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Assess the effectiveness of legal attempts to improve the status of women. (Sample essay)

September 23, 2010 Leave a comment

Brainstorm:

  • The past … one paragraph … very general
  • Divide the essay into areas where excellent progress has been made and areas where progress still needs to be made …
  • Marriage … Family Law Act 1975
  • Right to vote …
  • Right to teritary and equal education …
  • Jury duty …
  • Right to own property …
  • Domestic violence
  • Discrimination in workplace  – article about pregnancy discrimination
  • Make the point about lack of access for migrant women
  • Promotion – problem of glass ceiling
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Sex Discrimination Commissioner seeking to expand investigative power

September 19, 2010 Leave a comment

At the present, the Sex Discrimination Commissioner and Commissioner Responsible for Age Discrimination, Elizabeth Broderick, who represents the Australian Human Rights Commission (AHRC), has the power to conduct investigation on the basis of complaints about gender discrimination as defined by the Sex Discrimination Act 1984 (Cth).  The AHRC (formerly the HREOC) also has these responsibilities:

  • holding public inquiries into human rights issues of national importance and making recommendations to address discrimination and breaches of human rights
  • developing human rights education programs and resources for schools, workplaces and the community
  • providing independent legal advice to assist courts in cases that involve human rights principles
  • providing advice and submissons to parliaments and governments to develop laws, policies and programs consistent with existing national laws and international human rights agreements
  • undertaking and coordinating research into human rights and discrimination issues.

However, the AHRC cannot initiate an investigation.  It can only conduct an investigation based on complaints.  This arguably hampers the effectiveness of the AHRC in combating sex discrimination, who can only be reactive rather than proactive.  This is what Elizabeth Broderick would like to change.

Sex discrimination chief wants power to initiate investigations (ABC News, 23 June 2010)

Sex Discrimination Commissioner Elizabeth Broderick says her office should be given the power to initiate investigations into sexual harassment in the workplace.

Ms Broderick says some workplaces need to be investigated even if there is no specific complaint from a worker.  She says sex discrimination is often built into work cultures and is difficult to tackle.

“We should be able to look at maybe organisations, maybe sectors where we know sexual harassment is more prevalent and really work to provide some more systemic response than relying on an individual complaint,” she said.

This would certainly increase the effectiveness of the AHRC and the legal instrument it seeks to carry out.  Note that the AHRC is not suggesting those investigations could lead to people being brought before tribunal, but more investigative power can lead to a more substantial “systemic response”.

Categories: human rights, Women Tags:

Gender Balance Bill (South Australia)

September 19, 2010 Leave a comment

One of the formal method of achieving justice for women as well as Aboriginal and Torres Strait Islanders has been the method of affirmative action. Affirmative action refers to policies that takes factors such as race, gender, ethnicity or religion into consideration in favour of a minority or disadvantaged group.  This can happen in employment, education, political representation or service provision situations. The purposes of affirmative action are to:

  • Promote equal opportunity,
  • Help disadvantaged groups overcome the legacies of long-term discrimination.

An example of campaign for affirmative action in favour of women in recent times is in the area of promotion to senior executive positions, especially in public boards.  This relates to a bill currently debated in the South Australian parliament.

Bill fires up gender debate (ABC News, 16 February 2010)

There was some fiery debate in the South Australian Parliament last night over the Government’s plan to get more women on boards and committees.

The Gender Balance Bill was passed by the Lower House with the support of some Opposition MPs.

Women hold just over a third of positions on public boards and committees in South Australia and the State Government hopes its bill will lift that to 50 per cent by the middle of next year.

During last night’s second reading of the legislation, Labor backbencher Lynn Bruer fired up the gender debate.

“Affirmative action policies are absolutely essential for women to get anywhere, we like to kid ourselves that we’ve come a long way with feminism but it’s absolute bullshit, we’ve got nowhere really,” she said.

Lynn Bruer’s support for the Gender Balance Bill rests on the argument that while there has been many advances for Australian women in overcoming discrimination, promotion to senior executive roles still presents an entrenched barrier.  This is often referred to as ‘glass-ceiling effect’.  The argument would go that since men have historically monopolize the executives in nearly all organisations, they are far less likely to promote women to senior executive positions on merit.

Lyn Bruer’s argument received this rebuke from the South Australian Opposition MP, Graham Gunn,

“There she goes, the honourable member has distinguished herself again, she wants people appointed on gender not on merit,” he said.

This is often heard argument against affirmative action, that it undermines merit selection.  Philosopher George Sher would argue that affirmative action demeans the achievements of those who got promoted, since there might be suspicions that she got promoted on the basis of her gender, rather than because of her accomplishment.  One might also argue that since women are the majority in nearly all Australian universities, it would only be a matter of time before more women gets appointed to the board on the basis of merit, thus nullifying the need for gender affirmative action.

Perhaps affirmative action is a blunt instrument best used against entrenched discrimination or legacies of past discrimination that would not go away.  Considering the past and present treatment of Aboriginal people in Australia, affirmative action in favour of Aboriginal and Torres Strait Islanders is still necessary.  However, gender affirmative action as outlined in Gender Balance Bill is perhaps more controversial.

Summary notes on women and the legal system

September 18, 2010 2 comments

The summary note below can also be downloaded (pdf) here.

1) Historical disadvantages that women faced

  • Traditional roles and attitudes
    • characteristics and behavior: women were expected to meek and mild.
    • expected role: daughters, wives, mothers
    • seen as property of the patriarchal figure
  • Marriage
    • Consortium
    • Unito caro: the notion that when a woman is married to a man, she is joined together with him.  This has implications for property rights and legal rights to enter into contract.
  • Political and Legal Constraints
    • Not entitled to vote
    • Denied tertiary education
    • Restricted to certain professions deemed appropriate for ‘ladies’
    • Not allowed or required to do jury service
    • Women’s employment did not receive equal pay
    • Women did not receive social security benefits
    • Married women not allowed to enter into contracts or open bank accounts without husbands’ approvals.
  • Particular disadvantages for migrant and indigenous women
    • Migrant: Cultural alienation, lack of English
    • Aborigines: Cultural alienation, double discrimination

2) Landmark cases and legislation

  • Tertiary education
    • Ada Evans v Sydney University 1902
      • Women were not guaranteed admission into the legal profession
    • Women’s Legal Status Act 1918 (NSW)
  • Right to vote in state and federal elections
    • 1902 legislation, granting the right to vote to adult women
  • Women allowed to own property and enter contracts
    • Married Women’s Property Act 1893 (NSW)
  • Custody of Children
    • Guardianship of Infants Act 1934 (NSW)
  • Jury Duty
    • Jury Act 1947 (NSW): giving women the right to serve as jurors, but did not make it a compulsory.
    • Jury Act 1977 (NSW): making compulsory for women to to serve as juror if called upon (which is what men have been required to do for decades.)
  • Access to equality in education
    • Leves v Haines 1986 (Equal Opportunity Commission)
  • Equal pay for equal work
    • 1969 Equal Pay Case, but not for work performed mainly by women
    • 1972 Conciliation and Arbitration Commission, which removed restrictions
  • Sexual harassment
    • Hall & Ors v Sheiban 1989 (EOC)
  • Domestic violence
    • Crimes (Sexual Assault) Amendment Act 1981 (NSW)
      • made marital rape a crime
    • Crimes (homicide) Amendment Act 1981 (NSW)
      • allows for lesser penalties for women who kill violent men (battered women’s syndrome)
    • Crimes (domestic violence) Amendment Act 1982 (NSW)
      • introduced Apprehended Violence Order (AVOs)
  • Family Law Act 1975 (Cth)
    • Introduced no fault divorce, making it easier to divorce
    • Often useful for women who seek to escape unhappy or abusive marriages
    • allowed for non-financial contribution in property settlements
  • Discrimination
    • Anti-Discrimination Act 1977 (NSW)
      • protects women against discrimination based on sex, race, marital status, homosexuality, age
      • sexual harassment in workplace a crime
      • established NSW Anti-Discrimination Board, Equal Opportunity Tribunal
    • Sex Discrimination Act 1984 (Cth)
      • A ratification of the CEDAW (Convention for the Elimination of Discrimination Against Women, 1979)
      • Covers discrimination based on bender, marital status and pregnancy
      • protects access to educational services, accommodation, goods and services, clubs
      • Established Human Rights and Equal Opportunity Commission (HREOC), now called Australian Human Rights Commission
  • Affirmative Action
    • Affirmative Action (Equal Opportunity for women) Act 1986 (Cth)
      • Principle of equal employment opportunity (EEO)
      • Established Affirmative Action Agency
      • programs for workplaces with 100 employees
      • improve access to promotion
      • the glass ceiling
Categories: Women Tags:

‘Women urged to sue to fix pay gap’ (Sydney Morning Herald, 2 September 2009)

September 1, 2009 Leave a comment

feminismDespite the past efforts of women’s liberationists, glass ceiling still exists for many women working in the corporate sector. Despite legislative enactments, women are actually still paid, on average, less than men for the same amount of work. They still continue to experience less opportunities for promotion than men.

This article discusses this issue, and looks into the legal options available for women who are still fighitng for equal pay and employment conditions.

Women urged to sue to fix pay gap‘ (Sydney Morning Herald, 2 September 2009)

AUSTRALIAN women need to sue if they want employers to take the widening gender pay gap seriously, international labour experts have told their Sydney sisters.
Men earn 17.5 per cent more than women, but a forum heard yesterday that a big stick – in the form of American anti-discrimination cases and payouts – could more quickly fix the problem than any awareness-raising.
Ms Hodges said she knew in 1980, when she was working as a lawyer in Australia, that she had to leave the country to get ahead. She is exasperated that the gender pay gap has only widened.
Canadian lawyer Mary Cornish, who chairs Canada’s Equal Pay Coalition and has advised governments and the World Bank on gender equity, agreed women ”have to have a litigation strategy”. She said one case could make a difference.
”If you don’t have a compliance approach, employers don’t do it, and neither do governments … You have to have some kind of stick.”
The Sex Discrimination Commissioner, Elizabeth Broderick, said that for women in the Australian workplace ”it is career death to raise … anything to do with sex discrimination”.
Ms Broderick said she had the power to run a pay discrimination case under the Fair Work Act. ”But to bring a case like that requires significant resources … We are just not resourced to use that power.”
The Federal Government is reviewing the Equal Opportunity for Women in the Workplace Act, and yesterday released an issues paper which questioned whether the enforcement powers of its agency – which relies on working co-operatively with employers and promotional programs – were adequate. Mairi Steele, acting director of the Equal Opportunity for Women in the Workplace Agency, said she believed the Australian law was not working effectively enough.

AUSTRALIAN women need to sue if they want employers to take the widening gender pay gap seriously, international labour experts have told their Sydney sisters.

Men earn 17.5 per cent more than women, but a forum heard yesterday that a big stick – in the form of American anti-discrimination cases and payouts – could more quickly fix the problem than any awareness-raising.

Ms Hodges said she knew in 1980, when she was working as a lawyer in Australia, that she had to leave the country to get ahead. She is exasperated that the gender pay gap has only widened.

Canadian lawyer Mary Cornish, who chairs Canada’s Equal Pay Coalition and has advised governments and the World Bank on gender equity, agreed women ”have to have a litigation strategy”. She said one case could make a difference.

‘If you don’t have a compliance approach, employers don’t do it, and neither do governments … You have to have some kind of stick.”

The Sex Discrimination Commissioner, Elizabeth Broderick, said that for women in the Australian workplace ”it is career death to raise … anything to do with sex discrimination”.

Ms Broderick said she had the power to run a pay discrimination case under the Fair Work Act. ”But to bring a case like that requires significant resources … We are just not resourced to use that power.”

The Federal Government is reviewing the Equal Opportunity for Women in the Workplace Act, and yesterday released an issues paper which questioned whether the enforcement powers of its agency – which relies on working co-operatively with employers and promotional programs – were adequate. Mairi Steele, acting director of the Equal Opportunity for Women in the Workplace Agency, said she believed the Australian law was not working effectively enough.

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‘Bar-Ilan prof. seeks global standard for fair divorce’ (Jerusalem Post, 3 August 2009)

August 5, 2009 Leave a comment

divorceThis proposal for a global standard for fair divorce by Israeli professor of law, Ruth Halperin-Kaddari is quite interesting.  It will probably face some initial difficulties, but the ensuing dialogues and conversations might in the long run bring about some paradigm shift about divorce and human rights.

Bar-Ilan prof. seeks global standard for fair divorce (Jerusalem Post, 3 August 2009)

A longtime legal advocate for women’s rights in Israel is poised to create a new international standard to protect women seeking divorce.

Ruth Halperin-Kaddari, a law professor at Bar-Ilan University, says dissolving a marriage or partnership can have severe economic consequences for women.

As vice president of a UN committee on women’s rights, she has led a working group on the economic impact of divorce since last year; on Tuesday, she will address the full committee, thereby launching the drafting process for new international guidelines that account for women’s housing rights and recognize their earning potential during divorce proceedings.

In UN terminology, Kaddari is seeking a new “general recommendation” for the Convention on the Elimination of All Forms of Discrimination against Women. The new article would lay out economic protections for those seeking divorce, says Kaddari, chairwoman of the Ruth and Emanuel Rackman Center for the Advancement of the Status of Women at Bar-Ilan.

Such a recommendation would have legal authority under the UN convention, the apparatus adopted in 1979 to guard women’s rights and prevent gender-based discrimination and violence. The convention has been amended a number of times since then, notably in 1992, when the committee issued general recommendation No. 19 to fight and eradicate violence against women.

Things have developed since then… we know much more about laws and how they affect women, especially the economics of marriage and the economics of divorce, and the economic consequences of divorce,” Kaddari said.

Categories: family law, human rights, Women Tags:

‘Afghan cleric defends marital law’ (Al Jazeera, 13 April 2009)

April 18, 2009 Leave a comment

flag of AfghanistanThe spokesperson for the Shi’ite clerics in Afghanistan, Mawlawi Habibullah Ahsam, have now spoken to the media, explaining how their proposed new law, which effectively legalises marital rape of Shi’ite Afghan women, is actually very ‘liberating’ and ‘permissive’ for women.

‘Afghan cleric defends marital law’ (Al Jazeera, 13 April 2009)

So far, it seems only Al-Jazeera has published statements by Ahsam.  The article is worth quoting in parts to further illustrate the tension between the universal notion of human rights and the right of nation-states to make laws that govern its own territories.  

Mohammad Asif Mohseni on Saturday accused Western critics of trying to meddle in Afghan affairs and insisted that the law offers women many protections… 

Westerners claim that they have brought democracy to Afghanistan. What does democracy mean? It means government by the people for the people. They should let the people use these democratic rights,” he said.

First of all, how does this law offer protection for Shi’ite women?  Mohseni explains,

… the law is permissive because it allows a woman to go out for a medical emergency or other urgent reason without asking.

He also said much of the uproar had come from people misinterpreting the law and that a woman could refuse sex with her husband for many reasons beyond illness, including fasting for Ramadan, preparing for a pilgrimage, menstruating, or recovering from giving birth.

Many of us might roll our eyes at the very notion that this new law is ‘liberal’ and ‘permissive’.  But Mohseni does have a point.  If this is the elected government of Afghanistan, and if the Afghan parliament has passed this law, and if this law clearly enjoys popular support, then surely this is Afghan democracy in action!  

Do criticisms of this new law by foreign powers constitute infringement of the sovereignty of Afghan democracy?