will to Lead.2 She, for those of you who don’t know, is the CEO of Facebook. She’s listed as one of the 50 most powerful business women in the world, and her central thesis is that women should be more willing to sit at the table, take risks and take responsibilities. In short, women should get out more, be engaged and stop complaining.
I actually nd these books rather depressing because they don’t ever seem to re ect in any way at all my life or my professional career. But I do have one experience that I thought I might very brie y share with you. It does relate to Sandberg’s argument that women should grab for leadership roles even if we’re only 60 per cent certain that we have the credentials for that step because, after all, that’s what men do.
There are a lot of these sorts of glib, quick, snappy phrases in books that we can pick up for $20 in the airport. However, recently I have had an experi- ence that absolutely con rms what she says. Last year I was on the selection committee for the New South Wales Bar Association’s proposals for the Chief Justice for the appointment of barristers to take silk.
In an unprecedented year (2012), of the 26 who were ultimately selected by the Chief Justice, 12 were women. In the past, only one or two in any one year would ever be given silk.
I found the process absolutely fascinating because the majority of those successful women were selected almost immediately with relative ease. The reason for this was that it was abundantly clear that they were of a suf cient seniority and experience, they were well regarded by their peers and judges, and it was clear that they were well and truly ready for the step up to silk. Indeed it’s probable that some of those women would have been appointed earlier had they taken the step of applying sooner.
By contrast, and strong contrast, many of the men who applied were disap- pointing in their application because they were years too early.
So I drew the conclusion from this experience that, yes, women are not as willing to put themselves forward as men. Men are willing to take the risk of failing, they’re willing to try again and they’re willing to change rulings that aren’t in their favour.
I do feel very strongly that you’ve got to step up, you’ve got to take the chance, you’ve got to take risks and you’ve got to make mistakes. And I thought if I may prevail on you just for a few minutes to talk a little bit about my pathway here, then I will move on to my primary topic, that is, to talk about the work of the Australian Human Rights Commission. I’ll talk a little bit about how I’ve perceived the last nine months in trying to promote human rights in an election year.
Interestingly, one of the things that Sheryl Sandberg most particularly criticises
women for is that, when asked about how they got a leadership position and
why they are where they are, women often say, “oh, well I’ve been incredibly lucky”.
I’ve been saying that for the last 40 years and it is actually true. I was a boat person. I came to Australia as a £10 Pommy migrant in 1958 through the Suez Canal. I saw the Suez Canal in those months after the invasion of the canal, after it was nationalised by (Gamal Abdel) Nasser, invaded by France and the United Kingdom (UK).
While I was taken kicking and screaming out of the UK to migrate to Australia, the journey through the Suez Canal, through Ceylon as it then was, Fremantle and to Melbourne was an eye-opener. It was then that I realised there was a big world out there and that somewhere there was a place for me in it.
I found that place when I went to law school in Melbourne. In those days, in the early 60s, you did law. It was straight law; I didn’t do a combined degree. So at age 18 I was sitting in lecture theatres and admitted as a barrister and solicitor at 21. I hadn’t the slightest idea what I was doing.
In my last year of law I did international law. I wandered into the lectures of a man called Doc Bleiter who was a Polish Jew who’d come to Australia in 1938. He talked about the Covenant of the League of Nations. He’d been involved in drafting that covenant at the end of the World War I, the war to end all wars. He took us through the drafting of the covenant, he then talked about how the tanks rolled in from Italy into Abyssinia, or Ethiopia as it now is, and everybody knew in 1936 that World War II was coming. He also talked about the failure of the rule of law, about the failure of the covenant. Tears came down his cheeks, and I thought, “this is the subject for me, international law”.
At that time, studying international law was only something you did if you were rather frivolous, as I de nitely was at that time. I queered my copybook very badly by being Miss University. Nobody of course took me remotely seriously, so it has taken me 44 years to get back up there again.
But I have been lucky, and the subject grew around me, an academic back- ground, a practice with Mallesons Stephen Jaques helping to establish their of ces in Singapore and Jakarta, but mainly working in the commercial area in offshore oil and gas.
I had my rst opportunity at leadership when I was asked to be the Director of the British Institute for International Law. That’s when for the rst time I had my own budget. I really believe in the importance of the nancial ability for women to lead, and one of my favourite pieces of literature is Virginia Woolf’s A Room of One’s Own. You have to have those strengths and capacities, and the role with the British Institute for International Law provided me with experience and opportunities around decision-making, building a budget, building a team around it and starting to achieve your objectives. I was also able to do that as Dean at Sydney Law School and now with the Human Rights Commission.
Let’s perhaps talk a little bit about the Commission. I’ve learnt a lot in the last nine months. What I have come to realise is that we are really in a very odd twilight zone in Australia with regards to human rights law. The reality is that Australia has been a global leader punching well above its weight throughout the world in negotiating the major treaties to which we’re party: International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child; Convention against Torture; Convention to Eliminate All Forms of Discrimination Against Women; right up to the more recent times with the Rome Statute of the International Criminal Court.
The odd thing is that we have not implemented those treaty obligations in our domestic law, with three exceptions: race discrimination, sex discrimination and disability discrimination. These are some of the domestic legislation provi- sions that provide the underlying base for our work.
At the Commission, we have six commissioners:
- Elizabeth Broderick, I know you are familiar with as the Sex Discrimination Commissioner;
- Disability discrimination is Graeme Innes;
- Age discrimination we have Susan Ryan – the rst woman to be appointed to a Labor Cabinet and a marvellous woman to work with;
- Mick Gooda from Rockhampton in fact, who is our Aboriginal and Torres Strait Islanders Commissioner;
- Australia’s rst National Children’s Commissioner, Megan Mitchell, was appointed in February 2013; and
- Currently, I am also the Acting Race Discrimination Commissioner.
We have a very major function in complaints handling, and we handle about
17,000 inquiries and complaints a year, 19 per cent of which are sex discrimi-
nation, and most of those are in employment. So if you wanted to distil what
we do in relation to sex, almost invariably employment discrimination. I think
it’s a very important function of the Commission because it provides access to
justice for people who otherwise would not be using the courts, or if they were
to go to court it would completely ood the courts. We do manage to concili-
ate more than half of the matters that we consider.
As President, I consider a broad range of issues in relation to human rights and fundamental freedoms in Australia. I do spend a great deal of my time on issues related to asylum seekers and immigration detention. I also intervene on behalf of the Commission in court cases and engage in public advocacy.
I’ve particularly enjoyed the opportunity to work at a national level. I thought I had a fairly big role when I was Dean of a law school. However, it has been such a privilege to work at the national level, travelling from an aged care facil- ity two hours up a red dirt road from Katherine, then to Christmas Island or Tasmania. Developing my understanding of the complexity, richness, wealth and good will of much of Australia has been such an interesting part of my job.
I’d like to use my remaining time to discuss what it’s like to be a leader in human rights law in an election year. It’s been, as you will all know, a fairly haz- ardous and unpredictable business, and rather disappointing, but with mixed results.
Just a few weeks ago we saw an unprecedented public debate on the Human Rights and Anti-Discrimination Bill, which our new Attorney-General Mark Dreyfus has now withdrawn.
We’ve also seen four of the six media regulation bills withdrawn after ferocious and very public rejection by the media and by commentators.
In considering these reform initiatives, we’ve had one of the most robust dis- cussions that I’ve ever heard in Australia on the rights to freedom of speech and freedom of religion.
Going back to a point I made before about the legal twilight zone that we’re in, what this debate has highlighted is that we don’t have any Australian domes- tic law on the right to freedom of speech or right to freedom of religion.
These are fundamental rights that depend on our courts, on our community culture and on our politicians’ good will to implement. We rely on the courts, community and parliamentarians because we do not have a bill of rights or a legislative charter in the way that every comparable common law country in the world has.
As the public debate on the Human Rights and Anti-Discrimination Bill contin- ued in the media, the number of asylum seekers arriving in Australia by boat exponentially increased. Since 13 August 2012 – a critical date as it was when the Government adopted the policy of no advantage – we’ve had over 15,000 unauthorised boat arrivals with many more arriving each month.
Under the Government’s mandatory, and arguably arbitrary, detention policy, we now have over 1300 children in detention, closed detention behind wire. We have about 900 in open community detention and 30 or so detained in Manus Island.
The number of arrivals seems relatively trivial compared with the numbers that I saw in Jordan where I was a couple of months ago. In Jordan, they were dealing with 300,000 Syrian refugees pouring across their very porous borders. But the numbers nonetheless are very signi cant for Australia in the current political environment.
From a human rights perspective there are many legal issues raised by government policies in relation to refugees and asylum seekers. It is at least arguable and very probable that to detain people in closed detention who are seeking protection inde nitely is a breach, not only of international human rights standards, but of the very principles that King John was forced to agree to on the elds of Runnymede for the Magna Carta in 1215. We have now something like between 8000 and 9000 people in closed mandatory deten- tion in Australia as I speak. They have not committed any offence, and they have no capacity to go to the courts to have the necessity for their detention challenged.
Another area that is numerically not so worrying but nonetheless troubling at an individual level is that 55 people have been assessed to be genuine refu- gees before the new policy started on 13 August 2012, but they have been assessed by Australian Security Intelligence Organisation (ASIO) as being a security risk. Now, ASIO may be entirely right, and the evidence that they are a security risk may be watertight, but the dif culty is that nobody can challenge these assessments. You can’t go to the courts and say, “I’ve been assessed as a security risk but I’m a refugee, please determine or review whether or not the basis on which I am being detained is fair or not”. Indeed, the 55 people detained mandatorily don’t even know the reasons, or haven’t until very recently known even the most broad-brush reasons for their detention.
The difficulty is that no other country will take a refugee with a negative security
assessment, so there’s no possibility of them being resettled, and of course
they have no right of access to the courts. Recently, however – and this is a
ray of light – the Australian Government has appointed a Federal Court judge,
Margaret Stone, to conduct an independent review of ASIO’s assessment and 5 to give at least ballpark reasons for their detention. But the very sad reality for these people is that many have been in detention for close to four years.
A young woman in particular has had children, two children have been born in detention in Villawood, and many of these children have to attend school leaving closed detention to go out into the community during the day and back into closed detention at night.
Of course I haven’t yet mentioned the Convention on the Rights of the Child. We are very concerned with offshore processing insofar as children and fami- lies are being taken to what appear to be quite inhumane facilities in Manus Island and Nauru. We are also concerned with the way in which offshore pro- cessing is being conducted in that it appears the Government is delegating its responsibilities to the governments of Nauru and Papua New Guinea. The Government must be reminded that it cannot avoid its international human rights obligations by transferring asylum seekers to third countries.
We’re also concerned about the release of asylum seekers into the commu- nity on bridging visas. Those on bridging visas are prohibited from working, which seems to me not only contrary to refugee law but contrary to the very essence of being Australian. The opportunity to work is critical to the way in which we all form a part of the Australian community.
Against that rather dismal background, we have some important advances to human rights law, and one is the decision just a couple of months ago on a bipartisan basis for legislation to recognise Indigenous Australians in the Constitution. That is very unusual legislation and I think we all should be looking at it, but in a very short space of time it would be necessary for the Minister to report on the willingness of Australians to consider constitutional recognition of Indigenous Australians.
As previously mentioned, the Attorney-General has also appointed for the rst time a Children’s Commissioner at the national level. Children’s commissioners have of course existed at the state level, including here in Queensland, but never at the federal level. We also have something that has really occurred under the radar but I think is a very important mechanism to advance human rights law in Australia: that is the establishment by the Government of a joint parliamentary committee chaired by Harry Jenkins, former Speaker of the House. This committee has the task of scrutinising all bills and existing leg- islation for compliance with international human rights law. This committee is already proving very successful, detailed and conscientious in its work.
I’d like in the last couple of minutes, just to highlight the dif culties, by way of illustration, of trying to play a leadership role in relation to the Human Rights and the Anti-Discrimination Bill. Now that Bill, you’ll remember, was introduced by Prime Minister Julia Gillard and Attorney-General Nicola Rozon as a consolidation bill, and indeed it was. What the Government was doing was pulling together all the bits of legislation – sex, disability, race and age, as well as a few other provisions – and putting them in one coherent piece of legislation. We at the Human Rights Commission strongly supported it because it makes the law clearer, making it easier for employers and so on. You’ll remember that our Prime Minister used this language to promote the Bill. But what went wrong?
Well, what went so severely wrong was that this Bill did a lot more than con- solidate existing legislation. It was actually a profoundly important piece of reform legislation, because what it did was extend anti-discrimination laws that you already have on the books in Queensland, and they have had in Tasmania as well, on sexual orientation, religion, industrial history, social origin and so on. But the furore was created because suddenly laws that we under- stood in the context of race, sex and disability are now being applied to a new area of ‘protected attributes’.
The context in which much of this took place was in the area of racial vili – cation, and you’ll remember that the Government in the draft exposure Bill included the language from the Racial Discrimination Act3 of insulting and offending, so that if someone insults, offends, intimidates or humiliates some- body on the grounds of race in a public place or a public context, that will be something subject to prosecution under the Racial Discrimination Act.
We’ve lived very well with that law since 1996, but a prominent gure was prosecuted on the basis of it – that was Mr (Andrew) Bolt – for what the Judge determined in the Federal Court was inaccurate work that lacked good faith and could not be excused on any of the grounds of excuse. But the hare had been set running because what the Government did was to take the language of insulting and offending and apply it to all the new attributes, so that if you offended and insulted somebody on the basis of breastfeeding, immigrant status, social origin, industrial history, you could be drawn within the terms of the new legislation.
So we had the media doing what is absolutely fatal in Australia, they reduced
the Bill to ridicule. They made fun of it. They had cartoons of Nicola Roxon
dressed as a nanny, stuf ng the dummy in the baby’s mouth. We were seeing
ourselves as a nanny state, that in Australia we’re not robust enough to take 5 insults. We all rib each other for one reason or another. This attention on the words ‘offend and insult’ meant that the Bill was pretty much dead.
But it was also killed by the second point that was picked up so strongly in the media, and that is that there was a shifting of the burden of proof. Rather than having all the obligations to prove the offences in the Human Rights and Anti- Discrimination Bill lying with the complainant, a certain element of the offence of motive was to be moved typically of course to the employer.
And here we had the media and others saying that this was a reversal of the burden of proof and that it was going to destroy democracy as we know it.
Now, the fact that the courts have always applied the Racial Discrimination Act in the most egregious of cases, only at the highest threshold, was not relevant in the public arena. What happened was ultimately that the derision of the Bill was so powerful – even if misconceived – that very important reform legislation simply failed.
What lessons can be learnt from it? Well, rst that you should never describe to the Australian public legislation as being one thing when it’s actually that and something else. Australians are so quick to pick up any humbug or any obfuscation of the truth. The other is that when you’re reforming, particularly in a volatile political environment, you needn’t go for overreach. It’s not sensible. You need to have exibility and to withdraw.
The process highlighted the importance of leadership. If you haven’t got strong leadership to support a bill on a bipartisan level, it will fail. The context in which we have seen bipartisan leadership has been in the context of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, where both the Prime Minister spoke of a deed of reconciliation and Mr (Tony) Abbott, then Leader of the Opposition, spoke speci cally of the Treaty of Waitangi as a means of making two people one nation. That legislation has gone through and may very well be successful.
One aspect of the process that proved quite a surprise to us at the Commission was that the one area we thought would create the greatest public dispute barely raised a whimper: that is the issue of sexual orientation as a protected attribute. People accepted it. It was a fascinating process.
From here, we don’t know what’s going to happen except the good news, perhaps particularly for today’s group, is that the present Attorney-General is determined to get the sexual orientation provisions into the Sex Discrimination Act4 as it currently exists. So there will be something of bene t to come out of this process.
Perhaps I could conclude by saying that leadership, I believe, is enormously important and each of us should exercise it in the ways that we can, but it’s not about personal ambition. If that’s what it is, it’s a sterile concept and it’s totally empty of substance. We need to be strong in ourselves to know what it is we want to seek and to achieve, and I think with time we can almost always achieve it.
Reaching back a little to the Sandberg thesis, yes, women need to lean in but they also need to lean back and across to the groups that people like us have left behind; the women on the canteen oors, serving in the hospitals, in public transport where they’re poorly paid, poorly represented, almost inevitably have low superannuation opportunities, often not good career opportunities at all, managing families and doing so on relatively low wages.
I think one of the greatest responsibilities we have as well educated, professional women is to ensure that these women are drawn into our community, and that is where economic development will come when we work across these boundaries to bring women in and to ensure that they have the rights that they should have, as a matter of law and as a matter of ethics as well.
This speech was part of the CEDA Leadership series delivered in 2013.
- 1 Frankel, L 2004, Nice Girls Don’t Get the Corner Of ce 101 – Unconscious Mistakes Women Make That Sabotage Their Careers, Warner Books, New York.
- 2 Sandberg, S 2013, Lean In: Women, Work, and the Will to Lead, Random House, New York.
- 3 Racial Discrimination Act 1975 (Cth)
- 4 Sex Discrimination Act 1984 (Cth)