Conference Conversations is a 3-part blog series based on papers from key speakers at the Castan Centre Human Rights Law Conference 2021, which took place on Friday 23 July this year. The first blog in this series is based on a paper presented by the author, Dr Tania Penovic, in session one of the conference on ‘Confronting Persistent Gender Inequality and Harnessing Women’s Voices’.
By Tania Penovic
Australia’s current level of engagement with the UN human rights system is perhaps unprecedented. We have two representatives on human rights treaty bodies and two experts serving on mandates of the Human Rights Council. All four of these individuals are women and on the world stage, we have presented ourselves as a leader in advancing gender equality. My paper will interrogate this self-image by looking at our international engagement and considering the way it is reflected at home.
Our recent history of engagement
Our engagement has not always been constructive. It took a combative turn two decades ago, largely in response to findings of the Committee on the Elimination of Racial Discrimination on discrimination against Indigenous Australians. The Committee was said to have ‘failed to grapple with [our] unique and complex history of race relations’1 and castigated for its reliance on information from civil society rather than the more airbrushed image presented by Australia. Then Foreign Affairs Minister Alexander Downer declared that ‘[i]f a United Nations committee wants to play domestic politics here in Australia, it will end up with a bloody nose.’
We disengaged to a degree with treaty bodies, resisted international visits2 and refused to ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on the basis that Australia already has a ‘world class regime of legal and institutional mechanisms to protect women against discrimination’.3
Dianne Otto observed that this exceptionalist stance rests on the claim that our exemplary human rights record exempts us from having to respond seriously to the concerns of an international system which should be focused on undemocratic states (them) rather than us.
Resistance to human rights scrutiny has been reflected in hostility directed towards NGOs and former Australian Human Rights Commission president Gillian Triggs in the context of our seemingly intractable asylum seeker policy. Reports from UN special rapporteurs have been disparaged as lectures that ‘Australians are sick of’ or ‘the kind of nonsense we are used to from these armchair critics.’ But more recently, we have welcomed visits from these special procedures of the Human Rights Council and hosted visits by five special rapporteurs with a further three postponed due to COVID-19. We have sought election and served a three-year term on the Human Rights Council, fuelling speculation about a shift in our engagement with the UN system and a greater commitment to domestic implementation.
A retreat from exceptionalism?
In examining whether Australia’s engagement has shifted from the exceptionalism of the past, I will apply the lens of rituals and ritualism drawn from sociology, anthropology and regulatory theory by Hilary Charlesworth and Emma Larking and applied to participation in the UN system. Charlesworth and Larking have described rituals are ‘ceremonies or formalities that, through repetition, entrench the understandings and the power relationships they embody’, a ‘means of enacting a social consensus.’4 Ritualism involves embracing human rights language and garnering the legitimacy associated with human rights commitments while, or even as a means of, deflecting scrutiny and avoiding accountability.5
So rituals encompass the processes of engagement with the human rights system, including the processes of reporting periodically to treaty bodies and the Human Rights Council’s Universal Periodic Review, responding to the recommendations emanating from these processes and engaging in international political negotiations.
I will consider whether Australia’s engagement is marked by human rights ritualism by examining our recent participation in the rituals of the UN human rights system and then considering whether this has translated into a commitment to the advancement of gender equality at home.
The rituals of engagement
A foundational ritual of UN engagement is treaty ratification. And despite previous its earlier refusal, Australia has ratified CEDAW’s Optional Protocol. In recent years, it has also ratified the Convention on the Rights of Persons with Disabilities, its Optional Protocol, two Optional Protocols to the Convention on the Rights of the Child and, after significant delay, the Optional Protocol to the Convention against Torture.
A focal point of our international engagement has been our recent term on the UN’s key intergovernmental body responsible for human rights, the Human Rights Council. In our bid for membership, we promised a principled but practical approach built on five pillars which represent areas in which we claimed to be positioned to advance human rights and to be leaders in promoting improvements. The first pillar is gender equality.
Our leadership in this regard derives from a foreign aid strategy introduced by our first female Foreign Affairs Minister and continued under our second. At least 80% of development investments are dedicated to gender issues, including violence against women and women’s empowerment. This significant commitment to gender equality abroad has yet to be matched with a broad-based gender policy at home. Susan Harris Rimmer and Marian Sawer have observed a longstanding tendency to champion our achievements in foreign policy while deflecting attention from the gendered impact of the ‘neoliberal reshaping of the welfare state’ in the form of shrinking public sector funding6 which may be seen, for example, in the chronic underfunding of the Office for Women.
During our final year on the Human Rights Council, we commenced a four-year term on the Commission on the Status of Women, the UN’s principal intergovernmental body dedicated to gender equality and women’s empowerment. At its 65th session in March 2021, Australia engaged actively in the rituals of membership, serving as Vice-Chair of its Bureau. Our national statement to the session was delivered by Senator Marise Payne at around about the same time that thousands of people marched across Australia for gender justice.
The statement noted the gendered impact of COVID-19 and the effectiveness of targeted measures for increasing women’s full, equal and meaningful participation and leadership in public life. It affirmed Australia’s commitment to the Security Council’s Women Peace and Security Agenda. It observed that women’s wellbeing and ability to participate in public life is inextricably linked to achieving women’s economic empowerment, and end to gender-based violence and sexual and reproductive health and rights. And it declared Australia’s commitment to ‘advancing women’s leadership at all levels and in all areas of our lives, free from discrimination and violence.’ In the performative rituals of membership and participation in key intergovernmental bodies concerned with human rights, Australia presents as champion of gender equality. For observers unapprised of events at home, Australia may indeed appear to have eliminated gender-based discrimination.
A further ritual of engagement has been Australia’s nomination of a number of human rights experts to thematic mechanisms and treaty bodies.
First, Megan Davis currently serves on the Expert Mechanism on the Rights of Indigenous Peoples, which advises the Human Rights Council. Her contribution to the UN human rights system is broad and significant. She has served as a member and chair of the UN Permanent Forum on Indigenous Issues and participated in drafting the UN Declaration on the Rights of Indigenous Peoples. At home, Professor Davis has played an important role in the Uluru Statement from the Heart.
Second, Australia’s former Sex Discrimination Commissioner Elizabeth Broderick was appointed in 2017 to the Working Group on Discrimination against Women and Girls, a body created by the Human Rights Council to address the failure of states to realise the commitment made at the Fourth World Conference on Women to revoke discriminatory laws. During Broderick’s tenure, the working group has undertaken important work to highlight the gendered impacts of laws and practices and advocated for the reform of discriminatory laws.
Third, Rosemary Kayess was elected to the UN Committee on the Rights of Persons with Disabilities in 2019 and now serves as chair. Kayess was involved in the drafting of the Convention on the Rights of Persons with Disabilities and lobbying for its ratification by Australia. She is the first Australian woman and second Australian to serve on the committee, with Ron McCallum having served two terms between 2009 and 2014. Australia’s nomination for her re-election was recently announced.
Finally, for the first time in almost three decades, the CEDAW Committee has an Australian member. Natasha Stott Despoja commenced her term in January after an election campaign conducted largely online. Stott Despoja will build on an important legacy. Her predecessor, Elizabeth Evatt served on the committee from 1984 until 1992 and chaired it from 1989-1991. Evatt helped achieve important procedural reforms to the Committee’s processes and played a critical role in the normative expansion of the prohibition of gender-based violence, promoting the understanding that violence in the private sphere is a violation of human rights.7
In a media release congratulating Stott Despoja on her election, Senator Marise Payne links the government’s support for the election of an Australian to the committee as a corollary of ‘Australia’s proud record of advocacy on gender equality’, building on our global leadership on gender equality and commitment to eliminating discrimination against women and girls in Australia and globally. I will now consider that commitment in Australia.
From the international to the domestic
So has our high-level engagement in UN rituals, including the nomination of leading experts, marked a retreat from the exceptionalist premise that the system is designed for others and not for us? Or is it a manifestation of human rights ritualism? The answer lies in our stance towards domestic implementation, the degree to which we have embraced the standards that underpin our international engagement.
In recent years, recommendations by bodies such as the CEDAW Committee and Special Rapporteur on Violence against Women have been received politely, without public contestation. But many are not implemented and we have failed to manifest a commitment to the kind of transformative change needed to advance gender equality in Australia.
‘Australia has a significantly better track record than many other countries, but still women continue to face many barriers, including unequal pay, workplace discrimination and pervasive sexual harassment. And I have heard for a long time about the exceptionally misogynistic approach to women politicians by many men in Australian political life, and elsewhere in society.’
The ‘misogynistic approach’ referred to by the High Commissioner has been well ventilated in recent months and much has been said about Australia’s cultural ‘moment.’ But we are yet to see a sincere commitment to the transformative change needed to address sexual harassment, discrimination and gender-based violence.
The implementation of CEDAW requires states to combat gender stereotypes in the family and society and the CEDAW Committee has called on Australia to develop a comprehensive strategy to overcome discriminatory stereotypes. But we do not need to look much further than the treatment of women in political office to understand that stereotypes pervade our society and require so much more than an hour-long optional training session to dismantle. Female politicians are routinely depicted as housewives, housekeepers, child carers, school girls, head girls, headmistresses or weather girls, shamed for being deliberately barren, man-hating shrews, or outsourcing their parenting responsibilities.
Research undertaken by Blair Williams has found gender stereotyping in the media has intensified over time. Gender is often the primary descriptor of female politicians8, and significant attention paid to clothes, body shape, partners, families and childcare arrangements.9 ‘Celebritised’ depictions of female politicians have come with expectations about grooming and appearance, positioning ‘sartorial style as central’, making women ‘seem ‘other’ to their political role’10 and ‘detract[ing] from their reputation as serious political actors.’11
This type of attention came into sharp focus during the leadership of our first and only female Prime Minister Julia Gillard. Even Germaine Greer weighed in on Gillard’s clothing choices with reference to her body shape, providing a license to others to weaponise the very tropes Greer has worked to dismantle.
Gillard received a lot more than gendered wardrobe advice. She was the subjected to intense hostility and gender-based mockery,12 described by Anne Summers as a manifestation of institutionalised resistance to women’s equality, rooted in entrenched assumptions about women’s full participation in Australian society.13
With her inquiry into Parliament House culture underway, Sex Discrimination Commissioner Kate Jenkins has a gargantuan task ahead. And there are many dark spots in Australia’s gender equality picture beyond the government’s failure to manifest the commitment necessary to change Australia’s culture of sexual violence and discrimination. These include the federal government’s failure to accept the Respect@Work report’s most transformative recommendation, requiring positive measures from employers to eliminate sexual harassment, discrimination and victimisation.
They include the imminent absorption of the Family Court of Australia into the Federal Circuit Court in the face of warnings by a preponderance of experts that the loss of a specialist court is likely to expose women to gendered harm.
They include the re-emergence of ‘religious freedoms’ on the government’s legislative agenda. UN Special Rapporteur on freedom of religion or belief, Ahmed Shaheed, whose mandate is focused on dismantling obstacles to religious freedoms, has cautioned against the enactment of such laws on the basis that they undermine gender equality and legitimise violations of fundamental rights. In a report to the Human Rights Council, he observed that similar laws have served as a rationale for the dismissal of pregnant employees for being unmarried; the denial of access to (and insurance coverage for) legal reproductive health services and refusals to discharge prescriptions for contraception.
Reports that religious freedoms will be an election issue raise the disturbing prospect of a radical departure from the standards we champion to the world. The enactment of such laws would not facilitate constructive engagement with the UN, or help Australia advance gender equality at home, in our region and beyond.
Facing our ritualism
Hilary Charlesworth and Gillian Triggs have observed Australia to be Janus-faced; with one face looking to the UN and championing human rights elsewhere while the other looks inwards and fails to implement human rights principles at home. When we consider Australia’s domestic implementation of the international standards it champions on the world stage, the ritualistic face is revealed.
The power of participating in rituals in which we position ourselves as a leader has yet to translate to a deeper commitment to advancing gender equality and accountability for violations of women’s human rights. Significant work remains to be done to bring our implementation of international norms into line with our vainglorious view of ourselves.
- Daryl Williams, Attorney-General, ‘CERD Report Unbalanced’ (Press Release, 26 March 2000).
- Alexander Downer, Daryl Williams and Philip Ruddock, ‘Improving the effectiveness of United Nations Committees’ (Joint Media release, 29 August 2000).
- Minister for Foreign Affairs, Alexander Downer, ‘Minister’s Reply’ [to letter from Professor Maddocks] (2000) 147 UNity News 2.
- Hilary Charlesworth and Emma Larking, ‘Introduction: the regulatory power of the Universal Periodic Review’in Hilary Charlesworth and Emma Larking, Human rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press, 2014) 8.
- Ibid, 18.
- Susan Harris Rimmer and Marian Sawer, ‘Neoliberalism and Gender Equality Policy in Australia’,(2016) 51(4) Australian Journal of Political Science 742, 753-754.
- Evatt was a driving force behind the Committee’s first comprehensive statement on violence against women, General Recommendation 19. The statement recognised gender-based violence as a form of discrimination within the ambit of CEDAW and has been built upon by a General Assembly declaration and the work of thematic mandates of the Human Rights Council, regional human rights bodies and the CEDAW Committee’s views and inquiries under CEDAW’s Optional Protocol. In 2017, General Recommendation 19 was updated by the more comprehensive General Recommendation 35 which affirms the position that the prohibition on gender-based violence had evolved into a principle of customary international law.
- Blair Williams, ‘A Tale of Two Women: A Comparative Gendered Media Analysis of UK Prime Ministers Margaret Thatcher and Theresa May, Parliamentary Affairs (2021) 74, 398–420; Blair Williams, ’A gendered media analysis of the prime ministerial ascension of Gillard and Turnbull: he’s ‘taken back the reins’ and she’s ‘a backstabbing’ murderer’, (2017) Australian Journal of Political Science, 52:4, 550-564, DOI: 10.1080/10361146.2017.1374347, 558.
- Ibid, Blair Williams, ‘It’s a man’s world at the top: gendered media representations of Julia Gillard and Helen Clark, (2020) Feminist Media Studies, DOI: 10.1080/14680777.2020.1842482
- Blair Williams, A tale of Two Women’ note 8 above, 413.
- Ibid 411.
- See generally Samantha Trenoweth (ed), Bewitched and Bedevilled: Women Write the Gillard Years (Hardie Grant, Melbourne, 2013).
- Anne Summers, The Misogyny Factor (NewSouth, Sydney, 2013) 19-21; see also Helen Pringle, ‘The Pornification of Julia Gillard’, in Samantha Trenoweth (ed), Bewitched and Bedevilled: Women Writethe Gillard Years (Hardie Grant, Melbourne, 2013)
Dr Tania Penovic is a Senior Lecturer, and Deputy Associate Dean (International) in the Faculty of Law at Monash University. She is also the Research Program Group Leader in Gender and Sexuality for the Castan Centre for Human Rights Law.