Australian Feminist Judgments: Righting and Rewriting Law

494 Pages·2014·3.146 MB·English

by  Heather Douglas, Francesca Bartlett, Trish Luker, Rosemary Hunter

AustrAliAn
This book brings together feminist academics and lawyers to present an impressive
collection of alternative judgments in a series of Australian legal cases. By re-imagining
original legal decisions through a feminist lens, the collection explores the possibilities, Feminist Judgments
limits and implications of feminist approaches to legal decision-making. Each case is
accompanied by a brief commentary that places it in legal and historical context and
explains what the feminist rewriting does differently to the original case. The cases not A
only cover topics of long-standing interest to feminist scholars – such as family law,
u
sexual offences and discrimination law – but also areas which have had less attention, righting and rewriting law
s
including Indigenous sovereignty, constitutional law, immigration, taxation and
t
environmental law. The collection contributes a distinctly Australian perspective to the r
growing international literature investigating the role of feminist legal theory in judicial A
decision-making. l
i
A
n

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Heather Douglas is a Professor and Francesca Bartlett is a Senior Lecturer at the m
TC Beirne School of Law, The University of Queensland.
i
Trish Luker is a Chancellor’s Postdoctoral Research Fellow at the Faculty of Law, n
University of Technology, Sydney. i
s
Rosemary Hunter is Professor of Law and Socio-Legal Studies at Queen Mary, University
t
of London.
J
u
d
‘If more people who become judges are aware of the gendered nature of law and the
g
overriding importance of equality, and more reflective about the fluidity of the judicial
m
role and the effect of power on the operation of law, there will be more judgments
which grapple with the concerns of these authors.’ e
Hon Sally Brown AM n
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s

All royalties from the purchase of this book will be donated to Women’s Legal Services Australia (WLSA)
to support the organisation to undertake law reform campaigns to achieve access to justice for women
and children.
douglAs,
BArtlett,
luker And
Hunter
edited By
HeAtHer douglAs, FrAncescA BArtlett,
trisH luker And rosemAry Hunter
www.hartpub.co.uk
Cover design: Simon Levy
Cover image: Madeleine Donovan, Two High, Shelving, 2003 © DACS 2014

AustrAliAn Feminist Judgments
this book brings together feminist academics and lawyers to present an impressive collec-
tion of alternative judgments in a series of Australian legal cases. By re-imagining original
legal decisions through a feminist lens, the collection explores the possibilities, limits and
implications of feminist approaches to legal decision-making. each case is accompanied
by a brief commentary that places it in legal and historical context and explains what the
feminist re-writing does differently to the original case. the cases not only cover topics of
long-standing interest to feminist scholars – such as family law, sexual offences and dis-
crimination law – but also areas which have had less attention, including indigenous sover-
eignty, constitutional law, immigration, taxation and environmental law. the collection
contributes a distinctly Australian perspective to the growing international literature inves-
tigating the role of feminist legal theory in judicial decision-making.

Australian Feminist
Judgments

righting and rewriting law
edited by
Heather douglas, Francesca Bartlett,
trish luker and rosemary Hunter
OXFOrd And POrtlAnd, OregOn
2014
Published in the united Kingdom by Hart Publishing ltd
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FOreWOrd
A judicial welcome is a quaint legal tradition. Having taken the oath or affirmation of office,
the newly appointed judge sits, either alone or with one or more of her new judicial colleagues,
and is addressed by lawyers representing those who will appear before her. Her life and achieve-
ments are rehearsed; for the first time, she is called Your Honour (‘Your Honour was born at
a young age, Your Honour’s leadership qualities were apparent in kindergarten . . .’); levels of
flattery and expectation are high. then – and this will swiftly become her norm – she has
the last say. For the first time, she hears her own voice projected from the bench towards
those in the courtroom; she thanks the speakers and others who have contributed to her life
and career, tells a self-deprecating tale or two and, perhaps, adds a few sentences of aspira-
tion before the court is adjourned and the real work starts.
When i was welcomed to the Family Court of Australia in 1993 i joined a bench (in
Victoria) of 11 men, two of whom sat with me. it had been five years since the Hon Peg
lusink, the first Victorian woman to be appointed to a court, had retired. i said (after the
customary and sincere round of thanks) that at her welcome i had been cautioned against
being the first judge to use the F-word – advice i had decided to ignore. the audience froze.
to my right, then Chief Justice Alastair nicholson sat, solid as a rock; he had weathered (and
would again) too many storms to be worried by the prospect of profanity. But from the
judge on his right came a sharp intake of breath and a stifled exclamation and to this day i
am unsure whether he thought the word i then uttered – feminist – to be better or worse
than the one he envisaged.
this was three years after Professors reg graycar and Jenny morgan published The
Hidden Gender of Law,1 and three years after Justice Bertha Wilson, the first woman
appointed to the supreme Court of Canada, made a speech titled ‘Will Women Judges
really make a difference?’;2 the Women’s electoral lobby had been created 21 years earlier
and there was a deal of writing and discussion about women’s rights. But for a practising
lawyer to call attention to the gendered nature of law and to declare herself a feminist was
to risk being labelled anti-male, shrill and – antithetical to judging – biased. indeed, Justice
Wilson’s speech brought down the wrath of the anti-feminist, conservative reAl women’s
organisation, which launched a complaint against her, alleging she was unfit to sit as a judge
because of her feminist bias.
did i, as a feminist, write feminist judgments? that’s for others to determine, but the
more interesting question is what is a feminist judgment? this book contains 24 of them,
plus a chapter which addresses the impossibility of writing a 25th, and 25 commentaries on
the judgments. the judgments are works of imagination, but they spring from recorded
facts and legal principles: each is a rewriting of a published judgment, informed by feminist
scholarship and reflection. in some, the feminist ‘judge’ reaches the same conclusion as the
1 reg graycar and Jenny morgan, The Hidden Gender of Law (Federation Press, 1st edn, 1990).
2 this lecture was first presented at the Osgoode Hall law school, York university, on February 8, 1990, and was
subsequently published as: Bertha Wilson, ‘Will Women Judges really make a difference?’ (1990) 28 Osgoode Hall
Law Journal 507.
vi Foreword
actual judge or judges but by a very different route; in some, the outcome is radically differ-
ent from the original, a dissenting judgment of force and originality. some reach conclu-
sions which might surprise; for example, a feminist judge disagrees with the reasoning of
the High Court which led it to find that a husband’s immunity for prosecution for rape of
his wife had ceased to be part of the common law of Australia by 1935. the rewritten deci-
sions span almost eight decades and raise a range of issues, from sentencing principles to
statutory interpretation, sexuality in refugee claims to the right of a lesbian to access artifi-
cial reproductive technology, propensity evidence to parental responsibility. the authors are
feminist scholars from diverse backgrounds: three are indigenous; some are young; all are
creative. i had the privilege of working with many of them at workshops in 2013 and wished
i had had the benefit of their scholarship and wit when i was writing judgments.
the book contains no definition of a feminist judgment, but consideration of the judg-
ments and commentaries suggest common themes. the feminist judge strives to consider
women’s experience as well as men’s; to resist assumptions about individuals’ actions and
capacities based solely on gender; to examine her own prejudices and biases; to focus on
context; to consider the potential of judicial notice; to refuse to be gender-neutral when
analysing gender-specific issues; to promote equality. there are questions of tone and of
voice; decisions about who is to be named, and how; questions of audience and of the use
of power.
And the point of it all? Perhaps the book will, as the editors write in their introduction,
reinvigorate interest and engagement with feminism in law school classes. Perhaps it may
encourage practising lawyers to develop new ways of using classic tools of precedent and
statutory interpretation to good effect, and push boundaries using new tools. But its central
and stated aim is law reform through altering legal discourse. law and text are inseparable.
Judges write and their words change the lives of those before them and, sometimes, the lives
of countless others. if more people who become judges are aware of the gendered nature of
law and the overriding importance of equality, and more reflective about the fluidity of the
judicial role and the effect of power on the operation of law, there will be more judgments
which grapple with the concerns of these authors.
Finally (and perhaps heretically), read these judgments and commentaries for fun.
Parody, imagination and the critique of law have rarely merged so seamlessly.
Hon sally Brown Am
12 April 2014
ACKnOWledgements
this book is the result of the collaborative endeavour of a wonderful group of academics
and practitioners and there are many people to acknowledge. First we thank the authors of
the judgments and commentaries collected here. it was a great experience to work with you
all and we appreciate your enthusiasm and patience on this journey. Our gratitude is
extended to the Hon sally Brown Am. sally read and commented in detail on nearly all of
the drafts of the commentaries and judgments in this collection. she attended workshops
in both sydney and melbourne and gave warm and generous feedback to everyone involved.
the collection is much better as a result of her efforts.
several judges attended our workshops and shared their experiences and reflections
about judgment writing with the project participants. in Victoria, we thank Justice marcia
neave AO of the Victorian Court of Appeal and Justice Jennifer Coate of the Family Court
of Australia. in sydney, we thank Justices elizabeth Fullerton and lucy mcCallum of the
supreme Court of nsW and magistrate margot stubbs of the local Court of nsW. in
Brisbane, we thank President margaret mcmurdo AC of the Queensland Court of Appeal
and Judge Fleur Kingham of the district Court of Queensland. many others who are not
represented in this collection also attended workshops and commented on the process of
judgment-writing and on the drafts of judgments and commentaries. We thank them all for
their support and valuable ideas.
in melbourne, our workshops were hosted by the melbourne law school at the university
of melbourne and they would have been impossible to organise without the generous assis-
tance of Associate Professor Wendy larcombe. Our workshops in sydney were hosted by the
Faculty of law at the university of technology sydney and in Brisbane by the tC Beirne
school of law at the university of Queensland. We thank these institutions for their sup-
port. We also thank the tC Beirne school of law for providing seed funding for the project,
which allowed us to hold an initial meeting of interested participants in 2010 to discuss the
possibilities for feminist rewritings of Australian judgments.
Professor Kim rubenstein provided a steady stream of articles of interest to the project,
some of which have helped to inform the initial chapters of this collection. thanks also to
Professor erika rackley for reviewing and providing helpful comments on earlier drafts of
Chapters 1 and 2. We also acknowledge the contribution of Charlotte steer for suggesting
the title for this collection. A number of hardworking research assistants have assisted us
throughout the course of this project. thanks to sreedhevi ramachandran, ruth Walker,
Catherine Carol, Kate thomas, rebekah Oldfield and sian littledale.
thanks also to madeleine donovan for allowing us to use her image ‘two High, shelving,
2003’ (licensed by dACs, 2014) which appears on the cover of this book, and to Helen maxwell
for suggesting this work. We also thank sofia Wood from Shortie Designs who designed the
website we developed for the Australian Feminist Judgments Project http://www.law.uq.edu.
au/the-australian-feminist-judgments-project. Finally we thank the Australian research
Council for funding this project under the discovery Project scheme (dP12012375).
Any errors or omissions are the responsibility of the editors and contributors alone.