How a human rights frame can advance better policy for women
There are a range of approaches and tools that can be used to assess and improve public policy for women. Annie Pettitt, of Good Shepherd Australia New Zealand, shared her expertise in applying a human rights lens to gender inequality in a keynote address given at the Women’s Policy Forum, held on 22 September 2017 in Melbourne. Today’s piece provides a summary of Annie’s key points, which explains the unique contributions that a human rights frame makes to better policy for women.
Gendered differences in policy
A gender perspective on public policy is important within the human rights framework for the very simple reason that, as Elizabeth Broderick stated,
All policies impact on men and women’s lives in one way or another… Because of economic and social differences between men and women, policy consequences, intended and unintended, often vary along gender lines. It is only through a gender analysis of policy that these differences become apparent, and solutions devised.
Public policy has the capacity to either perpetuate or eliminate discrimination and gender inequality. It is only by making gender a central consideration in the development and implementation of public policy that we can hope to advance gender equality and women’s human rights in Australia.
The Canadian Government have been using the ‘Gender-Based Analysis Plus’ in the development of policies, programs and legislation since 1995. The ‘plus’ goes further than simply considering how a law or policy might impact on gender and highlights that gender and sex intersect with our other identities, such as race, ethnicity, religion, sexual orientation, and/or mental and physical ability. It is essential that we are sensitive to the multiple, intersecting, and often invisible, forms of exclusion that many women face, based on their race, their ability, their sexual orientation or, for example, their age (See the Convention on the Elimination of All Forms of Discrimination against Women, or CEDAW).
The unique contributions of employing a human rights lens
So what does a human rights lens provide? How is it different from what we might consider just good policy? In this piece I outline two key opportunities that a human rights framework provides that are distinct:
1. The ‘What.’ We need an ethical framework – and while there might be other models, the international human rights framework and system is the one that we have; it’s been internationally negotiated and agreed to; and there are systems and processes that are linked to our political and legal system that are available to us.
2. The ‘How.’ The human rights system not only provides us with the content of recognised rights, and the processes through which we can pursue them, it also provides us with an approach, or the ‘how,’ to do our policy/law reform work. This is often called employing a ‘human rights-based approach.’
The ‘What’: Human rights as an ethical framework in the Australian context
While there are other frameworks that can be employed to make ethical decisions, the human rights framework is the only one that that has been universally endorsed by all nations, cultures and religions. In addition, the corresponding international human rights monitoring systems established through the United Nations provide a structured process for progressive realisation – including periodic monitoring of government actions and individual complaint mechanisms. While these processes are respectful of state sovereignty, they also incorporate monitoring and evidence of ongoing improvements and compliance and non-regression. There are a range of systems created for the monitoring of human rights protection and promotion, including:
· The Universal Periodic Review. This is a unique process which involves a periodic review of the human rights records of all 193 UN Member States. The UPR provides an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. The reviews are conducted by the UPR Working Group which consists of the 47 members of the Human Rights Council. This is a peer-to-peer review between countries.
· Human rights treaty monitoring committees. These ten committees are tasked with monitoring the core international human rights treaties, and generally requires states to report every 4-5 years (Australia is a party to seven of the nine main treaties[ii]). Reviews are conducted by independent expert members of the committees.
· Some treaties – including CEDAW - have an Optional Protocol that creates a process for making individual complaints/communication to the relevant treaty body regarding a breach of human rights. Late last year we saw the first Australian individual communication to the CEDAW committee lodge by Juanita McLaren with the support of the National Council of Single Mothers and their Children, regarding changes to the parenting payments, arguing they violate her rights to social security, family benefits and non-discrimination.
· There are also independent thematic and country experts, known as Special Rapporteurs, appointed under special procedure mechanisms to investigate monitor, advise and publicly report on specific human rights issues.
While Australia’s approach to the implementation of human rights has been ad hoc and fractured, and we still don’t have a Bill or Charter of Human Rights at a national level, there are a range human rights protections recognised in our legal framework – for example, the Sex Discrimination Act is a direct response to CEDAW. In addition, there are a range of mechanisms that provide some accountability and checks on policy and law reform, including, for example, the powers of the Australian Human Rights Commission to conciliate individual complaints and to undertake independent inquiries.
Another important mechanism was established by the Human Rights (Parliamentary Scrutiny) Act 2011, which created a new model of pre-legislative human rights scrutiny of proposed Commonwealth laws. This Act established two important new mechanisms of accountability: first, there is now a requirement that a statement of compatibility with Australia’s international human rights commitments must accompany all proposed laws when introduced into Parliament; and second, the establishment of the Parliamentary Joint Committee on Human Rights (PJCHR) which regularly reports to the Parliament on the compatibility of proposed laws with human rights.
In Victoria, we are fortunate to have the Charter of Human Rights and Responsibilities, and in the decade since its introduction there have been significant advances in the promotion and protection of human rights in Victoria. However, as the 2015 Review of the Charter found, there is still much work to be done to improve decision-making and human rights outcomes, and building a stronger human rights culture among public authorities.
The Victorian Charter protects human rights in Victoria in three main ways.
1. Public authorities, including local government and Victoria Police, must act in ways that are compatible with human rights, such as taking relevant human rights into account when they are making decisions.
2. Human rights must be taken into account when making new laws.
3. Courts must interpret and apply all laws compatibly with human rights.
The ‘how’: a human rights-based approach to process
Human rights is fundamentally an empowerment-based model as distinct from a charity or welfare model. The human rights framework demands that those who are impacted by decisions are involved in making them - aptly articulated in the slogan ‘Not about us, without us!’
A common confusion flows from the mistaken assumption that there is ONE human rights based approach. It can be expected that governments or NGOs may use different approaches for different areas of work in different contexts.
However, the concept of human rights-based approaches (HRBA) can be summarised in five legal principles, sometimes referred to by the acronym PANEL:
- Participation in one's own development (as a right and not just as best practice)
- Accountability of duty-bearers to rights-holders (for process and impact)
- Non-discrimination, equality and prioritisation of vulnerable groups
- Empowerment of rights holders
- Law – or the express linkage of the legal system to the international human rights standards, with progressive realisation of rights and non-retrogression
Welfare vs Rights
A significant difference between a human rights-based approach and other traditional approaches to service delivery (such as needs-based or welfare models) is that poverty is viewed as a result of disempowerment and exclusion. Therefore, service participants are not objects of charity but rights-holders that have a right to health, food, education etc. and are experiencing structural barriers to the enjoyment and fulfilment of those rights.
A human rights-based approach explicitly recognises that there are systemic and structural barriers that prevent some individuals from enjoying the same opportunities in life as others. A human rights approach also specifically highlights the human rights entitlements of people and the corresponding obligations of governments. It promotes empowerment, participation and capacity building with local communities so that vibrant civil societies can hold their governments to account.
According to the United Nations Development Program, a human rights-based approach enables better development outcomes by analysing and addressing the inequalities, discriminatory practices and unjust power relations that often obstruct human development. Therefore, a human rights-based approach also focuses on the most marginalised and disadvantaged in society as their human rights are most widely denied or left unfulfilled. A human rights-based approach is as much about how development is done as what is done.
It may therefore seem that a human rights approach is similar to an empowerment approach; however, there are important differences. Although empowerment and human rights emphasise people as agents of change rather than as beneficiaries, the human rights-based approach requires a stronger focus on the obligations of the duty bearer (governments). Alternately, an empowerment approach tends to focus on individual capacities rather than the societal contexts, a human rights-based approach overtly looks to government structures and institutions, legislative and administrate regimes to embed rights.
As such, a human rights approach to our work demands that we are not only delivering basic needs services (provision of food, shelter), and even empowerment initiatives (which might aim to increase capacity of community members to hold duty bearers to account), but that we also engage in and integrate the five principles of a human-rights based approach into our own organisational policies, program design, evaluation, advocacy and communications.
To summarise, a human rights-based approach to gender equality provides unique opportunities and leverages for better law reform, policy development and service delivery practice. Employing a human rights-based approach requires us to focus not just on ‘what’ we seek to achieve but importantly on the ‘how’ we go about it. It is a vital tool for advancing human rights for women and girls in Australia.
 Louise Chappell, Deborah Brennan and Kim Rubenstein, ‘Australian Intergovernmental Relations: A Gender and Change Perspective’, in Paul Kildea, Andrew Lynch and George Williams (eds) Tomorrow’s Federation: Reforming Australian Government (2012), 228, at 228.
[ii] International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), International Convention on the Elimination of Racial Discrimination (1965), Convention on the Elimination of Discrimination against Women (1979), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984), Convention on the Rights of the Child (2000), International Convention on the Rights of Persons with Disabilities (2006).