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.
