Bills

Gender Equality Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2021.)

The Hon. C. BONAROS (17:23): As I said when I last spoke on this bill, it aims to expand on the work Dr Vincent and many others have done in South Australia to strive for continuous improvement in workplace gender equality across the state in the public sector, including the Courts Administration Authority and local councils. It has a second complementary focus of achieving better results through improved policies, programs and services being delivered by these agencies. This means the services being delivered will be cognisant of gender equality principles, and hence of a higher standard and a better fit for the South Australian public accessing these services.

As I have said, the two objectives of the bill work hand in glove and avoid becoming siloed, like so much well-intended legislation often does. It is intended to work within the existing legal framework, although as I have noted we do not have the legislative groundwork that Victoria had to build on. It is important, therefore, to outline the difference between the Equal Opportunity Commission and this proposed gender equality commission. Equal opportunity and gender equality are two quite different but closely related things.

The South Australian Equal Opportunity Act has effectively promoted equality of opportunity for all South Australians and given us remedies where this has been denied or people have been unfairly discriminated against on the basis of age, gender, disability or other characteristics, such as being pregnant. The act was designed to address discrimination and while it has made an important contribution to gender equality, it was not designed to plan for, promote, foster or enable gender equality.

This bill sits alongside the Equal Opportunity Act, but unlike that legislation this bill is adaptive, it is agile and it is aspirational rather than preventative and reactive; that is, it is not a remedy to right wrongs or address instances of discrimination based on gender. Rather, it is a forward-looking, future-building strategy with the tools and processes to have a real and incremental impact on gender equality in the public sector. It provides the framework and structure to progress gender equality in a tailored and meaningful way in the public sector, rather than as a prescriptive, punitive or one-size-fits-all approach.

The gender equality commission this bill creates will have an empowering brief to work with the public sector bodies and entities to foster and enhance gender equality in the most effective and appropriate way for that workplace, according to the context in which it is being implemented. The bill is designed to address gender equality, because like racial equality it is unfinished business in Australia.

'What is the problem?' I hear some of our commentators ask. I am sure there are still people, some people, even in this place perhaps, who will say this bill is not needed, just as some members claimed that women's suffrage was not necessary, that women should not be served in front bars, be admitted to universities, continue to work after marriage, be permitted to fly planes, serve in combat roles in the defence forces or be assured of protection from sexual harassment in the workplace. Some people are probably still welded to a stereotypical view of a world divided between home and child-caring women and men as breadwinners. Thankfully, most of those stereotypes are gone and we now recognise parental leave as relevant for both parents.

However, some will claim gender equality disadvantages men. To claim this is to fundamentally misunderstand the intent of this bill. This bill is about gender equality for all. Some will believe, or at least perceive, that the Equal Opportunity Act already deals with gender equality and that the level playing field has been, or is being, levelled, or they will frame the problem as insurmountable, asking how you can recruit if the pool you are recruiting from is too shallow.

The simple counter to this argument is that this bill aims to make the pool bigger and accessible to everybody, so all those with merit can jump right in. No-one is being given a leg up; they are just not being held down by one leg. There is a real problem, which Virginia Haussegger AM recently eloquently defined:

Gender equality progress in Australia is in trouble. Despite Australia's leadership in developing some of the best anti-discrimination legislative frameworks in the world, the current climate of bias and backlash is proving immune to regulatory control. Australian women and girls are failing to flourish as well as they should, particularly given our decade long world number one ranking in female education.

Over the past 14 years, Australia has fallen from a rank of 15th to 44th on the World Economic Forum's Global Gender Gap Index. We know from Peter Drucker, the father of modern management theory, that what is measured improves, and in large part this bill is about setting targets, planning and strategising, and measuring outcomes to make sure it does happen.

While we have made some gains, occupational gender segregation has remained persistent over the past 20 years. Avivah Wittenberg-Cox, a noted gender consultant, calls it 'gender asbestos':

There is massive corporate mis-adaptation to today's talent realities and the subsequent inability to retain and develop women as well as men. I call this 'gender asbestos'. It's hidden in the walls, cultures and mindsets of many organisations. But ridding the structure of these cultural toxins will require more than pointing accusingly at the mess. It requires a detailed plan for how to move forward and a compelling, attractive portrait of the result.

The undeniable fact is women still earn an average of 14 per cent less than men, and although the private sector is beyond the scope of this bill, I would like to point out the number of women running top ASX-listed companies has actually gone backwards in recent years.

In Australia, despite women being the majority of law graduates they are still significantly under-represented at the most senior levels of law firms and the judiciary. Females make up less than a third (31.8 per cent) of Supreme Court and similar level judges across Australia. However, in an encouraging development women are close to achieving gender parity in local and magistrates courts, making up 46.7 per cent of magistrates. This is quite a turnaround. It took until 1965 for Australia's first female judge, Dame Roma Mitchell, to be appointed to the Supreme Court of South Australia and until 1974 for its first female magistrate: Margaret Sleeman in New South Wales.

Women make up almost a third of the Federal Court judges—19 out of 58—a rise of 15 per cent since 2011, but there is still a long way to go. Chief Justice Murrell recently said it was important for all courts to strive for equality:

Not just gender equality but all groups within the community, or a reasonable representation of all groups within the community. It inspires community confidence in a court if the bench is seen as representative of the community.

Her comments come after national data recently revealed female barristers received 27 per cent of briefs in 2018-19 and just 20 per cent of court fees paid to barristers. Law Council of Australia President Pauline Wright said it was encouraging to see the number of female judges and magistrates increasing, although more work needed to be done. She said:

Promoting diversity in the judiciary is not some esoteric ideal—a judiciary that properly reflects the community it serves enhances public confidence in the administration of justice, including respect for the rule of law.

This bill is to ensure public sector professions that currently show a real gender imbalance towards women, such as teaching, take steps to attract and retain men and non-binary genders in these roles so students learn from all genders and importantly see all occupations and careers as open and available to them.

I remember former Victorian police commissioner Christine Nixon addressing a group of women lawyers about how she fostered gender equality in the Victorian police force. When she asked the rank and file why there were not more women in the force she expected a range of answers but not the one she received. Her officers told her it was 'the wall' that kept women out.

The commissioner thought that must have been police speak for the glass ceiling until she found out that the actual real physical wall that recruits had to scale to pass the fitness test to gain entry to the police force was physically impossible for most average height women to successfully climb over.

The commissioner's response was delightfully simple and effective. She ordered the force to get rid of the wall literally, and the gender balance of the Victorian police force rapidly changed. It is interesting that until she asked the question and actually did something about it the wall had been accepted as the literal and figurative barrier to joining the Victorian police force.

Ruth Bader Ginsburg in an interview in 2015 identified this kind of unconscious accepted bias as an insidious and persistent issue. She said her best example was the symphony orchestra and recounted this delightful and powerful story:

When I was growing up, one never saw a woman in the symphony orchestra, except perhaps playing the harp. People who should have known better like The New York Times critic, Howard Taubman said, 'You could put a blindfold on him and he could tell you whether it's a woman playing the piano or a man.'

Someone had the simple idea, 'Let's drop a curtain. Let's drop a curtain between the people who are auditioning and the people who are judging.' And almost overnight, there was a sea change. Once the curtain was dropped, the testers couldn't tell whether it was a man—or a woman. And they made their judgments based on the quality of the performance.

Some years ago, when I was telling this story, a young violinist told me, 'You left out something.' 'Well, what? What did I leave out?' 'You left out that we auditioned shoeless, so they won't hear a woman's heels behind the curtain.' That device of the dropped curtain isn't so easy to duplicate in other areas.

This bill is about taking down those barriers to gender equality. It is also about setting targets so that, for example, the $1.2 billion in federal funding recently allocated to apprenticeship training does not only go to the traditionally 75 per cent male trade trainees in public sector agencies, but the trades are treated as ungendered and that the government recruits according to the targets that they have set themselves.

I look forward to the day, which will come, we all know it will come, when women see careers in mining, government and politics as ungendered, because sadly the evidence from current gender equality statistics is that it is largely women, lesbian, gay, bisexual, transgender, intersex, questioning, asexual and other gender groups who bear the brunt of gender inequality. If you remain unconvinced, you need do no more than look around this place where we sit today.

The South Australian parliament has the worst female representation in the country and will not reach gender parity until 2050, if we keep going at the current rate. Just 29 per cent of our MPs are women and the number has decreased since 2006. I am sure Muriel Matters and Mary Lee would be horrified to learn that we have gone from first to last in Australia in regard to women's representation and that we are actually going backwards.

Sadly, there are many examples across a broad range of contexts that I will not go into detail about today. The COVID-19 health emergency has only exacerbated an already disparaging gender equality outlook and has had a negative impact on any traction that we had pre-COVID-19. Early statistical data shows us that women have borne a disproportionate burden during this national health emergency and will continue to do so.

Again, the focus of my bill is crystal clear. It is to pursue gender equality because gender equality benefits all genders. It contributes generational change for our collective greater social and economic good. The bill is based on the following objects and principles: that all South Australians should live in a safe and equal society, have access to equal power, resources and opportunities and be treated with dignity, respect and fairness. Gender equality benefits all South Australians regardless of gender. Gender equality is a human right and precondition to social justice. Gender equality brings significant economic, social and health benefits for South Australia. Gender equality is a precondition for the prevention of family violence and other forms of violence.

Advancing gender equality is a shared responsibility across the South Australian community. All human beings, regardless of gender should be free to develop their personal abilities, pursue their professional careers and make choices about their lives without being limited by gender stereotypes, gender roles or prejudices. Gender equality may be compounded by other forms of disadvantage or discrimination that a person may experience on the basis of age, disability, ethnicity, gender identity, race, religion, sexual orientation and other attributes. Women have historically experienced discrimination and disadvantage on the basis of sex and gender.

The bill has two main elements to achieve the objectives that I have just referred to. Firstly, it provides for the appointment of a public sector gender equality commissioner to oversee and ensure implementation of the bill. The commissioner will oversee compliance and enforcement. A notable feature of the bill is the commissioner will be able to deal with disputes arising under an enterprise agreement or a workplace determination dealt with under the Fair Work Act, where the dispute relates to a systematic gender equality issue and the dispute is referred to the commissioner in accordance with a term of the enterprise agreement or workplace determination by a person covered by the enterprise agreement or workplace determination.

Secondly, the bill gives relevant entities very clear obligations to set and meet gender equality targets. A relevant entity is defined as a public sector agency within the meaning of the Public Sector Act, the South Australian Courts Administration Authority, local councils and entities prescribed by the regulations for the purposes of further paragraphs.

The bill requires that each time a relevant entity develops or reviews a policy, program or service that has a direct and significant impact on the public, it will assess the relevant venture against criteria that inspire equality. Relevant entities will also be required to conduct a workplace gender audit by 2021 and then once every four years thereafter. Following the audit, the bill requires that a gender equality action plan be submitted to the commissioner on or before 31 October 2021 and once every four years thereafter.

Every relevant entity will also be required to publish the action plan on its website. The plan must consist of the results of the audit and strategies and measures for promoting gender equality, based on the results of the entity's audit. Every second year after the relevant entity has submitted its action plan, it must submit a progress report to the commissioner. The Governor will be able to make regulations so that a relevant entity can tailor the provisions to best suit them. The bill gives considerable flexibility and freedom of design to avoid it becoming an erroneous or irrelevant obligation or administrative burden.

Targets and quotas are set by regulation and will be tailored to an industry or sector. Organisations will be required to make reasonable progress against them. Targets and quotas are needed because they do work. To be clear, there are a lot of things the bill does not seek to do. It is not an affirmative action initiative. It does not arbitrarily set targets or even provide the parameters for this because it is intended to be highly customised to the gender equality challenges that the agency faces. These will vary greatly, and the bill is responsive to this. It does not dispense with merit, skills, abilities and attributes as prerequisites to employment.

Promoting diversity goes hand in glove with promoting merit-based appointments because it ensures decision-makers are presented with the widest range of suitable and talented candidates for consideration. As Avivah Wittenberg-Cox said, stop asking, 'What's wrong with women that they're not making it to the top?' and start asking, 'What's wrong with workplaces if they can't retain and promote the majority of educated Australians?'

Gender equality is not just about women; it is about all genders having equality of access, opportunity and advancement. This bill is aimed at empowering the public sector agencies identified to build on the struggle of those who have come before us and to create a better world for those who come after us.

I, like many others in this place, want to see all genders as equal participants in all aspects of economic, social and political life, able to make their own choices and decisions in regard to their work and family lives. This bill is intended to ensure we are not judged by our chromosomes and can live our lives without discrimination, without harassment, without bullying and without violence. I believe that we can create a more equal and just Australia and that putting gender equality front and centre is key to this. With those words, I commend the bill to the Legislative Council. I look forward to what I am sure will prove to be a lively debate during the committee stage.

Debate adjourned on motion of Hon. D.G.E. Hood.