Equality before the law
The ALRC took the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) as its starting point.
The ALRC inquiry found the legal system failed women in five key areas by:
- leaving them in the dark—women often have difficulty finding relevant information;
- brutalising the victim—even when women are aware of their rights, they often find they are not taken seriously;
- poor professional advice—women described being given wrong or misleading advice and being lied to, intimidated and threatened by their solicitors;
- prohibitive legal costs—because women are generally poorer than men, cost is a greater barrier to seeking help;
- barriers to access—child care arrangements, physically intimidating court waiting areas and inappropriate courtroom procedures have created barriers to access, especially for women with special needs, such as Indigenous women and non-English speaking women.
ALRC Report 67
In its interim report, the ALRC recommended the immediate establishment of a National Women's Justice Program (NWJP) to address women's needs for access to justice. Key elements of the suggested program were:
- measures to increase women's access to legal representation in court proceedings;
- an additional women's legal service in each State and Territory;
- legal resource and advocacy centres for Indigenous women as pilot programs for an initial three-year period;
- strategies by legal aid commissions, women's legal services and other funded community legal services to ensure that they responded to the needs of women from non-English speaking backgrounds;
- limited additional funding to existing services in identified high-need areas to increase non-English speaking women's access to justice;
- a toll-free telephone legal advice and referral service for all women in Australia;
- community legal education;
- test case funding;
- promotion and coordination of research and data collection;
- implementation of the ALRC's recommendations in Multiculturalism and the Law (ALRC Report 57);
- initiatives to address the needs of women attending courts and tribunals;
- court charters in federal courts and tribunals and other courts exercising federal jurisdiction to promote a better client focus in the delivery of court services, with special attention to the needs of women and child carers.
An Equality Act should be introduced, establishing national standards for the administration of justice, which enshrine the principle of equality. The Act would be of symbolic value and provide a benchmark against which government action could be judged. It would be used by courts in interpreting issues arising in cases before them. It would not provide a cause of action in individual private cases.
The Commonwealth Sex Discrimination Act should be strengthened, and all aspects of the law and legal system should be reviewed to ensure women's equality.
A number of recommendations were made to deal with violence against women, including a change in Family Court practices to take account of the experience of violence in family relationships.
Violence against women should also be taken into account in developing and applying immigration law and procedures. Guidelines should be developed for refugee decision makers on the appropriate treatment of cases involving violence against women.
For gender bias in the law to be corrected and lawyers to become more responsive to women's needs, the legal profession must be trained to understand the issues. Education of lawyers in law schools should include training on women's experience and interests.
Women should be consulted in the drafting of the Model Criminal Code.
A Violence Against Women Unit should be established within the human rights area of the federal Attorney-General's Department.
ALRC Report 69
A list of recommendations is included in Part I and Part II of the final report.
Many of the recommendations made by the ALRC were accepted by the then federal government in its Justice Statement issued on 18 May 1995.
The government announced that it would be implementing a National Women's Justice Strategy to increase and improve women's access to justice. The strategy would include:
- a national network of women's legal centres;
- community legal education on issues relevant to women;
- national access to toll-free telephone legal advice;
- refocusing legal aid to increase legal aid in family law and civil law;
- improved ways to address violence against women across the legal system and in family support services;
- funding for test cases;
- gender awareness programs for courts and tribunals;
- law reform; and
- research into the effects of violence in relationships on the access women have to mediation services and on the outcomes of mediation for women.
The federal government also announced it would amend sex discrimination, migration and family law legislation in response to recommendations made in the report, and that it would actively seek women's perspectives in drafting the new Model Criminal Code. Changes in departmental administrative practices relating to immigration have occurred in response to recommendations on violence against women and immigration law.
In September 1995 the government announced that new or substantially upgraded specialist legal services for women would be operating in all states and territories by early 1996 following a significant increase in funding.
In February 1995, the Norfolk Island Legislative Assembly enacted the Domestic Violence Act 1995 (NI), which was consistent with ALRC recommendations.
The Sex Discrimination Amendment Act 1995 (Cth) was enacted in December 1995. The Act implemented some of the changes to the Sex Discrimination Act recommended by the ALRC, although the Act was actually designed to implement recommendations of the 1992 House of Representatives Standing Committee on Legal and Constitutional Affairs report Half Way to Equal.
The ALRC's recommendations in relation to violence against women and family law influenced consideration of the Family Law Reform Act 1995 (Cth).
Discrepancies remain in policy and procedure between Australian state and territory laws on sexual assault and rape, which affect women's access to justice.
Law reform issues pertaining to violence against women including 'battered woman syndrome' continue to be discussed. Battered woman syndrome was considered by the High Court for the first time in December 1998 in Osland v The Queen. It was also considered by the Model Criminal Code Officers' Committee in its 1998 discussion paper on fatal offences against the person.
- Equality before the Law: Women's Equality (ALRC Report 69 Part 2) – 21 December 1994
- Equality before the Law: Justice for Women (ALRC Report 69 Part 1) – 25 July 1994
- Equality before the Law - Interim Report (ALRC Report 67) – 3 March 1994