It will soon be 50 years since I started studying at the Adelaide Law School. I was one of ten female students in a cohort of 110. The number of female legal practitioners in Adelaide at the time would not have reached double digits. Indeed, my parents thought that the best way for me to ensure I got a job in a good legal firm post-graduation would be to obtain secretarial qualifications. This was probably not surprising at a time when the employment pages of the local papers had ‘Men & Boys’ sections and ‘Women & Girls’ sections.
After my graduation, and after I had taught at the Adelaide Law School for two years, I found that attitudes had not changed much. As an articled law clerk, I was introduced to the senior partner of one of Adelaide’s oldest law firms. This led to his discovering that I was a graduate in law and arts. His spontaneous response: ‘Good heavens, someone has wasted a lot of money on your education!’
These stories date from a time before Australia had sex discrimination legislation. South Australia passed Australia’s first Sex Discrimination Act in 1975. The passage of that, and subsequent legislation, helped change attitudes but change didn’t come quickly and even today it is far from complete.
The Workplace Gender Equality Agency reports that the representation of women steadily declines when moving up the management levels with women comprising only 26% of key management personnel; one third of employers have no women who are key management personnel; and the gender pay gap for full-time base remuneration is 19.9%, and 24.7% if full-time total remuneration is measured. The former Sex Discrimination Commissioner has recently pointed out that more big Australian companies are run by men called Peter than by women.
Over 60% of law graduates are women but only 28% of the total Australian judiciary are female. More than half of academic staff in Australia’s universities are female but just over a third of staff above the level of senior lecturer are female.
Unsurprisingly there is a significant gender gap in retirement savings with many women living their final years in poverty. The average superannuation payout for women is approximately a third of that for men.
These are the outcomes after we have removed formal barriers to women entering paid work, after we have enacted laws proscribing sex discrimination and laws providing for maternity leave and subsidised childcare, and as we are starting to attend to the workplace consequences of domestic violence.
Working women are now recognised as a national productivity imperative. They should not face serious financial and other penalties for also undertaking the caring work that is vital to our society.
So what is to be done?
We tend to think of the fight against discrimination as a fight for equality. In one sense of course it is, but more fundamentally it is a fight for justice.
We accept in many areas that the national interest is advanced by laws that impact differently on those whose circumstances are not the same. Few object to the rich and the poor paying income tax calculated at different rates; few complain that veterans and their dependents enjoy favourable medical and social security benefits when compared with the general population; few argue against businesses being required to make reasonable adjustments to employ persons with disability. We see the justice of these measures even though they depart from strict equality.
We need to be alert to the need for other departures from strict equality in the interests of justice. Such departures might include things like compensating women, perhaps through special payments into their superannuation accounts, for their time away from full-time work, and targeted mentoring programs for women that keep them in touch with their workplaces while they are on maternity leave. Others will be better equipped than me to think of the full range of possible initiatives.
We need also to remember that as society changes what constitutes justice will also change.
One important change in our society is the increasing involvement of men in their children’s upbringing. Some are becoming primary caregivers, but more are truly sharing responsibility with their partners or former partners. Some, perhaps many, men would be happy to play a larger role. My hope is that this significant contemporary dynamic will prove to be a powerful force towards the achievement of improved work-life balance for everyone.
If we really want gender equality we must stop thinking of work-life balance as a women’s issue. We must stop thinking of family responsibilities as women’s responsibilities. We need to learn to value workplace leadership and caring equally, to think that managing a business or practice and managing a household full of other human beings are equally valid and valuable occupations.
The time will come when women can have it all. If we want justice for women in the workplace what we need is significant numbers of men making the case that justice for them requires that they be able to spend time caring for their families without significant cost to their careers and to their long-term financial security. Once work-life balance is seen as a men’s issue then, and I suspect only then, will we see the sorts of changes that will ensure justice – for both men and for women.
The Hon. Catherine Branson QC is on the board of the Human Rights Law Centre. She is the former President of the Australian Human Rights Commission and a former judge of the Federal Court of Australia.
This is an edited version of a speech delivered at the 2015 Law and Justice Address.