National Women's Justice Coalition contribution on Articles 15 and 16 of CEDAW to the Australian Non-Government Organisations report to the UN Commission on the Status of Women particularly in response to the Australian country report
[prepared July 1997]
* Article 15 Equality Before the Law * Article 16 Marriage and the Family * Web references
ARTICLE 15 EQUALITY BEFORE THE LAW
The inferior social and economic position of women, gender bias in the law, lack of access to legal services and lack of concerted government action continue to underpin women’s legal inequality in Australia. Those suffering special disadvantage include Aboriginal and Torres Strait Islander women, women of non-English speaking background, women living in rural and remote areas, older women, women with a disability and women who are multiply disadvantaged.
In 1994 the Australian Law Reform Commission completed its reference on Equality Before the Law and reported at length on what it referred to as the failure of justice for women in Australia. The reference generated significant momentum for change. The federal government announced a ‘National Women’s Justice Strategy’ which included funding for women’s legal services. Some judicial training on gender bias occurred and law course resources on gender issues were developed.
Despite the name, the ‘National Women’s Justice Strategy’ was a set of spot funding initiatives (some subsequently withdrawn) rather than a concerted strategy to address women’s legal inequality. Three years after the ALRC’s report the federal, state and territory governments have not responded to the report. The federal government disregarded relevant recommendations in the development of its family law reforms in 1994 and 1995 and subsequently in reforms in other areas.
Emergence of women’s equality seeking groups
Heightened awareness of women’s legal equality issues arising from the ALRC’s work and other factors have led to the emergence of a number of women’s equality seeking groups. These include the National Women’s Justice Coalition, the National Network of Women’s Legal Services, the Women’s Emergency Services Network, the Feminist Legal Academics Network, and the National Forum of Rape Crisis and Sexual Assault Workers. These groups and numerous associated networks are pressing strongly to advance women’s equality before the law.
Equality guarantee
Australian women have no constitutional guarantee of equality before the law and the federal government is resisting attempts to broaden the forthcoming constitutional convention to include debate on the entrenchment of citizenship rights. Further, the government has not responded to the ALRC’s recommendations for an Equality Act which would allow legislation to be struck down for offending equality principles.
Women are still under represented in law making positions and in the judiciary and there are no announced strategies in place to boost women’s participation. Women lawyers and the Law Council of Australia have taken steps to raise awareness about bias and discrimination against women in legal practice. However, moves by women lawyers to elicit the support of other legal professional bodies to combat sexual harassment and discrimination against women in the legal profession have had only limited success.
Legal aid
The ALRC recommended that steps be taken to increase women’s access to legal aid services. While the establishment of women’s legal services to provide advice, support, referral and law reform was a step forward, substantial legal aid funding cuts and revised intergovernmental funding arrangements announced in 1996 are a major step backwards. Women’s access to legal aid is already severely restricted and the funding cuts will result in thousands more women missing out. The cuts will substantially reduce the availability of legal assistance in areas particularly relevant to women such as domestic violence protection, family law, criminal injuries compensation, defacto relationship property division, child welfare and discrimination.
Test cases
Rules of standing, cost rules and the withdrawal of the federal test case fund continue to hamper test cases in relation to women’s equality issues. Recent cases involving abortion, freedom of movement and issues in the financial sector have highlighted the need for a test case actions.
Back sliding in numerous areas
There has been a back sliding on the accessibility of complaints processes under the Sex Discrimination Act and a number of States have made dramatic cuts to the circumstances in which criminal injuries compensation can be claimed and reduced award limits. Those effected by these cuts include women victims of domestic violence, incest, and sexual assault. Policy relating to immigration and refugee status has tightened resulting in less sensitivity to the fact and ramifications of violence against women.
Aboriginal and Torres Strait Islander Women
Repeated reports, including Equality Before the Law, have highlighted the desperate plight of Aboriginal and Torres Strait Islander women and the failure of legal aid providers, including Aboriginal Legal Services to extend legal assistance. Aboriginal and Torres Strait Islander women are over represented in the criminal justice system, subject to appalling levels of violence, and suffer extreme social and economic disadvantage.
Urgent and concerted action by governments, the Aboriginal and Torres Strait Islander Commission and by legal aid providers is required to address the legal inequality of Aboriginal and Torres Strait Islander women.
International human rights obligations and women’s legal equality
The government is increasingly dismissive of its obligations under international human rights instruments and it is not clear whether the government accepts that it has any responsibilities arising from Australia’s ratification of CEDAW.
The government has recently asserted that it has no obligations relevant to the provision of legal aid arising from international instruments (ICCPR, CEDAW and others) and it has taken steps to attempt to limit the application of the Convention of the Rights of the Child in domestic law. The governments plans to substantially curtail native title rights stand to infringe rights of self determination and minority rights. Additionally, the government’s legislative response to a recent case involving secret Aboriginal women’s business may infringe freedom of religion.
Australian women are lobbying in support of the Optional Protocol to CEDAW.
ARTICLE 16 MARRIAGE AND FAMILY RELATIONS
Distribution of powers
Powers relevant to family and relationship matters continue to be distributed between the Commonwealth and the States. For example, the States have power in relation to child welfare matters, defacto relationship property division, same sex relationships and domestic violence protection. The results include substantial variations in rights and remedies, artificial and inequitable jurisdictional limitations, and diverse legal outcomes. A competitive approach to federalism has hindered rationalisation and revised legal aid funding arrangements will provide a further barrier.
Access to legal assistance and adjudication
Cuts to legal aid, unaffordable legal fees, substantial increases in Family Court charges (including the introduction of fees for voluntary counselling) are and will result in increasing numbers of women appearing in the Family Court without legal representation. Legal aid, where available, is increasingly running out mid trial and court lists have blown out due to the number of unrepresented litigants.
Mediation which is helpful in some cases has been overplayed as the solution in most cases. The regulation of mediation is inadequate and there are deficiencies in screening for power imbalance and violence. Government proposals to remove counselling services from the Family Court threaten access, choice, quality and effectiveness. Court support schemes exist at some courts but despite repeated recommendations these have not been extended.
Children’s matters
Women’s groups lobbied to ensure that women’s safety issues, issues of power imbalance, containment of costs and the proper regulation of mediation were addressed in the 1995 federal reforms relating to the children’s provisions of the Family Law Act. However, many of the proposals criticised by women’s groups were still enacted. A major success was an amendment which requires courts exercising jurisdiction under the Act to ensure safety from family violence in all proceedings under the Act.
The reforms have resulted in challenges which threaten women’s right of freedom of movement, attempt to elevate the right of the child to contact with the non residential parent over the paramount consideration of the best interests of the child and over women’s safety issues. The implications of the reforms are presently being tested in litigation and the impacts are not expected to be clear for some time.
Property division
Serious concerns arose in 1994 and 1995 about government reform proposals on matrimonial property. The proposed reforms stood to seriously disadvantage women by diminishing the importance of future needs considerations and in other ways. Long standing problems regarding the apportionment of superannuation on marriage breakdown were not addressed and proposals regarding the legal recognition of pre-nuptial agreements lacked adequate safeguards. The reform proposals lapsed due to the election but are likely to emerge again this year.
Powers concerning division of property on the breakdown of defacto marriage relationships are vested in the states and in a number of states the relevant law is archaic and biased against women. The federal government has failed to actively pursue a referral of powers by the states to enable the establishment of a uniform federal code.
Property rights arising from cohabiting same sex relationships are still not recognised under Australian family law.
Child Support
In most cases in Australia women are the ongoing carers of children following the breakdown of a relationship and this generally occurs by agreement between the parents. Women make up the majority of single parents with dependent children receiving government income support. The adequacy and effectiveness of the child support scheme is consequently crucial to the ability of many women to provide for their children.
Two child support schemes are operating in Australia. For people who separated after September 1986 or who have a child born after that date, formula assessment of child support is available through the Child Support Agency under the Child Support (Assessment) Act. Others must apply to the court for adjudication if child support is sought and agreement can not be reached. In both cases child support can be collected by the Child Support Agency under the Child Support (Registration and Collection) Act.
While there is strong support by women’s groups for the Child Support Scheme, the scheme continues to be hampered by under resourcing. The formula assessment and review processes are not producing fair or timely results in cases involving businesses, there has been insufficient emphasis on enforcement of arrears and suggestions about the use of mediation by the Child Support Agency are causing concern.
Women who must still apply to the court for child support (including those seeking child support for a dependant child over 18) suffer substantial disadvantage due to the cost, delay and complexity of the proceedings.
Convention on the Elimination of All Forms of Discrimination Against Women
Read the CEDAW Committee report card on Australia's progress on CEDAW: Committee on the Elimination of Discrimination Against Women Draft Report - Consideration of the third periodic report by Australia 7-25 July 1997 [on the Australian Human Rights Information Centre web site]
And take this link to the Australian government report [that is, the report under comment]
National Women's Justice Coalition