The Law in Focus Women

Status under the law Status has changed significantly because of changes in community values & ethics Status has changed significantly because of changes in community values & ethics Historically women were child carers & homemakers Historically women were child carers & homemakers Roles determined by marital & social status Roles determined by marital & social status Women had very few legal rights & were controlled by their husbands - unito caro Women had very few legal rights & were controlled by their husbands - unito caro

Changing Status of women under the law Suffrage – NSW & Federal 1902 Suffrage – NSW & Federal 1902 Sit on Juries – Jury Act 1977 (NSW) exemption on basis of gender no longer allowed Sit on Juries – Jury Act 1977 (NSW) exemption on basis of gender no longer allowed Own property – Married Womens Property Act 1893 (NSW) Own property – Married Womens Property Act 1893 (NSW) Enter contracts - Married Womens Property Act 1893 (NSW) Enter contracts - Married Womens Property Act 1893 (NSW) Litigation - Married Persons (Property and Tenants) Act 1901 (NSW) Litigation - Married Persons (Property and Tenants) Act 1901 (NSW) Entry into certain professions – 1918 onwards women able to practise as lawyers Entry into certain professions – 1918 onwards women able to practise as lawyers

Changing Status of women under the law (cont.) Access higher education – early twentieth century Access higher education – early twentieth century Equal pay for equal work – 1972 for most women, but granted in 1959 to NSW teachers Equal pay for equal work – 1972 for most women, but granted in 1959 to NSW teachers Social security – widows pension – War Pension Act 1914, non-war widows 1926 & full widows pension Widows Pension Act 1942 (Cth). Child endowment paid from States Grants (Deserted Wives) Act 1968 (Cth) – welfare for single parents not covered by widows pension. Social security – widows pension – War Pension Act 1914, non-war widows 1926 & full widows pension Widows Pension Act 1942 (Cth). Child endowment paid from States Grants (Deserted Wives) Act 1968 (Cth) – welfare for single parents not covered by widows pension.

Changing Status of women under the law (cont.) Custody of children – 1916 women given right to have custody of their children after death of childrens father court could order custody to either parent under Guardianship of Infants Act 1934 (NSW). Custody of children – 1916 women given right to have custody of their children after death of childrens father court could order custody to either parent under Guardianship of Infants Act 1934 (NSW). Sexual relations – Age of consent increased to 16 under Crimes (Girls Protection) Act 1910 (NSW). Sexual relations – Age of consent increased to 16 under Crimes (Girls Protection) Act 1910 (NSW). Crimes Act 1900 (NSW) gave women right to allow women to have husbands charged with sexual assault. Crimes Act 1900 (NSW) gave women right to allow women to have husbands charged with sexual assault.

Mechanisms for achieving justice Justice can be achieved through common or statute law – legal mechanisms Justice can be achieved through common or statute law – legal mechanisms Justice can also be achieved through non- legal mechanisms such as trade unions, lobby groups, welfare groups & government agencies. Justice can also be achieved through non- legal mechanisms such as trade unions, lobby groups, welfare groups & government agencies.

Legal 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 Commission Act 1986 (Cth) Human Rights & Equal Opportunities Commission Act 1986 (Cth) Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) amended to become Equal Opportunity for Women in the Workplace Act 1999 (Cth) Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) amended to become Equal Opportunity for Women in the Workplace Act 1999 (Cth) Other legislation (mentioned earlier) Other legislation (mentioned earlier)

Anti-discrimination legislation Women are protected under anti- discrimination legislation as the law states that women cannot be treated less favourably solely on the basis of gender. Women are protected under anti- discrimination legislation as the law states that women cannot be treated less favourably solely on the basis of gender. Protection is also provided on the basis of marital status and sexual orientation. Protection is also provided on the basis of marital status and sexual orientation. It is also unlawful for sexual harassment to occur, although under-reporting occurs. It is also unlawful for sexual harassment to occur, although under-reporting occurs.

Anti-discrimination legislation cases Enterprise agreements cannot be discriminatory under legislation Enterprise agreements cannot be discriminatory under legislation 1994 case against BHP where women were restricted in employment opportunities during the 70s & 80s to clerical work, canteen duties and cleaning, when men were being employed in diverse areas. Compensation was paid to around 700 women case against BHP where women were restricted in employment opportunities during the 70s & 80s to clerical work, canteen duties and cleaning, when men were being employed in diverse areas. Compensation was paid to around 700 women. Australian Iron & Steel Pty. Ltd. v Banovic (1989) – last on first off policy not equal between genders Australian Iron & Steel Pty. Ltd. v Banovic (1989) – last on first off policy not equal between genders Hunt v RailCorp (2007) – sexual harassment in workplace led to payout of $20K Hunt v RailCorp (2007) – sexual harassment in workplace led to payout of $20K

Anti-discrimination legislation cases Leves v. Haines (1986) – removal of sex stereotypes for subject selection in schools Leves v. Haines (1986) – removal of sex stereotypes for subject selection in schools Hill v. Water Resources Commission (1985) – sexual harassment in the workplace illegal - $35K Hill v. Water Resources Commission (1985) – sexual harassment in the workplace illegal - $35K Gilroy v. Angelov (2000) – sexual harassment in workplace where employer failed to act - $24K Gilroy v. Angelov (2000) – sexual harassment in workplace where employer failed to act - $24K Gardiner v. Netball Australia (2001) – pregnant netballer stood down but voluntary assumption of risk Gardiner v. Netball Australia (2001) – pregnant netballer stood down but voluntary assumption of risk

Non-legal mechanisms Womens Legal Centre – gives free legal advice to women via a hotline. Also makes referrals. Womens Legal Centre – gives free legal advice to women via a hotline. Also makes referrals. Domestic Violence Advocacy Service (DVAS) – provides representation & legal advice for women. Domestic Violence Advocacy Service (DVAS) – provides representation & legal advice for women. Womens Community Health Centres – medical and economic advice, welfare, counseling & referral. Womens Community Health Centres – medical and economic advice, welfare, counseling & referral.

Non-legal mechanisms (cont.) Womens refuges – supervised emergency accommodation for women and children fleeing from abusive relationships. Womens refuges – supervised emergency accommodation for women and children fleeing from abusive relationships. NSW Department of Housing – public housing for low income families. NSW Department of Housing – public housing for low income families. Centrelink – providing financial assistance to women. Centrelink – providing financial assistance to women. Department of Community Services – helps families in trouble (economic & social) Department of Community Services – helps families in trouble (economic & social)

Non-legal mechanisms (cont.) Lobby groups – Womens Electoral Lobby aims to have more women in parliament and increase female involvement in politics. Lobby groups – Womens Electoral Lobby aims to have more women in parliament and increase female involvement in politics. Trade unions – helps to protect the rights of women in the workplace and provide group pressure as a bargaining tool. Trade unions – helps to protect the rights of women in the workplace and provide group pressure as a bargaining tool.

Responsiveness of the Legal System Gender bias within the legal system – first graduate Ada Evans 1902 but couldnt practise until 1921 (Womens Legal Status Act 1918) Gender bias within the legal system – first graduate Ada Evans 1902 but couldnt practise until 1921 (Womens Legal Status Act 1918) Unequal law graduates until 1980 Unequal law graduates until 1980 Less female judges and magistrates Less female judges and magistrates 1992 SA Judge found it acceptable for a husband to use rougher than usual handling of his wife to persuade her to have sex (R v D.J. Johns, 1992) 1992 SA Judge found it acceptable for a husband to use rougher than usual handling of his wife to persuade her to have sex (R v D.J. Johns, 1992) 1993 Vic Judge found that rape victim was less traumatised as she was unconscious due to her neck being slashed 1993 Vic Judge found that rape victim was less traumatised as she was unconscious due to her neck being slashed

Other issues Domestic Violence - violence is still an issue in Australia and campaigns (Violence Against Women: Australia Says No) educating society about the different forms assault, sexual assault and harassment can take. AVOs and family court injunctions have been developed to protect women at risk. Domestic Violence - violence is still an issue in Australia and campaigns (Violence Against Women: Australia Says No) educating society about the different forms assault, sexual assault and harassment can take. AVOs and family court injunctions have been developed to protect women at risk. Battered wife syndrome – being recognised by court as a provocation to violence by women against their spouses. Landmark case in NSW R v Hickey (1992). Heather Osland Case – charged with murder and battered wife syndrome not taken as a cause of provocation. Battered wife syndrome – being recognised by court as a provocation to violence by women against their spouses. Landmark case in NSW R v Hickey (1992). Heather Osland Case – charged with murder and battered wife syndrome not taken as a cause of provocation.

Other Issues (cont.) Reverse discrimination – negative attitudes exist towards women due to the legislation that has been developed to provide protection. Other groups within society can feel embittered towards women for special treatment. Reverse discrimination – negative attitudes exist towards women due to the legislation that has been developed to provide protection. Other groups within society can feel embittered towards women for special treatment. Attitudes towards domestic violence from police & judiciary – no police action on 73% of breached AVOs Attitudes towards domestic violence from police & judiciary – no police action on 73% of breached AVOs

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

Effectiveness of legal and non- legal responses Resource Efficiency Resource 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 ADVOs can be formalised and non-legal responses such as womens shelters can offer protection for women from abusive partners sooner than legal responses.

Effectiveness of legal and non- legal responses Accessibility – women have the same access to legal representation although are limited by financial constraints as mentioned in cost. Expanding Access to Justice for Older Women: Summary of Research Dainow, June 2005 outlines that women feel lawyers don't explain case proceedings well, lawyers are insensitive to violence against women (VAW) issues on an emotional level and not properly trained in VAW on a legal level and that Legal Aid is too restricted. Accessibility – women have the same access to legal representation although are limited by financial constraints as mentioned in cost. Expanding Access to Justice for Older Women: Summary of Research Dainow, June 2005 outlines that women feel lawyers don't explain case proceedings well, lawyers are insensitive to violence against women (VAW) issues on an emotional level and not properly trained in VAW on a legal level and that Legal Aid is too restricted. Other difficulties women face in terms of access to the legal system are in terms of language barriers for those from NESB and cultural restrictions in taking legal action against husbands. Other difficulties women face in terms of access to the legal system are in terms of language barriers for those from NESB and cultural restrictions in taking legal action against husbands. Many non-legal mechanism have interpreters and are lower in cost. This can make them more effective as a result than legal responses, although the actions made remain unbinding and difficult to enforce. Many non-legal mechanism have interpreters and are lower in cost. This can make them more effective as a result than legal responses, although the actions made remain unbinding and difficult to enforce.

Effectiveness of legal and non- legal responses Responsiveness – legal responses have increased to issues such as workplace discrimination and violence against women Responsiveness – legal responses have increased to issues such as workplace discrimination and violence against women

Effectiveness of legal and non- legal responses Enforceability – difficult to enforce breaches when they are not reported (3% of females in relationships report violence Crime & Justice Bulletin – Enforceability – difficult to enforce breaches when they are not reported (3% of females in relationships report violence Crime & Justice Bulletin – Trends and patterns in domestic violence assaults Oct. 2005). This occurs in domestic violence cases as well as workplace harassment. Under-reporting due to a fear of reprisals and further abuse, or more difficult situations at work. Once reported, women sometimes drop charges, but if all OK, then laws can be enforced. This occurs in domestic violence cases as well as workplace harassment. Under-reporting due to a fear of reprisals and further abuse, or more difficult situations at work. Once reported, women sometimes drop charges, but if all OK, then laws can be enforced.

Effectiveness of legal and non- legal responses Protection of individual rights – effective in that monetary compensation can be exacted from perpetrators (Hunt v RailCorp (2007) awarded Hunt $20,000), but ineffective as real harm can be done to women because of a lack of support in courts and by police in regards to ADVOs. Individual rights supported in Antidiscrimination legislation, but court action expensive and not expedient. Protection of individual rights – effective in that monetary compensation can be exacted from perpetrators (Hunt v RailCorp (2007) awarded Hunt $20,000), but ineffective as real harm can be done to women because of a lack of support in courts and by police in regards to ADVOs. Individual rights supported in Antidiscrimination legislation, but court action expensive and not expedient. Non-legal responses such as media are quick to show abuses of individual rights and can be effective in highlighting the issue, however it is limited in its ability to seek compensation. Non-legal responses such as media are quick to show abuses of individual rights and can be effective in highlighting the issue, however it is limited in its ability to seek compensation.

Effectiveness of legal and non- legal responses Meeting societys needs – Australian society demands that Women are treated fairly in all aspects of life. It is through this expectation of society that law makers are bound to pass legislation which tries to address the inequality still faced by women in todays society. More female politicians and currently a female Prime Minister (Julia Gillard) will also assist law makers to be sensitive to the needs of half the voters in Australia. Meeting societys needs – Australian society demands that Women are treated fairly in all aspects of life. It is through this expectation of society that law makers are bound to pass legislation which tries to address the inequality still faced by women in todays society. More female politicians and currently a female Prime Minister (Julia Gillard) will also assist law makers to be sensitive to the needs of half the voters in Australia. CEOs 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 make these changes and provides an example of a non-legal response. CEOs 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 make these changes and provides an example of a non-legal response. Lobby groups have helped to continue to push for the law to meet societys demands in accepting legal defences such as battered womens syndrome (R v Hickey (1992) which was the first case to recognise battered womens syndrome. Lobby groups have helped to continue to push for the law to meet societys demands in accepting legal defences such as battered womens syndrome (R v Hickey (1992) which was the first case to recognise battered womens syndrome.

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