CamSoc Winter Feast
Cambridge Society of NSW
Sydney
2 September 2015

Shattering Glass Ceilings:  Benefiting from Diversity 
The Hon Justice Melissa Perry
Justice of the Federal Court of Australia
 “Call Me Emilios”
In his autobiography Call Me Emilios, Emilios Kyrou describes his parents’ courageous decision to move to a foreign land.  That land was almost as far away as it was possible to be from their family and crop fields on the tiny island, Sfikia, in northern Greece.  They sought to escape poverty and to provide a better future for their young family, including Emilios then aged 6.  
As a young migrant growing up in Victoria, Emilios was all too often told to “go back to your own country” when passing strangers in shopping centres, on trains and buses, or in the park.  He explains how he became uneasy around people he didn’t know because he feared that they would turn on him and torment him.  He wished he was invisible.  When children at his primary school pitched racist taunts because of his name, his hair cut, his homemade clothes and the food in his lunchbag, he decided to adopt the “protection” of the Anglo-sounding name of John.  
During high school, he was generally successful at concealing his Greek ethnicity by keeping a low profile, choosing his friends carefully, not speaking up in class and “dumbing down”, and avoiding situations where he would need to mention his surname.  He was particularly afraid of Friday afternoons when he would accompany his mother to the Coles supermarket, fearing that someone from school might catch him talking to his mother in Greek.  
However, as he grew older and more confident in himself, he came to appreciate how brave his parents had been when they decided to take the long voyage to Australia, and that any hardship he was enduring paled into insignificance beside his parents’ daily struggles.  He also came to recognise that aspects of Greek culture, such as the strong focus on family and community, had much to commend them; and that there were advantages in speaking two languages and being able to draw upon the best of Greek and Australian culture.  In time, he came to reclaim with pride his identify in asking people again to call him Emilios. 
I am fortunate now to work with his Honour, Justice Emilios Kyrou of the Supreme Court of Victoria, on the Judicial Council of Cultural Diversity.  The Council is an advisory body formed to assist Australian courts and tribunals to respond positively to the needs of our culturally and linguistically diverse population in accessing justice, including addressing particular issues that arise with respect to our indigenous peoples.  
Justice Kyrou’s story resonates strongly with me.  My father was the son of migrants with my grandfather migrating to Australia as a young man from Cyprus and my grandmother from Liverpool in England. Both came from seafaring families.  Like many migrant families at that time, my grandfather, who worked on the wharves at Port Adelaide, decided to anglicise his name from “Pieris” to “Perry”.  In my father’s case, he was also christened “John”.  
One of the great gifts that my mother gave to my father was that, through her love of history and travel, and her passion for embracing other cultures, my father came to embrace and be proud of his Greek heritage.  And as my father embraced his heritage, so he began to give back to the Greek community. This was particularly so in his later years after he was appointed as a judge of the Supreme Court of South Australia.
My mother also instilled in me great pride in my Greek heritage.  Indeed, as a little girl so proud was I of the achievements of the birthplace of democracy that I can see myself reflected in the character Gus Portokalos in My Big Fat Greek Wedding, who found a Greek derivation to every word – “Give me a word”, he said, “any word, and I show you that the root of that word is Greek”.  Even the word “kimono” did not stump him for long!
What I take from the stories of Emilios and my father is that it is only when we can take pride in who we are and do not feel that we must be invisible that we can achieve our true potential to the betterment of society. 
The Role of Australia’s Anti-Discrimination Laws
When I reflect on the social changes we have experienced in Australia since Justice Kyrou’s childhood, I believe we have become a more tolerant, accepting and welcoming society.  The enactment of Australia’s anti-discrimination laws stands out as a critical juncture in Australia’s multicultural evolution.  These laws were borne of a period of great change in Australian history, where our domestic laws sought to catch-up and reflect the fundamental values that the international community accepted as the minimum standard.  In 1966, the Public Service Act 1902 was amended so that women like my mother who were employed in the Australian Public Service no longer had to resign from their positions when they married.  The early 1970s then saw a dynamic period of law reform that included no-fault divorce, environmental protection legislation, and the taking of the final steps to dismantle the White Australia Policy by removing race as a factor in Australia’s immigration provisions.  More so perhaps than ever before in Australian history, the law was being used as a positive force for social change.  
The first anti-discrimination legislation in Australia was the Prohibition of Discrimination Act passed in South Australia in 1966.   The South Australian Parliament was quick to act as the International Convention on the Elimination of All Forms of Racial Discrimination had been unanimously adopted by the UN General Assembly less than a year earlier in December 1965 (106 votes to none).  The need to guard against some of the evils of racial discrimination had long been recognised in South Australia, although tragically not acted upon as it might have been in the colony’s early days.  It is not well known, but the Letters Patent erecting and establishing the then province of South Australia in 1836 provided that nothing in the Letters Patent “shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment … of any Lands therein now actually occupied or enjoyed by such Natives…”.  
In Lionel Murphy’s biography, author Jenny Hocking refers to a letter sent from Professor Fred Hollows to Senator Murphy, then Commonwealth Attorney-General, describing Professor Hollows’ visit to the small town of Enngonia, located 100km North of Bourke and close to the New South Wales border with Queensland.  On 9 November 1973, Hollows and his team arrived in Enngonia where he was carrying out a trachoma eradication program through the Bourke District Hospital.  The only accommodation in Enngonia was the Oasis Hotel.  On arriving, Hollows was approached by the licensee and told that the Aboriginal members of his party would not be served in the Hotel’s bar and lounge area.  If they required refreshments, he said, they must walk to the back of the Hotel where they would be served through a small hatchery whilst remaining outside.  Refusing to remain at the Hotel, Professor Hollows wrote to Senator Murphy stating that the “discrimination makes my work both as an ophthalmologist to the total community and as a person especially interested in improving Aboriginal health very difficult”. Twelve days later, the Racial Discrimination Bill was introduced in the Australian Parliament which would make unlawful the very conduct employed by the Licensee at the Oasis Hotel.
Nonetheless, at the time, the legislation was seen by some as inadequate in addressing the roots of racism in Australian society.  A commentator writing in 1975 when the Racial Discrimination Act became law, observed that:
“Discrimination is not a mere growth upon the body politic which can be neatly removed by skilful legislative surgery.  Rather, it is a symptom of an ill that is within that body, a manifestation of a state of ill-health which requires treatment as a whole”.  
It cannot be denied that the Act has not eradicated racial discrimination, but to expect it to do so would be unrealistic.  Nonetheless, as the Race Discrimination Commissioner wrote last year in reflections on the fortieth anniversary of the Act, “While no law can ever eradiate the social evil of racism – no law can ever banish hatred, ignorance and arrogance – an instrument like the Racial Discrimination Act does make us stronger and more united.”  
The Act also heralded a new era for anti-discrimination protections with largely bipartisan support.  In 1977 the Attorney-General, Bob Ellicott, introduced the Human Rights Commission Bill and announced the intention to introduce Sex Discrimination legislation.  Four years later in 1981, Senator Susan Ryan, the first female Senator for the ACT and third woman to hold a Cabinet post in a Federal Government, introduced a Sex Discrimination Bill as a private member’s Bill.  That Bill was designed to give effect to Australia’s international obligations.  There seems little doubt that Senator Ryan’s Bill was motivated in part by her own experience.  Her teaching career was cut short when, after becoming engaged, she was told that she could not complete her studies and would have to repay her scholarship funds.  Her male peers, however, were free to marry and continue their studies on full scholarships.  
The road to erect these reforms was not always smooth.  It was not until 1984 that Senator Ryan’s vision of a federal law rendering discrimination on the grounds of sex unlawful was realised, although such laws existed earlier at State and Territory level.  The Racial Discrimination Act barely survived a challenge to its constitutional validity in 1982 in the High Court.  And there was a long and heated debate during 1983 over the Sex Discrimination Bill, with warnings of social disaster and an 80,000 person petition opposing the Bill.   This suggests that laws such as these sought to shape, rather than necessarily to reflect, popular opinion at the time, capturing the aspirational values of a more equal and fair society. 
The first major litigation under this suite of new laws was Ansett Transport Industries v Wardley decided in 1980.  The High Court held that Deborah Wardley’s application for employment as a trainee air pilot could not be rejected because of her gender.  While the Airline Pilot’s Agreement was deemed to be an award under Commonwealth law and did not constrain the airline’s ability to choose its employees or terminate their employment, that did not exclude the operation of the Victorian Equal Opportunity Act.  The High Court held that there was no inconsistency between the State and Commonwealth laws.
Nonetheless, as Professor Beth Gaze remarked on the 25th anniversary of the Sex Discrimination Act, the Ansett case illustrates all too well the difference between a legal victory and broad social change.  It has been 35 years since Ms Wardley won in the High Court.  Yet sadly, I suspect that most of us will have travelled only rarely on a commercial flight with a female pilot captain.  In fact, it was only last year, with the appointment of Georgina Sutton at Jetstar, that Australia saw its first female chief pilot at a major airline.
The Role of Education
The limited capacity of law alone to effect social change was recognised when these laws were enacted and so typically, one of the express functions of anti-discrimination laws is education.  This function is clearly essential if the irrational and unconscious fears that drive racism are to be addressed.  It is only with the elimination of such fears that an environment may be created in which mutual respect between people of different cultural and ethnic backgrounds can develop to the benefit of each of us and of society as a whole.  We all have much to learn from each other. 
That learning is enhanced when the cultural diversity within society is reflected in the composition of the different communities within which we mix, both professionally and personally.  My experience at Cambridge as a postgraduate enabled me to develop friendships with other students from many different countries, and to enjoy and appreciate aspects of their cultures.  For example, I recall having great conversations with my friend Ghanga from India over traditional fare from his homeland which he generously shared with me and other students.  The story of Ghanga’s family was a particularly inspiring one, with Ghanga and his siblings pursuing studies through scholarships in different disciplines in several of the great universities across the world.
My experience in native title litigation also exposed me to the richness and complexity of societies that have a symbiotic and spiritual relationship with the land  - a relationship which imbues every aspect of their culture.  The history of Australia which I learned though this work was not the history that I had been taught at school.  
In his book, First Footprints, the anthropologist Scott Cane describes the incredible sustainability practices and engineering feats of Australia’s first peoples.  These include large-scale drainage systems extending over several kilometres constructed 9,000 years ago.  These constructions used natural elevations to create a hydraulic system which moved water at swift speeds between swamps so as to flush eels and fish into drains where they were caught in funnel-shaped wicker traps.  The drainage system had the added advantage of draining water from plains during floods, and maintaining water supplies during periods of drought.  It was a system designed to control water and harvest fish - perhaps even the first aquaculture in human history.  
What is more commonly known is the use of fire by Aboriginal and Torres Strait Islander people as a land-management tool.  Fire aided communication, improved access, maximised hunting and gathering, and maintained and extended the productive human habitat.  
In addition to environmental management, there is much to be learnt from the diversity of indigenous culture in Australia.  The extensive trade routes across the Australian arid zone before colonisation were possible because of the open social networks and inclusive territoriality of the people who live there.  Scott Cane describes the pre-colonisation indigenous society as a society of inclusion, kinship, flexible territoriality and shared tradition: one people with many personalities, one language with many dialects, and one religion with many sects. 
Benefiting from Diversity in the Workplace
Finally, there is also much to be learnt and benefits to be gained from diversity in the workplace.  In 2013, the Diversity Council Australia launched Capitalising on Culture - a National Survey of Australian Business Leaders.  Its research showed that people with overseas immersion experience and multiple cultural identities display stronger than average creativity, problem solving and product development abilities.  Diverse teams are better able to solve complex problems, with one study of 28 teams finding that those teams that were heterogeneous solved complex tasks better than the homogeneous teams.  Not only that, but companies with high executive and board diversity had return on equity an average of 53% higher than those with low levels of diversity.  Furthermore, it has been said that “harnessing cultural diversity in Australia and from abroad will be essential to meeting the challenges of skill shortages, global labour market competition and an ageing population.”
Unfortunately, we are not seeing enough businesses and organisations benefit from what diversity and equal opportunity can bring.  It was reported this year in March that there were fewer women at the helm of Australia’s top 200 companies, as chairperson or CEO, than there were men named Peter in those positions.  I’m sure you’re all aware of the statistics.  Similarly, in 2013, 22 per cent of directors on ASX 200 Boards were culturally diverse (that is, from a non-anglo-celtic background), compared to 32 per cent of the general Australian population.  And only 4 per cent of directors on ASX 200 Boards have Asian cultural origins, compared with 10 per cent of the general Australian population.  
And it’s not just commercial business seeing these gaps.  More than 50 per cent of science PhDs and early career graduates are women, yet only 17 per cent of senior science academics are women.  As Dr Rebecca Johnson, director of the Australian Museum Research Institute said, “An ecosystem is nothing without its diversity, and the same could be applied to science.”  
The figures are similar in the legal industry.  I have spoken publicly on several occasions on the need for improvement and vigilance in increasing representation of women at the Bar - not just in terms of numbers, but also in terms of the length of cases, types of matters and speaking roles given to women barristers.  It must not be forgotten that discrimination can play out in indirect or insidious ways.
I believe that a proactive approach is required if we are to see a real difference in gender equality and cultural diversity.  We need to be proactive in our desire to learn from diversity, and self-reflective about our biases and prejudices.  None of us are immune from unconscious bias.  In fact, the other day on a judicial review application, I assumed much to my embarrassment that the Tribunal member was a man, only to be corrected by counsel appearing.  
We must also be conscious of prejudices that exist in the institutions and industries in which we work.  For example, our workplaces too often reward leadership styles that may over-value self-promotion and assertiveness, while undervaluing or misinterpreting the deference and respect for seniority which is common in Asian leadership styles.  
Concluding Thoughts
Being honest about our own biases may not have the same impact on social change as the enactment of the Racial Discrimination Act or ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.  But it is important that we do not underestimate the ripple effect of small changes and the capacity for each of us to be “agents for change”.  After all, it was a small gesture from a woman who noticed a Muslim woman quietly take off her head-covering on public transport during the Sydney siege in December 2014 that sparked an incredible movement of inclusion with the “I’ll ride with you” hashtag on twitter.  
Equally in her own way, my mother contributed to a more inclusive society through her rejection of prejudices at the time and teaching my father to value his cultural heritage.  I owe both her and my father a great debt.  I have little doubt that I would not have achieved all that I have been fortunate to achieve if I had not been inspired by my parents and if I had not been that little girl many years ago who would refuse to give up, stamping her foot and proclaiming loudly “But I am a Greek!”
We are all the product of multiculturalism and I truly believe that we are better able to achieve all that we can individually and as a society if we embrace and celebrate the rich diversity of cultures which comprise our nation.