Alternative Law Journal
The impending retirement of Chief Justice Alistair Nicholson from the Family Court of Australia is being seen by many as providing the Commonwealth Government with 'opportunities' for change. The Attorney General Phillip Ruddock (who has recently added 'civil liberties' to his list of hobbies in Who's Who) is keeping very tight-lipped about the Government's plans. This is in stark contrast to the extensive public consultation that took place during the 1970s, which led to the establishment of the Family Court of Australia under the Whitlam Government and is an indicator of just how conservative Australian politics has become.
Prior to the enactment of the Family Law Act 1975, couples wishing to divorce had to play the shame and blame game. This usually involved catching the guilty party bonking someone other than her or his betrothed and kept many a shady little Dick in work taking dirty pictures and spying on putative divorcees. The Family Low Act has been a significant and important reform in family law with a shift from parents' rights in custody disputes to the notion of 'the best interests of the child'. Critics of the Court are many and varied and some even cite bombings and attacks on judges as a measure of its 'failure'. Seems an odd sort of performance assessment measure to use.
The Family Court has not been without its problems and justice Nicholson has acknowledged this. He has agreed that the adversarial system has flaws, and struggles to deal appropriately with the problems and conflicts that families face when divorce is involved. Late last year a federal parliamentary inquiry recommended the establishment of a family tribunal which would exclude lawyers and hear all but the most difficult child custody disputes.
Phillip Ruddock's enthusiasm for locking up asylum seekers and showering extraordinary powers on the Australian Federal Police and ASIO caught the attention of Jason Koutsoukis (The Age, 31 March 2004). Koutsoukis asked a spokesperson to justify Ruddock's claim to civil liberties cred. The spokesperson must have had a very merry sense of humour because his response was: 'Through his membership of Amnesty International and through the implementation of Coalition Government policy. The Minister also takes very seriously the concept of encouraging debate amongst people in the community on government policy, and the promotion of the importance of civil rights through that debate.' So what are you going to do about the Family Court, Mr Attorney? Debate is all very well but the concepts of consultation and providing information to the commumity are also important components of civil liberties and democracy.
Conservatism certainly isn't unique to Australia. In the United States of America, legislation has been passed that recognises a foetus as separate from its mother during a violent crime. The Unborn Victims of Crime Act would mean that if a person kills the mother and the unborn child then that offender would be sentenced for the deaths of two people. Critics of the law are concerned that it is a 'back door' way of furthering a more conservative agenda -an eventual ban on abortion.
Had your bum pinched at work today? If so you are one of more than 10% of Australian adults who have been sexually harassed at work according to a study by the Human Rights and Equal Opportunity Commission. Most of the assaultees are women, but 6% are men. And, as Prue Goward told The Australian (24 March 2004), 'that's a lot of people having their buttocks grabbed or breasts rubbed'. These statistics make Westco's bid to have their employees wear T-shirts with the words 'Go on admit you want me' look very stupid indeed. All praise to the women who stood up to their employer and refused to wear the T-shirts. Westco has since retracted.
Writing in The Australian (24 March 2004), Janet Albrechtson questions the notion of affirmative action as it applies to the Commonwealth Government's plans to introduce exemptions to the sex discrimination laws to allow special scholarships for male teachers. She considers this to 'reek of special privileges based on something other than merit'. She argues male teachers are not being discriminated against – men just aren't interested in being teachers.
Responding to Albrechtsen, Assoc Professor Beth Gaze points out that affirmative action allows scope for 'the basic principle of equality; those who are in like situations should be treated alike, but those situated differently may need to be treated differently in order to be fair overall'. She cites former High Court Justice Mary Gaudron who said the fact that discussion of merit occurs only when a woman is appointed to a position is clear evidence that women are not regarded as meritorious. Gaze continues, 'If affirmative action can open the door for women to be considered on their merits, and not excluded merely because they are not men, it serves its purpose well. Unfortunately, some men are not happy about sharing opportunities with women. Some politicians can't resist the opportunity to undermine Australia's achievements towards equality.'
CONNIE SERVATIVE is a feminist lawyer.