Tongue, Sue --- "Eauality: What it Really Means?" [1995] ALRCRefJl 3; (1995) 67 Australian Law Reform Commission Reform Journal 11

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EQUALITY

What it really means

The Australian Law Reform Commission's work on the Equality before the law' reference was completed in December 1994 when the third volume of its report was presented to the Attorney-General and tabled in federal Parliament. The reference produced Equality before the law: women's access to the legal system (ALRC 67), Equality before the law: justice for women (ALRC 69 Part I) and Equality before the law: women's equality (ALRC 69 Part II).

The Commission's Deputy President, Sue Tongue, presents this overview.

Equality before the law means more than merely formal equality or equal treatment. True equality requires a legal system in which women's needs and experience are understood. Law cannot work in a vacuum. It must take account of the social, economic and political environment in which women live if equality before the law is to exist. This principle underlies the recommendations in the Australian Law Reform Commission (ALRC)'s Equality before the law reports (ALRC 67 and ALRC 69 Parts I and II).

Throughout 1993 and 1994, the ALRC held public hearings around Australia receiving over 600 submissions. Those submissions pointed to significant gender bias in the Australian legal system, a finding corroborated by further research. This bias is apparent in the law's undervaluing of women's work, the lack of recognition of the problem of violence against women, unjust treatment of women in the administration of legal policies, and inadequate recognition of the reality of women's lives.

The main issues raised in consultations were:

• women's access to justice, particularly in the context of violence against them
• women's legal rights in family life and relationships, and the problems of enforcing those rights
• women's participation in the legal profession
• legal rights to social security
• the position of women in employment and in the unpaid workforce
• media portrayals of women.

The most urgent problem brought to the ALRC's attention is the failure of the legal system to give women protection and redress when they have been subjected to violence from their partners or ex-partners. There are some obvious ways reform could overcome this problem and ALRC recommendations include:

• amending the Family Law Act 1975 and Family Court practices to take into account the experience of violence in family relationships
• taking into account violence against women in developing and applying immigration and refugee law and procedures
• actively seeking women's perspectives in preparing a national uniform criminal code.

In its reports the ALRC emphasised the links between violence, access to justice and inequality before the law. It recommended a national program to improve development of the law, community legal education, legal advice, legal representation, research and data collection and court processes and facilities. These recommendations formed the basis of the National Women's Justice Strategy announced by the Prime Minister in the Justice Statement on 18 May 1995 [see box on following page].

To overcome women's inequality it is insufficient to only change specific laws and practices. The legal system itself must be overhauled. The ALRC has recommended a package of measures to enshrine equality as a fundamental principle and basis for further Australian social, economic and political developments. The recommendations in this package included:

• getting women's voices heard in court
• legal education and the legal profession
• women and economic life
• women in remote communities
• the next step: an Equality Act?

Getting women's voices heard in court

In addition to funding for test cases and women's legal services, the Commission recommended changes to the laws of standing to allow intervention in relevant cases. This would enable women's perspectives to be put before the courts. The Commission is currently reviewing its previous work on standing and is due to report to the Attorney-General by March 1996.

Legal education and the legal profession

If gender bias in the law is to be corrected and lawyers are to become more responsive to women's needs, the legal profession itself must be trained to understand the issues. The ALRC recommended that, in the education of lawyers in law schools and in professional training, women's experience and interests be directly reflected in curricula (ALRC 69 Part I chapter 8). It also recommended reforms in the legal profession to ensure better treatment of women lawyers within the profession, a better service to women clients and effective protection of the principle of equality (ALRC 69 Part I chapter 9).

Women and economic life

Women's inequality in economic life has a direct relationship with legal principles that fail to give due value to what is conventionally referred to as unpaid work and that make assumptions about women's dependence. The reports examined specific instances of that inequality - as it affects women who work on farms, women who become liable for sexually transmitted debt' and women who receive social security.

Women in remote communities

The problems of women in small and remote communities are as serious as those of women in other areas and yet they are often unacknowledged. As a case study the ALRC examined the problems that the women of Norfolk Island have with the legal system.

The next step: an Equality Act?

Parliament should establish standards for the administration of justice in an Act enshrining the principle of equality in Australian law. This would be of symbolic value and provide a benchmark against which government actions could be judged. It would be used by courts in interpreting issues arising in cases before them. It should not provide a cause of action in individual private cases. The Attorney-General has announced that his Department will consult with the community on the recommendations for an Equality Act.

The ALRC reports are now being cited and studied by practitioners, academics and government officials in Australia and overseas. It is hoped that they will be referred to in legal policy development for many years to come. Materials gathered during the project are being deposited with the Jessie Street Womens' Library in Sydney to facilitate access by researchers.

National Women's Justice Strategy Under this program announced by the Prime Minister as part of the Justice Statement in May 1995, the Government has promised to: provide $12.3 million over four years to establish a national network of women's legal centres to provide advice and assistance to women in city and country areas with legal problems provide an additional $5 million over the next four years to enable the network of women's legal centres to establish specialist services for Aboriginal and Torres Strait Islander women commit $500,000 to establish a national outreach and development fund to develop legal information resources on issues relevant to women including family law matters, violence against women, discrimination, employment matters, sexually transmitted debt' and other areas of the law provide national access to toll-free telephone legal advice through the women's legal centres refocus legal aid to redress gender bias and increase legal aid in areas where women need it, such as family law and civil law allocate $2.4 million over four years, through its family support services, to address violence in family relationships provide increased funding for test cases, including cases of particular importance to women, such as in the areas of health, consumer protection and discrimination make additional resources available to courts and tribunals to conduct gender awareness programs undertake further necessary law reform, primarily in relation to strengthening the Sex Discrimination Act

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