The Law in Focus

The Law in FocusThe Law in Focus

WomenWomen

Status under the lawStatus under the law

Status has changed significantly Status has changed significantly because of changes in community because of changes in community values & ethicsvalues & ethics

Historically women were child carers & Historically women were child carers & homemakershomemakers

Roles determined by marital & social Roles determined by marital & social statusstatus

Women had very few legal rights & were Women had very few legal rights & were controlled by their husbands - controlled by their husbands - unito carounito caro

Changing Status of women under Changing Status of women under the lawthe law

Suffrage – NSW & Federal 1902Suffrage – NSW & Federal 1902 Sit on Juries – 1947. Sit on Juries – 1947. Jury ActJury Act 1977 1977 (NSW)(NSW)

exemption on basis of gender no longer exemption on basis of gender no longer allowedallowed

Own property – Own property – Married Women’s Property Married Women’s Property Act 1893Act 1893 (NSW) (NSW)

Enter contracts - Enter contracts - Married Women’s Property Married Women’s Property Act 1893Act 1893 (NSW) (NSW)

Litigation - Litigation - Married Persons (Property and Married Persons (Property and Tenants) Act 1901Tenants) Act 1901 (NSW) (NSW)

Entry into certain professions – 1918 Entry into certain professions – 1918 onwards women able to practise as lawyersonwards women able to practise as lawyers

Changing Status of women under Changing Status of women under the law (cont.)the law (cont.)

Access higher education – early twentieth Access higher education – early twentieth centurycentury

Equal pay for equal work – 1972 for most Equal pay for equal work – 1972 for most women, but granted in 1959 to NSW women, but granted in 1959 to NSW teachersteachers

Social security – widows pension – Social security – widows pension – War War Pension Act 1914Pension Act 1914, non-war widows 1926 & , non-war widows 1926 & full widows pension full widows pension Widows Pension ActWidows Pension Act 1942 (Cth). Child endowment paid from 1942 (Cth). Child endowment paid from 1941. 1941. States Grants (Deserted Wives) ActStates Grants (Deserted Wives) Act 1968 (Cth) – welfare for single parents not 1968 (Cth) – welfare for single parents not covered by widows pension.covered by widows pension.

Changing Status of women under Changing Status of women under the law (cont.)the law (cont.)

Custody of children – 1916 women given Custody of children – 1916 women given right to have custody of their children after right to have custody of their children after death of children’s father. 1934 court death of children’s father. 1934 court could order custody to either parent under could order custody to either parent under Guardianship of Infants ActGuardianship of Infants Act 1934 (NSW). 1934 (NSW).

Sexual relations – Age of consent Sexual relations – Age of consent increased to 16 under increased to 16 under Crimes (Girls’ Crimes (Girls’ Protection) ActProtection) Act 1910 (NSW). 1910 (NSW).

Crimes ActCrimes Act 1900 (NSW) gave women right 1900 (NSW) gave women right to allow women to have husbands charged to allow women to have husbands charged with sexual assault.with sexual assault.

Mechanisms for achieving justiceMechanisms for achieving justice

Justice can be achieved through Justice can be achieved through common or statute law – legal common or statute law – legal mechanismsmechanisms

Justice can also be achieved through Justice can also be achieved through non-legal mechanisms such as trade non-legal mechanisms such as trade unions, lobby groups, welfare groups unions, lobby groups, welfare groups & government agencies.& government agencies.

Legal MechanismsLegal Mechanisms

Discrimination legislation:Discrimination legislation: Anti-Discrimination Act 1977 (NSW)Anti-Discrimination Act 1977 (NSW) Sex Discrimination Act 1984 (Cth)Sex Discrimination Act 1984 (Cth) Human Rights & Equal Opportunities Human Rights & Equal Opportunities

Commission Act 1986 (Cth)Commission Act 1986 (Cth) Affirmative Action (Equal Employment Affirmative Action (Equal Employment

Opportunity for Women) Act 1986 (Cth) Opportunity for Women) Act 1986 (Cth) amended to become amended to become Equal Opportunity for Equal Opportunity for Women in the Workplace Act 1999 (Cth)Women in the Workplace Act 1999 (Cth)

Other legislation (mentioned earlier)Other legislation (mentioned earlier)

Anti-discrimination legislationAnti-discrimination legislation

Women are protected under anti-Women are protected under anti-discrimination legislation as the law discrimination legislation as the law states that women cannot be treated less states that women cannot be treated less favourably solely on the basis of gender.favourably solely on the basis of gender.

Protection is also provided on the basis of Protection is also provided on the basis of marital status and sexual orientation.marital status and sexual orientation.

It is also unlawful for sexual harassment It is also unlawful for sexual harassment to occur, although under-reporting occurs.to occur, although under-reporting occurs.

Anti-discrimination legislation casesAnti-discrimination legislation cases

Enterprise agreements cannot be discriminatory Enterprise agreements cannot be discriminatory under legislationunder legislation

1994 case against BHP where women were 1994 case against BHP where women were restricted in employment opportunities during the restricted in employment opportunities during the 70’s & 80’s to clerical work, canteen duties and 70’s & 80’s to clerical work, canteen duties and cleaning, when men were being employed in cleaning, when men were being employed in diverse areas. Compensation was paid to around diverse areas. Compensation was paid to around 700 women.700 women.

Australian Iron & Steel Pty. Ltd. v BanovicAustralian Iron & Steel Pty. Ltd. v Banovic (1989) (1989) – last on first off policy not equal between – last on first off policy not equal between gendersgenders

Hunt v RailCorpHunt v RailCorp (2007) – sexual harassment in (2007) – sexual harassment in workplace led to payout of $20Kworkplace led to payout of $20K

Anti-discrimination legislation casesAnti-discrimination legislation cases

Leves v. HainesLeves v. Haines (1986) – removal of sex (1986) – removal of sex stereotypes for subject selection in schoolsstereotypes for subject selection in schools

Hill v. Water Resources CommissionHill v. Water Resources Commission (1985) – sexual harassment in the (1985) – sexual harassment in the workplace illegal - $35Kworkplace illegal - $35K

Gilroy v. AngelovGilroy v. Angelov (2000) – sexual (2000) – sexual harassment in workplace where employer harassment in workplace where employer failed to act - $24Kfailed to act - $24K

Gardiner v. Netball AustraliaGardiner v. Netball Australia (2001) – (2001) – pregnant netballer stood down but pregnant netballer stood down but voluntary assumption of risk voluntary assumption of risk

Non-legal mechanismsNon-legal mechanisms

Women’s Legal CentreWomen’s Legal Centre – gives free – gives free legal advice to women via a hotline. legal advice to women via a hotline. Also makes referrals.Also makes referrals.

Domestic Violence Advocacy Service Domestic Violence Advocacy Service (DVAS)(DVAS) – provides representation & – provides representation & legal advice for women.legal advice for women.

Women’s Community Health CentresWomen’s Community Health Centres – medical and economic advice, – medical and economic advice, welfare, counseling & referral.welfare, counseling & referral.

Non-legal mechanisms (cont.)Non-legal mechanisms (cont.)

Women’s refugesWomen’s refuges – supervised emergency – supervised emergency accommodation for women and children accommodation for women and children fleeing from abusive relationships.fleeing from abusive relationships.

NSW Department of HousingNSW Department of Housing – public – public housing for low income families.housing for low income families.

CentrelinkCentrelink – providing financial assistance – providing financial assistance to women.to women.

Department of Community ServicesDepartment of Community Services – – helps families in trouble (economic & helps families in trouble (economic & social)social)

Non-legal mechanisms (cont.)Non-legal mechanisms (cont.)

Lobby groupsLobby groups – Women’s Electoral – Women’s Electoral Lobby aims to have more women in Lobby aims to have more women in parliament and increase female parliament and increase female involvement in politics.involvement in politics.

Trade unionsTrade unions – helps to protect the – helps to protect the rights of women in the workplace and rights of women in the workplace and provide group pressure as a provide group pressure as a bargaining tool.bargaining tool.

Responsiveness of the Legal Responsiveness of the Legal SystemSystem

Gender bias within the legal system – first Gender bias within the legal system – first graduate Ada Evans 1902 but couldn’t graduate Ada Evans 1902 but couldn’t practise until 1921 (practise until 1921 (Women’s Legal Status Women’s Legal Status Act 1918Act 1918))

Unequal law graduates until 1980Unequal law graduates until 1980 Less female judges and magistratesLess female judges and magistrates

1992 SA Judge found it acceptable for a husband 1992 SA Judge found it acceptable for a husband to use ‘rougher than usual handling’ of his wife to to use ‘rougher than usual handling’ of his wife to persuade her to have sex (R v D.J. Johns, 1992)persuade her to have sex (R v D.J. Johns, 1992)

1993 Vic Judge found that rape victim was less 1993 Vic Judge found that rape victim was less traumatised as she was unconscious due to her traumatised as she was unconscious due to her neck being slashedneck being slashed

Other issuesOther issues Domestic Violence - violence is still an issue in Domestic Violence - violence is still an issue in

Australia and campaigns (Violence Against Australia and campaigns (Violence Against Women: Australia Says No) educating society Women: Australia Says No) educating society about the different forms assault, sexual about the different forms assault, sexual assault and harassment can take. AVOs and assault and harassment can take. AVOs and family court injunctions have been developed family court injunctions have been developed to protect women at risk.to protect women at risk.

Battered wife syndrome – being recognised Battered wife syndrome – being recognised by court as a provocation to violence by by court as a provocation to violence by women against their spouses. Landmark case women against their spouses. Landmark case in NSW in NSW R v Hickey (1992). R v Hickey (1992). Heather Osland Heather Osland Case – charged with murder and battered wife Case – charged with murder and battered wife syndrome not taken as a cause of syndrome not taken as a cause of provocation.provocation.

Other Issues (cont.)Other Issues (cont.)

Reverse discrimination – negative Reverse discrimination – negative attitudes exist towards women due attitudes exist towards women due to the legislation that has been to the legislation that has been developed to provide protection. developed to provide protection. Other groups within society can feel Other groups within society can feel embittered towards women for embittered towards women for ‘special treatment’.‘special treatment’.

Attitudes towards domestic violence Attitudes towards domestic violence from police & judiciary – no police from police & judiciary – no police action on 73% of breached AVO’saction on 73% of breached AVO’s

Effectiveness of legal and non-Effectiveness of legal and non-legal responseslegal responses

RRARE PAMARE PAM RResource efficiencyesource efficiency

CostCost is high to bring legal action, women have limited is high to bring legal action, women have limited resources, can apply for legal aid but means test and resources, can apply for legal aid but means test and merit test criteria must be satisfied. 87% of single merit test criteria must be satisfied. 87% of single parent families are headed by women, who earn less parent families are headed by women, who earn less than men. This makes financial access to the legal than men. This makes financial access to the legal system difficult. Gap between males & females system difficult. Gap between males & females around $300 per week around $300 per week (‘Why men are paid more’ (‘Why men are paid more’ Herald Sun, Oct. 2006). Herald Sun, Oct. 2006). A reliance upon non-legal A reliance upon non-legal methods becomes more important, such as lobby methods becomes more important, such as lobby groups, media and unions in achieving justice for groups, media and unions in achieving justice for womenwomen..


RResource Efficiencyesource Efficiency

Time delays between the incident and legal action pose a risk to women as harassment can escalate and the impact can become irreparable causing psychological damage and loss of income (Hill v Water Authority (2007); Hunt v. Railcorp (2007)). In the case of domestic violence, a women is left in danger until ADVO’s can be formalised and non-legal responses such as women’s shelters can offer protection for women from abusive partners sooner than legal responses.


AAccessibilityccessibility – women have the same access to legal – women have the same access to legal representation although are limited by financial representation although are limited by financial constraints as mentioned in cost. constraints as mentioned in cost. “Expanding Access to “Expanding Access to Justice for Older Women: Summary of Research” Dainow, Justice for Older Women: Summary of Research” Dainow, June 2005June 2005 outlines that women feel lawyers don't explain outlines that women feel lawyers don't explain case proceedings well, lawyers are insensitive to violence case proceedings well, lawyers are insensitive to violence against women (VAW) issues on an emotional level and against women (VAW) issues on an emotional level and not properly trained in VAW on a legal level and that not properly trained in VAW on a legal level and that Legal Aid is too restricted.Legal Aid is too restricted.

Other difficulties women face in terms of access to the Other difficulties women face in terms of access to the legal system are in terms of language barriers for those legal system are in terms of language barriers for those from NESB and cultural restrictions in taking legal action from NESB and cultural restrictions in taking legal action against husbands.against husbands.

Many non-legal mechanism have interpreters and are Many non-legal mechanism have interpreters and are lower in cost. This can make them more effective as a lower in cost. This can make them more effective as a result than legal responses, although the actions made result than legal responses, although the actions made remain unbinding and difficult to enforce.remain unbinding and difficult to enforce.


RResponsiveness esponsiveness –– legal responses legal responses have increased to issues such as have increased to issues such as workplace discrimination and workplace discrimination and violence against womenviolence against women


EEnforceabilitynforceability – difficult to enforce breaches – difficult to enforce breaches when they are not reported (3% of females when they are not reported (3% of females in relationships report violence in relationships report violence Crime & Crime & Justice Bulletin – Justice Bulletin – “Trends and patterns in domestic violence assaults” Oct. 2005).

This occurs in domestic violence cases as This occurs in domestic violence cases as well as workplace harassment. Under-well as workplace harassment. Under-reporting due to a fear of reprisals and reporting due to a fear of reprisals and further abuse, or more difficult situations at further abuse, or more difficult situations at work. Once reported, women sometimes work. Once reported, women sometimes drop charges, but if all OK, then laws can drop charges, but if all OK, then laws can be enforced.be enforced.


PProtection of individual rightsrotection of individual rights – effective in that – effective in that monetary compensation can be exacted from monetary compensation can be exacted from perpetrators (perpetrators (Hunt v RailCorpHunt v RailCorp (2007) (2007) awarded awarded Hunt $20,000) , but ineffective as real harm can Hunt $20,000) , but ineffective as real harm can be done to women because of a lack of support be done to women because of a lack of support in courts and by police in regards to ADVO’s. in courts and by police in regards to ADVO’s. Individual rights supported in Antidiscrimination Individual rights supported in Antidiscrimination legislation, but court action expensive and not legislation, but court action expensive and not expedient.expedient.

Non-legal responses such as media are quick to Non-legal responses such as media are quick to show abuses of individual rights and can be show abuses of individual rights and can be effective in highlighting the issue, however it is effective in highlighting the issue, however it is limited in its ability to seek compensation.limited in its ability to seek compensation.


MMeeting society’s needs eeting society’s needs – Australian society demands that Women – Australian society demands that Women are treated fairly in all aspects of life. It is through this expectation are treated fairly in all aspects of life. It is through this expectation of society that law makers are bound to pass legislation which of society that law makers are bound to pass legislation which tries to address the inequality still faced by women in today’s tries to address the inequality still faced by women in today’s society. More female politicians and currently a female Prime society. More female politicians and currently a female Prime Minister (Julia Gillard) will also assist law makers to be sensitive to Minister (Julia Gillard) will also assist law makers to be sensitive to the needs of half the voters in Australia.the needs of half the voters in Australia.

CEO’s like Gail Kelly of St George Bank have been able to install CEO’s like Gail Kelly of St George Bank have been able to install family friendly work policies as a result of being in a position to family friendly work policies as a result of being in a position to make these changes and provides an example of a non-legal make these changes and provides an example of a non-legal response.response.

Lobby groups have helped to continue to push for the law to meet Lobby groups have helped to continue to push for the law to meet society’s demands in accepting legal defences such as battered society’s demands in accepting legal defences such as battered women’s syndrome women’s syndrome (R v Hickey (1992) (R v Hickey (1992) which was the first case to which was the first case to recognise battered women’s syndrome.recognise battered women’s syndrome.


EEqualityquality – aim of the law is to provide – aim of the law is to provide equality especially through legislation such equality especially through legislation such as as Antidiscrimination Act 1977Antidiscrimination Act 1977 (NSW), (NSW), however equality is not always ensured by however equality is not always ensured by the law due to under reporting of incidents. the law due to under reporting of incidents. Equality of gender in the legal system is Equality of gender in the legal system is being addressed as NSW has only 18% of being addressed as NSW has only 18% of females with bar membership- (‘States set females with bar membership- (‘States set pace on bar opportunity’ The Australian, pace on bar opportunity’ The Australian, July, 2009). July, 2009). Gardiner v. Netball AustraliaGardiner v. Netball Australia (2001) shows equity doesn’t exist even in (2001) shows equity doesn’t exist even in ‘female oriented’ sports as a pregnant ‘female oriented’ sports as a pregnant netballer was stood down because of netballer was stood down because of perceived risk.perceived risk.

Documents

The Law in Focus