• Selected
• Entire List

Abstract:
In this discussion we start by exploring two interrelated aspects of understandings of equality. First, we look at the persistence of the understanding in law of equality as meaning only formal equality, that is, the Aristotelian notion of treating people the same, regardless of circumstances. Secondly, we examine the extent to which we have succeeded in reconceptualising some of the harms that happen to women (and other outsiders) as gendered harms, as legal claims predicated upon a recognition of inequality. We then consider why formal equality continues to have such purchase, and discuss ways in which we may continue to engage with equality more fruitfully. We discuss examples from Australia, as well as some from other countries, specifically South Africa and Canada, to illustrate different ways of approaching equality issues. We conclude our discussion with a brief review of developments in jurisdictions that take a more substantive approach to equality issues and consider the extent to which women's social, legal, and economic status have improved in these jurisdictions.

equality, formal equality, substantive equality, women's social, legal and economic status, gendered harms

Abstract:
Over the last decade there have been numerous revelations about the harms suffered by children in a range of institutions in Australia. In 1997 the Human Rights and Equal Opportunity Commission reported on the experiences of the Aboriginal Stolen Generations in Bringing them Home, and a number of other state and federal inquiries have also documented an extensive history of institutional abuses of children in Australia. Most of the inquiries recommended that the relevant victims/survivors should be compensated and/or provided with some form of reparation, yet, with limited exceptions, the governments involved have refused to implement, or even entertain, any form of redress package.

In stark contrast, in Canada where there has been a range of similar inquiries into institutional abuse of children, there has been considerable progress in providing redress in the form of specifically designed reparations or compensation packages. The redress schemes developed in Canada vary considerably. Some resemble 'out-of-court settlements', while others appear to provide genuinely alternative forms of dispute resolution. If we understand the notion of redress or reparations as being about more than simply settling claims by means of financial compensation; if redress is seen as an attempt to address the multiple needs of victim/survivors of abuse, then we need to identify those characteristics that distinguish successful redress mechanisms from the more traditional tort system.

In this paper, we focus in depth on the 'Grandview Agreement' concluded between the government of Ontario and the Grandview Survivors' Support Group in 1994. This agreement gave rise to a process widely seen as one that developed, and put in place, an alternative process for addressing the harms perpetrated on the women and girls held in the Grandview Training School for Girls. We use the Grandview Agreement and the process of adjudication developed for it as a case study by which to examine the possibilities for creative redress packages that move beyond the common law tort system's emphasis on traditional concerns such as burden of proof, responsibility, causation, validation and witness credibility and instead focus on healing and reparation.

Gender, injury, gendered harm, institutional abuse, historical harms, systemic injuries, tort, alternative dispute resolution, sexual abuse, intentional tort, redress, reparations, compensation, therapeutic jurisprudence

Abstract:
"Gay marriage" is often used as a short-hand in popular discourse to stand for any and every form of same-sex relationship recognition. Yet even in some jurisdictions that have now opened marriage to same-sex couples, marriage was not first, and is not the primary, form of relationship recognition. Same-sex relationship rights are in a state of enormous flux with considerable variation apparent among the models, strategies, and substantive effects of recognition around the world.

This Article reflects on the approaches that Australia, and to a lesser extent New Zealand, have taken to relationship recognition, focusing in particular on the ways in which they have differed profoundly from what has happened in the United States. Specifically, the relationship recognition debate in Australia through the 1990s was characterized by the absence of any real interest in marriage and instead focused on developing more functional and adaptive models of relationship recognition, primarily through presumption-based models.

same-sex relationship recognition, lesbians, gay men, same-sex couples, gay marriage, same-sex marriage, de facto relationships, interdependency, family law

Abstract:
In this article, we question whether formal legal processes have been of any value to women and other disadvantaged groups. We suggest that the processes of various law reform agencies might make them particularly unable to respond effectively to issues that affect women. First, we look at the ways in which law reform questions are asked and answered, and at the generally narrow way in which 'terms of reference' are often framed or constructed. Next, we consider the overemphasis on formal outcomes at the expense of attention to process. Finally, we examine the rather problematic relationship that formal law reform agencies have had, at least at times, with research, empirical data and socio-legal methods. Broadly, we argue that insufficient attention is paid to the real lives of those who interact with, and are impacted upon by, the law and legal system. We conclude with a reminder that even if such agencies were more effective, changes to laws can only ever constitute a small part of any profound social change. Yet for all its faults, we imagine that women will continue to turn to the law, as they have for some time now, as one (albeit limited) forum for addressing women's disadvantage.

Gender, Law Reform, Legal Strategies, Feminist Legal Scholarship

Abstract:
This discussion considers assumptions about judges and judging and suggests that despite what is sometimes perceived as increasing diversity on the bench and in the legal profession, outsider decision makers' membership of the jurisprudential community is still marked by 'otherness'. The argument draws upon my ongoing interest in the law's concern with the concepts of 'objectivity', 'neutrality' and 'perspective'. I argue that the legal system is inherently suspicious of 'otherness' and most specifically so when 'others' occupy positions of 'judgement'. The consequence is to render decisions made by 'otherised' judges liable to attack for bias in a way that decisions made by insiders simply are not. The argument is illustrated by a review of a number of challenges made on the ground of 'bias' or recusal motions to judges whose failure to match the white Anglo hetero-normative standard of 'the judge' is seen as a limit on their ability to be 'impartial'. The examples used range across many jurisdictions, from Australia, Canada, the US and a challenge to the impartiality of a decision of the International Criminal Tribunal for the former Yugoslavia (ICTY).

bias challenge, recusal, otherness, race, gender, perspective, judicial desicion-making

Abstract:
This discussion looks at the treatment of non-economic losses in the context of the assessment of damages for personal injuries. The non-economic loss issues discussed include compensation for cosmetic injuries and the value ascribed to women and men's appearances, as well as issues of sex and reproduction. The major focus of the article is on sex or at least on the active corporeality reality of accident victims' embodied lives.

When a person is injured and comes before a court for assessment, every aspect of their day to day life is scrutinised. In addition to telling us stories about women's and men's involvement in work, both paid and unpaid, damages cases also tell us about the judicial construction of women's and men's bodies. They tell us about the constructions of family life, about women's and men's leisure activities and often, as many of the cases discussed in this article do, about their lives as heterosexual beings. In effect, in these cases not only are people's actual bodies before the court for evaluation but judges also have a unique opportunity to create narratives about people's past, present and future.

Personal injury, damages, non-economic loss, gender, sex, reproduction, household work

Abstract:
One of the most striking features of the latter part of the last century was the widespread feminist activism in the USA, Canada, Australia, and many other countries directed against violence against women. Feminist law reform campaigns targeted rape, domestic violence, sexual harassment, and child sexual abuse. Yet despite the broad attention to these issues, there is a continuing absence of attention in legal discourses to women's stories about the violence in their lives. In particular, outside the area of the criminal law, it is rare to find courts discussing violence, yet not uncommon to discover the centrality of violence to a legal problem, whether it be in equity, or tort, or family law. One theoretical response to this concern, and to other feminist concerns about the stories told by women in law, has been the developing field of legal storytelling. This article discusses legal storytelling and suggests that while it is an important response, it is of itself an inadequate response. I argue that while it is essential to hear alternative legal stories, in particular, those of the powerless, this approach is itself constrained by the legal categories within which we understand legal problems. Since legal categories shape legal problems, and, in the case of violence against women, help to obscure that reality of many women's lives, it is essential to pay attention to the role of legal categories in perpetuating the law's indifference to, or its occasional tacit complicity in, violence against women.

violence against women, legal categories, legal storytelling, feminist legal theory, feminist law reform

Abstract:
In 2009, Australia is debating whether to have a national bill of rights and remains one of the last western democracies that has not yet legislated for (or indeed constitutionally entrenched) some form of human rights law. Nor is there any guaranteed right to 'equality'. Nonetheless, as feminist legal scholars, our work has been centrally concerned with issues of equality. We argue that equality is deeply implicated as a value in the Australian legal system, despite the absence of some formal instrument or constitutional guarantee. This discussion asks, perhaps controversially, whether there might be some advantages that flow from that lacuna. Does an absence of formal rights protection leave room for flexibility and for more creative responses for those who have been left outside the mainstream of the legal community? We explore some of the traditional critiques of rights discourses and the persistence of formal equality as the preferred model. We then interrogate these issues by reference to two case studies: first, the recognition of lesbian and gay familial relationships and secondly, in the context of the law governing the regulation of abortion.

equality, formal equality, constitutional guarantees, bill of rights, gender, sexuality, disadvantage, outsiders

Abstract:
A reivew of the process of same-sex relationship recognition in the Australian state of New South Wales, the first such jurisdiction in Australia to enact comprehensive reforms. The article compares the Australian experience with that of other jurisdictions such as Canada.

Same-sex relationships, law reform, lesbians, gay men, de facto relationships

Abstract:
This discussion, part of a forum reviewing in the first 20 years of Australia's Sex Discrimination Act 2004 (Cth), considers what is understood by the notion of 'equality' when used in the context of the Sex Discrimination Act. While the term is often used when talking of legislation of such kinds, equality is a concept with a number of different meanings. In particular we examine the persistence of an understanding of equality as merely formal equality or at best subject to a 'differences approach'. We argue that this is a limited way to understand the concept of equality.

Sex Discrimination Act 2004 (Cth), gender, equality, formal equality, substantive equality

Abstract:
As the work of feminist legal scholars has convincingly demonstrated, gendered assumptions underpin much of our law, including areas such as tort, property, tax or company law, where women are not so readily apparent. As the field of law that most overtly involves women, and deals extensively with relationships between women and men, family law shares, perhaps only with the law of sexual assault, the high visibility of women as parties or participants. It is therefore particularly susceptible to a gender analysis. However, any such analysis must take place against the background of Australia's national family law legislation, written in a gender neutral fashion, though it operates in the context of a highly gendered world with all its consequences. The purpose of this article is to suggest some of the ways in which gender might operate under Australia's national family law legislation to disadvantage women.

gender neutrality, gendered assumptions family law, women's disadvantage, equality

Abstract:
This article scrutinises some of the underlying concepts that have structured law reform debates about matrimonial property and describes findings about the economic consequences of marriage breakdown for women and children. It evaluates aspects of matrimonial property law by reference to debates about the meaning of equality for women and suggests that any successful matrimonial property law reform must move beyond the rhetoric of formal equality in redressing the economic disadvantage currently experienced by women and children after marriage breakdown.

Equality, matrimonial property law reform, formal equality, women's economic disadvantage

Abstract:
This chapter discusses what have come to be known as actions for wrongful birth, wrongful pregnancy or wrongful conception. In particular it focuses on the situation where, due to the negligence of a medical practitioner, a child has been born to parents who did not plan or choose to have that child (indeed who may actively have planned not to have a child), or what an English commentator has termed 'unsolicited parenthood'.

Within the UK and Australia the issue that has raised most contention in such cases is whether as an aspect of damages for what is clearly accepted by courts as negligence, the parents might receive compensation for the costs of raising the child. Unlike in the United States where some states have imposed statutory bars on those actions, there has never been any suggestion in Australia or the UK that the negligence go completely unremedied. Instead the legal issue is confined to the recovery of one head of damages only: ie, the costs of bringing up the child.

In this discussion I focus on an underlying theme: the issue of reproductive choice and in particular the challenge to women's reproductive autonomy that denying recovery entails.

tort, negligence, gender, reproductive choice, reproductive autonomy, damages, wrongful conception

Abstract:
This article starts by considering the extent to which women have been described as other when it comes to judicial decision making. Their marking by use of an adjective ('women' judges) serves to remind us that maleness has traditionally been presumed to be the benchmark or standard against which neutrality and objectivity in judging are measured. The discourses used to describe issues around judging and in particular, in debates about the diversification of the judiciary, continue to imply a white male heterosexual able bodied norm from which all those who are 'other' deviate. Several cases involving challenges to women's role as legal decision-makers using the bias doctrine or by way of recusal application help to demonstrate the gendered and racialised underpinnings of legal discourses. The article questions whether having more women and other outsider judges will improve the legal system. Ultimately, it concludes that the focus of efforts to bring 'outsiders' into the judiciary needs to shift from simply letting them in to questioning or perhaps reformulating the fundamental ways in which the activity of judging is carried out.

judging, legal discourses, women judges, outsider judges, otherness, bias, gender, race, perspective, judging, judges

Abstract:
This article argues that the "tort reform" debate in Australia has largely taken place without reference to the empirical and social context in which accidents and injuries occur. In fact, the so called liability crisis has far more complex origins which cannot readily be resolved by changing tort law.

negligence, tort reform, public liability

Abstract:
Despite increasing awareness of the hazards of doing so, people still continue to guarantee loans for other people (usually relatives or partners) and by doing so, may end up suffering from "sexually transmitted" or "relationship" debt. When a guarantee is enforced, there can be serious consequences such as the loss of the guarantor's home. In this discussion, we outline a project undertaken by the NSW Law Reform Commission who did a project that included a major empirical component on third party guarantees. We note that guarantees for small business loans tend to cause the greatest hardship since business loans (and third party security for them) are not as tightly regulated as are consumer borrowings.

law reform, small business loans, third party guarantees, emotional pressure, guarantees, review of unfair contracts, sexually transmitted debt, relationship debt

Abstract:
Of all the areas of law, family law is the one in which violence, while it may not be the issue in question in a particular case, is nonetheless often central to the context of a dispute. This is not surprising in view of the fact that most violence against women is perpetrated by men known to them, in particular by men with whom they are or have been in intimate relationships. Yet despite its prevalence, violence in the home has historically been rendered invisible in family law decision making. This discussion explores how violence might be made more visible in family law decision making and considers ways in which decision making structures might better respond to violence where it is a clear part of the context of a dispute. While violence had increasingly come to be seen as highly relevant to the welfare of children, less attention had been paid to its relevance in property proceedings. The author argues that the widespread and pervasive nature of violence against women must be recognised, as opposed to conceptualising 'family violence' in an isolated gender-neutral fashion.

family law decision-making, domestic violence, gender, gendered harm, family violence, property proceedings, child custody, law reform

Abstract:
This article describes the main findings of a three-year Australian Research Council funded project examining the operation of the Family Law Reform Act 1995 (Cth), which involved interviews with and surveys of judges, lawyers, court and private counselors and mediators as well as various stakeholders in family law reform. The findings suggest that the law's exhortations to shared parenting are not reflected in flexible work arrangements, nor do they map the reality of the caregiving arrangements among the population of separated parents with children. In particular, the research found that some of the changes made to the statutory scheme resulted in a positive failure to protect the welfare of children adequately.

The research suggested that: new concepts and orders introduced into the Act provided greater scope for harassment of the primary carer or resident parent by the non-resident parent; shared residence arrangements were sometimes made for questionable motives, such as reduction of child support liabilities; and that many women felt coerced into 'consenting' to unsafe contact orders, where there was a risk of violence from the father. A significant finding was the large increase in often non-meritorious applications brought by non-resident parents alleging breach of contact orders.

family law, law reform, socio-legal research, "shared parenting", children's welfare, "custody"

Abstract:
This article, part of a symposium to mark the 25th anniversary of the publication of the Alternative Law Journal (which started life as the Legal Service Bulletin), looks back over 25 years of feminist activism in law, and charts how hard-earned feminist reforms to areas of law that operate in a gendered manner are constantly under pressure. Amongst the issues mentioned are sexual assault, domestic violence, and the gendered nature of the criminal justice system. The article also discusses differences between the methods of feminist legal activism in North America (the US and Canada) and in Australia. Specifically, in Australia feminists are far more likely to turn to legislatures than to the courts, and we discuss some of the reasons for that.

Abortion, Sexual Assault, Gender, Litigation, Law Reform, Legal Strategies, Feminist Legal Scholarship

Abstract:
This discussion considers the response of the Australian Federal Government, and some of the conservative media, to the 1997 report of the Human Rights and Equal Opportunity Commission, "Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families" (1997). The government did not agree that an apology was warranted, and argued that no compensation should be payable. First, it was claimed that there was 'no comparable area of awards of compensation and no basis for arguing a quantum of damages from first principles'. Secondly, they also argued that 'no amount of damages can make up for the pain of the past', and therefore, there was no point in trying to do so. In this article, I draw analogies between the wrongs perpetrated on Australia's 'Stolen Generations', and those that come before the courts on a daily basis for assessment. Even the most minimal familiarity with the legal frameworks used for compensating various sorts of injuries would make it clear that these arguments are little more than a rhetorical device. What is, or is not, compensable at law is more a matter of political judgment and government policy than it is a matter of any inherent legal understanding of compensation principles.

"Stolen Generations", compensation, historical wrongs, historical harms, systemic injuries, tort, damages

Abstract:
This article demonstrates how legal categories often create 'silos' that make it difficult to understand important legal issues that operate across more than one legal doctrine. By examining what was then a new national child support scheme, it shows how family law decision making and legal and policy decisions around social welfare payments are totally interconnected and highly gendered. The article locates the creation of the child support scheme within the context of the material lives of the women who are single parents. Empirical data about single parents (who they are and how they came to be single parents) are contrasted with prevailing myths, and discussed within the framework of the social security (welfare) system, the major source of income support for single parent families in Australia. It also demonstrates the fundamental shifts that the scheme brought about in family law decision making, and questions the rhetorical resort to the ideology of equality in attempting to resolve the poverty of single parents and their children. The article demonstrates the ways in which this notion can conceal major structural barriers to women's attainment of legal and financial independence and can obscure endemic inequalities between women and men in Australia.

equality, family law, social security law, welfare, child support, single parents, women's work, sex discrimination

Abstract:
This discussion responds to two critical responses to our research report on the Family Law Reform Act 1995. The critics suggested that our research methodology lacked rigour, because of the inclusion of qualitative methodologies and in particular, because of our identification as feminist legal scholars. Our response questions notions of 'objectivity' and neutrality when used in such critiques and points out that there is a presumption (an erroneous presumption) that white male scholarship has no race, no gender, and comes from no position. The article notes that social science research generally, whether employing quantitative or qualitative methods, always involves acts of interpretation. We also highlight the widespread use and growing preference for socio-legal analysis of the impact of legislative change on the practices of legal actors to examine social problems. We revisit and explain some of the key findings made in our research report.

socio-legal research, research methodology, feminist legal scholarship, judging, family law, family law reform, shared parenting, children's welfare

Abstract:
This discussion draws upon the author's long standing research interest in the gendered aspects of personal injury damages assessment. It questions how courts have valued (or not valued) women's work in the home when injury has diminished their capacity to undertake it. It looks particularly at three different issues that give rise to gendered questions of damages assessment. First, if women's injuries impair or destroy their capacity to engage in paid work, how is that loss compensated? Secondly, how does the law deal with women's loss or destruction of capacity to do work in the home, work that is rarely if ever seen as having economic value? And finally, how does the law respond to women's work as the carers of accident victims? The discussion highlights ways in which stereotypical views and false assumptions about women and work pervade the assessment of damages for personal injury. For example, it explores the ways in which women's paid work is often presented (in judgments) as somehow competing with or as incompatible with other aspects of their lives and roles they were expected to fulfil. It suggests that what might seem to be formally gender-neutral rules and legal principles can actually disadvantage women, using as an example the use of actuarial tables that themselves reflect gendered and racialised inequities.

personal injury damages assessment, tort law, gender, women's work, legal-decision-making, gender bias, loss of earning capacity, caring work, feminist legal scholarship

Abstract:
This article engages with the ways in which the assessment of damages for personal injuries reflects deeply gendered assumptions about women's and men's roles. It arose out of a decision of the NSW Court of Appeal (which later went to the High Court of Australia) in NSW Insurance Ministerial Corporation v Wynn. The Court of Appeal had substantially reduced a trial judge's damages award for a woman executive whose injury had impaired her earning capacity, by taking into account gendered assumptions about her lack of attachment to the paid labour market. In particular, the court had discounted the award heavily for 'vicissitudes' of life which included that she may not want to continue working once she had children; that promotion for her would involve too great a sacrifice for her husband. The author suggested that the High Court needed to address the marginalisation of women's paid work that emerged from a reading of case law in this area.

tort law, personal injury, gender bias, judicial decision making, damages, women's work, loss of earning capacity

Abstract:
This article reflects on the ways in which developments in feminist legal theory, and in particular, the attention paid to theories of equality, have influenced developments in substantive law. The authors review the period between 1990 and 2002; the period of 12 years between the publication of the first and second editions of their co-authored book, The Hidden Gender of Law. They ask why (Australian) courts seem barely to have engaged with the sophisticated discourses of equality that have emerged not only from the academy, but also from some of the jurisprudence developed in other countries, notably Canada and South Africa. While the examples discussed are disparate, what unites them is the theme of equality.

equality, formal versus substantive equality, gender

Abstract:
This article considers the gendered nature of the legal discourses that emerge from courts' decision-making about damages assessments. It looks particularly at the costs that are incurred when women - and it is usually women: the wives, mothers and other female relatives of accident victims - take on the care of accident victims and considers how if at all those costs should be factored into an assessment of damages for the person injured by someone else's negligence. The High Court of Australia decided in 1977 in Griffiths v Kerkemeyer that damages could be awarded in respect of the costs of care, but since that time, a number of decisions and statutory modifications had limited the scope of that judgment. This discussion examines how that winding back relies upon assumptions about what goes on in households, and locates the issue into the context of the gendered nature of caring work. In particular, it draws attention to the ways in which because caring work is 'women's work' - even where it is done by men - that work is devalued and this has serious consequences for the lives of accident victims dependant on that care.

tort law, feminist legal scholarship, personal injury damages assessment, gender, family relationships

Abstract:
Australian courts have been slow to recognise the gendered nature of aspects of the award of damages for personal injury. The decision of the High Court in Griffiths v. Kerkemeyer made it clear for the first time that damages could be recovered for the costs of care even where such care was provided 'gratuitously'. In Van Gervan v. Fenton, a majority of the High Court reaffirmed the broad principles established in that earlier case. This discussion examines the High Court decision in Van Gervan v. Fenton and scrutinises some of the gendered assumptions that emerge about women and their caring work. It is suggested that assumptions of this nature underlie judicial and legislative decision making in this context and result in failure to value caring work property in the context of damages assessment.

tort law, personal injury, gender, damages assessment, caring work, women's work

Abstract:
This article, which forms part of a festschrift published to mark his retirement, considers the contribution made by Harold Luntz to the teaching of torts in Australian law schools. The focus is on his co-authored text, 'Torts: Cases and Commentary', the fifth edition of which was published in 2002. The major contribution that this book makes is through its focus on the empirical context in which tort doctrine is developed and applied, and on the social context in which the rules operate. Drawing on the casebook's treatment of specific examples (such as tort liability for domestic violence and sexual assault, and possible remedies that might be available to the 'Stolen Generations' (the taking of Australian indigenous children from their families)), this article highlights the book's successful merging of detailed doctrinal issues with a critical and contemporary commentary on the limits of (tort) law.

Torts, Liability, Legal Education, Legal Literature, Personal injury damages, compensation, empirical scholarship

Abstract:
This article considers a case that started life as a medical negligence case that later became obscured by legal arguments about abortion and 'wrongful birth'. A doctor failed a number of times to diagnose that a woman was pregnant, and by the time this was discovered, it was too late for the pregnancy to be terminated. When the woman sued for negligence, at first instance it was held that she could not recover because it was argued that if she had decided to terminate the pregnancy when advised of it, such a termination would have been unlawful. The NSW Court of Appeal reversed, and the matter was set to be heard by the High Court of Australia before it settled. The case raises a multitude of issues, including how the spectre of 'abortion' can affect and distort what would otherwise be a simple case of medical negligence; the respective roles of doctors and courts in collateral (non-criminal) proceedings in making assessments as to the availability and 'lawfulness' of abortion in any particular case; and the availability and quantum of damages for the cost of raising a healthy child who would not have been born but for the negligence of the defendant. The judgments under review are also significant for the insights they provide into the persistence of gendered assumptions in aspects of tort law and damages assessment.

abortion, tort law, damages assessment, feminist legal scholarship, wrongful birth/wrongful conception

Abstract:
This article discusses the ways in which the core law school curriculum is informed by assumptions about gender. It discusses a project, funded by Australia's federal department of education in the mid 1990s that involved creating teaching materials that raised and introduced gender issues into the core law curriculum. The authors prepared a set of teaching materials, made available via the internet, which focused on the themes of 'work' and 'violence'. The article also discusses legal categories and the roles that they play in obscuring legal problems that affect women's lives. However, there is a tension between trying to reconstruct those categories (eg, by focusing on themes such as 'work' and 'violence') and creating teaching materials that can readily be used in courses with names like 'contract', 'property' etc. In this article, the authors canvass their approach to this dilemma and illustrate this with some of the examples from their project.

legal education, law school curriculum, core curriculum, feminist legal scholarship, legal categories, gender, legal pedagogy

Abstract:
This chapter reflects critically on a range of law reform processes that have taken place in Australia. While law reform is generally seen as inherently progressive, as part of a progress narrative, the chapter questions some of these assumptions by focusing on a number of different law reform processes, ranging from work done by permanent statutory law reform agencies to ad hoc reviews. Three particular examples are used as case studies: these are reforms to sexual assault or rape laws in New South Wales, 'family law reform', and the 2002 review into public liability/negligence: Australia's tort reform 'crisis'.

Two common themes identified are the persistence and power of myths and stereotypes and reliance on anecdotal information in place of evidence-based research. I suggest that law reform should be driven more by social context, relationships and themes rather than simply working from pre-existing legal categories. A related concern is how to ensure participation in law reform processes by the people most affected by the laws in question.

law reform, family law, sexual assault law, tort law, feminist jurisprudence, gender, legal method, empirical research

Abstract:
Professor Michael Chesterman was among the first scholars to address questions about gender and more broadly, the meaning of 'work' in the context of personal injury damages assessment. In his 1983 research paper, commissioned by the New South Wales Law Reform Commission as part of its inquiry into Accident Compensation, he made two key contributions: first, he argued strongly in favour of abandoning earnings-related compensation and moving away from lump sum payments; and, secondly, he proposed compensating losses suffered by 'non-earners' (mostly, but by no means exclusively, 'homemakers'). This essay explores and draws upon the issues raised by Chesterman and reviews how if at all these themes have been developed in the decades that followed this path-breaking work. Despite some initial advances in recognising the value of work not traditionally seen as having economic value, and in creating a head of damages recognising the caring work done (usually by women) for accident victims, (Griffiths v Kerkemeyer damages), substantial inroads have been made on these heads of damages. Decades after Chesterman's pioneering work, we are still debating how women's work, particularly their work outside the paid labour market, should be recognised in the context of schemes that compensate accident victims.

tort law, accident compensation, personal injury, women's work, gender, damages assessment, caring work, law reform

Abstract:
This article addresses two barriers to women's participation in the legal system which, it is argued, impact negatively on women's citizenship by limiting their access to justice. While the notion of citizenship has generally been seen as a gender-neutral phenomenon, feminist scholarship has revealed that many aspects of citizenship are in fact highly gendered. Using the historical notion of 'civil' death, the rule by which felons were prevented from bringing civil proceedings once convicted, the authors argue that contemporary barriers have the same effect.

The article commences with an exploration of the gendered nature of the Australian legal aid system, looking at the allocation of legal aid funding across types of law, and by gender. This demonstrates a clear priority given to defending - mostly men - charged with criminal offences, at the expense of funding the types of issues that are more likely to affect women, such as family law cases or other civil actions. The second part focuses on limitation of actions legislation and considers the example of claims for childhood sexual abuse which are often rendered effectively unavailable by the operation of the apparently prosaic (and gender neutral) doctrine of limitation periods.

feminist legal theory, legal aid, torts, limitation periods, citizenship, gendered harms

Abstract:
This article considers some of the barriers to effective policy development in areas of law impacting on family relationships. First, the article draws attention to the narrow way in which the notion of 'family law' has been understood as involving only the law affecting marriage and divorce, whereas the law impacts on familial relationships in a much broader variety of ways. Next, it points out that powerful gendered discourses constrain how family law policies are debated and progressed. Despite that, the article draws a contrast between the significant progress that has been made in Australia in recognising gay and lesbian families, albeit in a functional rather than symbolic way. Unfortunately, the same cannot be said about heterosexual family law debates where important policy decisions have all too often been made on the basis of anecdotal information (such as stories about frozen 'chooks' (ie, chickens) rather than on the basis of evidence-based research.

Family Law, Constitutional Law, Law Reform, Families, Feminist Legal Scholarship, relationship recognition, same sex relationships, gender, 'gender wars'

Abstract:
Marlee Kline's lasting professional legacy will almost certainly be her work on First Nations women and the role played by* the state in mediating and, more often, interfering with their relationships with their children. Yet a lesser-known, though just as important, aspect of her work was her unsettling foray into the issue of anti-Semitism. Marlee courageously took on this issue following the discovery of profoundly anti-Semitic sentiments by one of Canada's most famous 'first women to'- Clara Brett Martin. This commentary is based on a speech given at the Roundtable in Memory of Marlee Kline at the second International Conference on Gender, Sexuality and Law at Keele University on 29 June 2002 and forms part of a special issue of the Canadian Journal of Women and the Law dedicated to her memory.

gender, anti-Semitism, feminist legal theory

Abstract:
This discussion focuses on the gendered assumptions that underpin the activity of ‘judging’. Initially prepared for a forum on 'Will Women's judgments make a difference', the chapter asks whether, to use philosopher Lorraine Code's term, the 'sex of the knower is epistemologically significant'? It goes on to consider what judges know about the world, how they know the things they do, how what they know translates into how they judge, and how all of that is inherently gendered. The discussion also considers the place of 'common sense' or, in legal doctrinal terms, 'judicial notice'. The chapter asks what it is in legal discourses that shapes and constrains the process of constructing reality in such a way that women's lives are either ignored or distorted and concludes that something more is at work than the biological sex of the judges whose authority is able to construct the factual context of the world in our discipline. Finally, the chapter asks whether women's judgments might make a difference and concludes that until we disrupt this adherence to the common sense that reflects a partial view of the world, we will not be in a position to evaluate the potential of women's judgments.

judging, gender, partiality, judicial notice, facts and fact finding, legal storytelling, feminist jurisprudence