At the National Press Club on Wednesday, The Women’s Advocate put a direct question to the Sex Discrimination Commissioner about her powers and obligations under the Australian Human Rights Commission Act 1986 and why women advocating for women’s sex-based protections and rights have not been properly consulted on the development of key sex and gender policies in Australia.
As AAWAA has long pointed out, sweeping legal and policy changes reshaping women’s lives have been made without consulting women ourselves. Perhaps, at the time of these earlier consultations, the consequences for us as women were not fully recognised. But over time it has become clear that the effects have been substantial: Conflicts of rights have emerged, affecting a wide range of women’s protections – from access to female-only changing rooms, to the integrity of rape crisis centres and women’s prisons, to fair competition in women’s sport, and to the ability for lesbians to gather exclusively as same-sex attracted females, to name just a few.
The Australian Human Rights Commission (AHRC) is entrusted with upholding the rights of women, including our right to be consulted in line with Article 7 of CEDAW, which guarantees women’s right to meaningful participation in policy decisions affecting us. The Commission’s mandate is to uphold those rights. And yet, the AHRC has not scrutinised the effects of these policy reforms on women’s sexed-based protections and neither has it fulfilled Australia’s international obligation for women’s meaningful participation in the formulation and implementation of policy that affects us. Instead, it appears that the AHRC focuses on selected groups, without addressing the fact that rights do, sometimes, come into conflict.
During our exchange at the National Press Club, the Commissioner stated that “CEDAW has been interpreted and understood to include all women.” This claim is particularly significant for the most vulnerable of us, that is, those who may not have the means or institutional support to take a case to the AHRC. If CEDAW is being interpreted by the AHRC to mean ‘versions’ of ‘woman’, then Australians are entitled to know when this change was made, how it has been explained publicly, and crucially, how it affects the rights of women as women.
The Commissioner on Wednesday described this reinterpretation as occurring through a “committee that looks at the meaning and the understanding of each of the articles of the convention” in response to our direct, public question. However, there has not been a formal process of consultation or a clear, accessible public statement explaining how and when this change was made, how it was explained to the Australian people, and critically, how it impacts the pre-existing rights of women to sex-based protections.
For the record, we do not accept that CEDAW itself has been so fundamentally re-interpreted in this way. The reality is that this is highly contested even within the UN, as official statements — including from experts such as Reem Alsalem, UN Special Rapporteur on violence against women — have now called out the questionable assumption and its impact on the safety and participation of women and girls. And to the extent that it has happened, it would appear to be the result of activists within the UN system who have promoted this position without proper consultation, which itself breaches Article 7 of CEDAW.
That is why we put the question. Section 11 of the AHRC Act empowers the Commission to inquire into any act or practice that may be inconsistent with or contrary to any human right, and to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights. These statutory functions belong to the Commission and cannot be delegated or ignored: This power lies squarely with the Commissioner and the Commission, and cannot be passed off to others.
This is not a campaign against others’ rights: It is advocacy for our own. And it is simply to insist that, where rights are in conflict – for example, in sport or in prisons or change rooms – then those conflicts must be addressed openly and mediated on the basis of proportionality, rather than allowing women’s rights to be quietly displaced and overridden by administrative re-definition. This is the role of the Sex Discrimination Commissioner.
We welcome the opportunity to sit down with the Commissioner and further explain where we believe women have not been adequately consulted. A transcript of our exchange with the Commissioner is provided below.
