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Dunn, Kristie --- "Yakking Giants': Equality Discourse in the High Court" [2000] MelbULawRw 16; (2000) 24(2) Melbourne University Law Review 427


CRITIQUE AND COMMENT

'Yakking Giants': Equality Discourse in the High Court[*]

KRISTIE DUNN[†]

[The author explores the decision of the High Court of Australia in Garcia v National Australia Bank Ltd in light of feminist debates about equality and, in particular, about the desirability of gender-neutral and gender-specific principles. The three judgments take different approaches to the question of whether the special equity principle developed in Yerkey v Jones, which has traditionally applied only to married women guarantors, should still be applied or whether, as a gender-specific rule, it is outdated. It is argued that, despite the varied approaches, all three judgments rely on assumptions of women’s difference to account for the fact that sexually transmitted debt primarily affects women. The author concludes that, regardless of the approach taken to the issue of gender-neutral or gender-specific principles, any analysis of sexually transmitted debt must recognise the relevance of structural gender inequality, particularly with respect to married women. As Garcia v National Australia Bank Ltd illustrates, without such an appreciation, stock stories about women’s inherent difference are invoked at the expense of a more complex understanding of the gendered nature of sexually transmitted debt.]

I INTRODUCTION

The issue of sexually transmitted debt has become particularly prominent in the last decade or so. The phrase was coined to describe the scenario in which a person agrees to guarantee the debts of their spouse or partner in circumstances where the relationship, rather than an appreciation of the reality of the responsibility, is the main impetus for the assumption of responsibility.[1] Overwhelmingly, the person guaranteeing the debt is a woman, and in most reported cases she is married to the debtor.[2] While the type of security provided can take several forms,[3] the debt is typically secured by a mortgage over the family home. The effect of enforcing the security, then, can be profound, particularly when the home is the main or only asset of the couple. While there have been some legislative responses in other jurisdictions which attempt to prevent the use of the family home as security in this manner,[4] this has not been considered an appropriate approach in Australia or the United Kingdom. Instead, there has been a focus on ways to redress the information imbalance that is a feature of guarantee transactions.[5] This has occurred both at the legislative and judicial levels as courts have been faced with an increasing number of challenges to guarantees in recent years.[6]

While the common law assumes that parties to a contract are essentially equal, self-interested and acting out of free will, sexually transmitted debt cases are marked by imbalances of power in two ways. Firstly, there is a clear power imbalance with respect to the relationship between the creditor and the guarantor. While the issue is sometimes portrayed as a contest between two innocent parties, the creditor is in fact relying on the guarantor to assume a risk that it does not wish to bear even while it benefits from the interest it earns from the debt.[7] In taking up the risk, the guarantor is disadvantaged by a lack of access to information about the transaction and the possible risks associated with it, and will generally have limited experience of such transactions compared with the creditor.[8] In addition, the guarantor obtains no direct benefit from the transaction. Secondly, the decision of the guarantor to assume the obligation is often affected by pressure or misconduct on the part of the debtor. This can range from the assumption that the guarantor will support the debtor, to negligent or deliberate misrepresentation of the risk, to severe emotional pressure, to physical violence. This pressure is compounded by the fact that in many third party guarantee situations, particularly those involving married female guarantors, their economic security is bound up with the debtor’s such that any notion of choice as to whether or not to sign becomes illusory.

While many sources have analysed the benefits or otherwise of the various legal responses to the problems of sexually transmitted debt,[9] this article does not purport to engage in such an exercise. Rather, I am interested in examining how gender inequality is talked about, or not talked about, in discussions about sexually transmitted debt. In this article, I explore how notions of equality and inequality figure in the attempt of the High Court in Garcia v National Australia Bank Ltd[10] to resolve the question of whether the special equity principle developed in Yerkey v Jones,[11] which has traditionally applied only to married women guarantors, should still be applied or whether, as a gender-specific rule, it is outdated. This question, which has received a great deal of judicial attention in recent years, overlaps with one of the key debates in feminist legal theory: namely, the debate about whether equality means treating women ‘the same as’, or differently from, men. At the heart of this debate is the tension between the common law’s traditional focus on formal equality, which underlies the overwhelming judicial preference for gender-neutral legal principles that treat women ‘the same as’ men, and the arguments of many feminists that gendered phenomena such as sexually transmitted debt may require gender-specific principles to ensure substantive equality. As I shall argue, however, this debate has a tendency to centre around the question of how the law should respond to the ‘problem’ of women’s difference without challenging the assumption of a primary and natural sexual difference, and without conceptualising that difference as a product of historical and ongoing inequality. As a result, while commonly perceived as a ‘women’s problem’, sexually transmitted debt is not often conceptualised as an ‘inequality issue’. It is my argument that, regardless of the approach taken to the issue of gender-neutral or gender-specific principles, any understanding of sexually transmitted debt that does not recognise the relevance of structural gender inequality, particularly with respect to married women, falls back on, and reinforces, stereotypical assumptions of women’s inherent difference at the expense of a more complex understanding of the gendered nature of the phenomenon.

In this article I explore how this invocation of women’s difference occurs in the three High Court judgments in Garcia — in the majority’s[12] justification for the retention of the gender-specific rule in Yerkey, in the judgment of Callinan J, and in Kirby J’s gender-neutral approach, which largely follows the House of Lords in Barclays Bank plc v O’Brien.[13] I then suggest how a subordination approach and, in particular, an emphasis on economic inequality within marriage, might allow us to move away from unexplained and naturalised assumptions about women’s difference to a more nuanced understanding of the variety of factors associated with women’s decisions to enter into security transactions. Such an approach, which allows us to focus on the issue of structural inequality within marriage, may also allow us to move beyond the dichotomised model of subjectivity in which ‘special protection’ is available only to those women who fit traditional stereotypes of ignorant and dependent wives.[14] Despite criticisms of the subordination approach on the basis that it is universalising and does not account adequately for differences amongst women, I am interested in exploring the possibilities of this approach in relation to sexually transmitted debt, given its centrality within feminist jurisprudential debates about equality.

A major theme of this article is that it matters how we talk about gender — what we say and what we don’t say. In particular, it matters how judges talk about gender. The power of judicial discourse to define the social meaning of gender, to ‘create’ women’s lives,[15] is profound. In Garcia we can see this clearly in the development of a judicial ‘precedent’ about women’s roles within marriage, and their choice to leave decisions to their husbands. While we cannot always turn to law for solutions — indeed, Smart argues that we should resist such an approach[16] — we should not conclude that law does not matter. To the contrary, an important aspect of feminist legal theory is to uncover the ways in which law produces and defines gender and gender difference.[17] This occurs both through what is said and what is not said, for refusing to talk about gender is not a neutral position in a society where gender continues to matter in profound ways. Thus it is my argument that whether or not we explicitly talk about gender or gender equality, we are always already engaged in the process of defining it.

II THE HISTORY OF THE SPECIAL EQUITY PRINCIPLE

According to Latham CJ in Yerkey, the special equity principle stems from an historical so-called ‘special tenderness’ of Chancery Courts towards married women guarantors.[18] It is one of many equitable principles that arose in response to the harshness of the common law principles with respect to married women’s capacity to deal with property.[19] Prior to the Married Women’s Property Acts[20] married women were unable to hold or deal with separate property as an incident of their legal incapacity.[21] Marriage automatically involved a transfer of legal title to any property owned by the woman to her husband, who was able to deal with it as he wished.[22] In equity, however, married women were capable of owning and dealing with a separate equitable estate. This included the wife’s capacity to make a gift of her equitable estate to her husband as if she were a feme sole.[23] Despite this capacity, courts of equity were watchful of such transactions as the equitable doctrines had developed precisely to protect the property of married women from their husbands.[24] It was also recognised that the parties to such transactions were not dealing at arm’s length.[25] According to Dixon J in Yerkey, while there was no presumption of undue influence as between husband and wife,[26] voluntary dispositions from wife to husband would nonetheless attract the notice of certain ‘equitable presumptions of an invalidating tendency’.[27] These presumptions concerned not only the relationship between the husband and wife, but also applied to third parties dealing with the wife through the husband.

What is now referred to as ‘the principle in Yerkey v Jones’ arose out of this background, and was developed by Dixon J in the context of a case involving a woman who gave a guarantee in the form of a mortgage over her land in order for her husband to acquire a business.[28] Specifically, the principle concerns the obligations and liability of creditors vis-à-vis married women who act as guarantors for the debts of their husbands. There are two ‘limbs’ of the principle. The first applies where the bank leaves the husband to procure his wife’s signature on a guarantee and the husband exerts undue influence in obtaining her signature. In this situation, unless the bank ensures that the woman receives independent legal advice, it will be bound by the equity arising between husband and wife even if it had no notice of the undue influence.[29] Notice of the marriage is all that is required for the creditor to be ‘infected’ with the debtor’s undue influence. The second limb is summarised by Dixon J as follows:

[I]f a married woman’s consent to become a surety for her husband’s debt is procured by the husband and without understanding its effect in essential respects she executes an instrument of suretyship which the creditor accepts without dealing directly with her personally, she has a prima-facie right to have it set aside.[30]

As the above discussion has suggested, the principle in Yerkey provides an avenue for redress for married women that is not available to other guarantors.[31] Both limbs remove the key element of third party liability under the equitable doctrines of unconscionability and undue influence: that the creditor have actual or constructive knowledge of the debtor’s wrongdoing in order to be fixed with equities arising from the guarantor–debtor relationship. Indeed, the second limb places an obligation on the creditor to ensure that the guarantor understands the transaction regardless of any wrongdoing between guarantor and debtor. This obligation far exceeds that which is owed to guarantors under the common law.[32] For this reason, the principle has attracted a considerable amount of judicial criticism in the last decade or so on the basis that it is a ‘special rule’ for married women.[33] There are two related arguments behind these criticisms. One highlights the beneficial nature of the special rules, and argues that married women should not receive beneficial treatment as compared to other guarantors. The second sees the presumption of an invalidating tendency as paternalistic in the sense that it assumes that married women are unable to protect their own interests.[34] Both views rest on a model of formal equality, or equality as sameness, in which different treatment is presumed to be discriminatory treatment. The only difference between the approaches is that under the former approach non-married women are seen to be discriminated against, whereas under the latter approach married women are seen to suffer from discrimination. This distinction depends on whether one views the special rule as beneficial or detrimental to married women.

The most frequently advocated Australian solution to this ‘dilemma of difference’ is to abolish the principle altogether, on the basis that the equitable doctrine of unconscionable dealing as outlined by the High Court in Amadio[35] can provide adequate protection for all guarantors without requiring that married women be treated differently from other women and from men.[36] Similarly, the approach of the House of Lords in O’Brien[37] abolishes the distinction between married and unmarried guarantors, and imposes constructive notice on creditors dealing with guarantors of either sex who are known to cohabit with the debtor, where the transaction is on its face disadvantageous to the guarantor. Failure to provide independent legal advice to such guarantors will render the guarantee voidable at the guarantor’s election if a legal wrong can later be shown to have been committed by the debtor at the time the guarantee was executed.

The status of the principle in Australia had become progressively more unstable prior to the High Court’s decision in Garcia. The New South Wales Court of Appeal had been particularly critical of the principle and, in the 1994 case of Akins,[38] Clarke JA, supported by Sheller JA,[39] held that the principle should no longer be applied in New South Wales.[40] Special leave to appeal to the High Court was denied,[41] thus leaving the status of the principle in doubt. Subsequent decisions reflected this uncertainty,[42] which was exacerbated by the Court of Appeal decision in Garcia and finally resolved on appeal to the High Court in 1998.

III GARCIA V NATIONAL AUSTRALIA BANK LTD — FACTS

In 1979 Jean Garcia and her husband executed an all-moneys mortgage over their home in favour of what was to become National Australia Bank Ltd (‘NAB’). The mortgage was originally given to secure a A$5000 loan to Mr Garcia for use in his business, but was still in operation when legal proceedings commenced in 1990, serving as security for all moneys owing to the bank by the Garcias. In addition to the mortgage, Jean Garcia signed four guarantees between 1985 and 1987 in favour of the bank as security for the debts of her husband’s businesses. Three of these related to the business ‘Citizens Gold’ of which Jean Garcia was a nominal director and shareholder. Mr Garcia left Mrs Garcia in 1988, and in 1989 the business was wound up and Mr Garcia arrested. A year later Mrs Garcia went to the Supreme Court of New South Wales seeking declarations that the mortgage and the guarantees she had signed were of no effect or void. Two months later the NAB demanded payment under the 1987 guarantee and under the mortgage of A$327189.69 owing to it by Citizens Gold. It then proceeded to cross-claim in the proceedings initiated by Mrs Garcia, claiming possession of Mrs Garcia’s home and of the sum owing under the guarantee. At first instance Young J found that the November 1987 guarantee had been signed under circumstances of pressure.[43] Mrs Garcia believed, due to her husband’s misrepresentation, that there was no risk involved.[44] Further, the bank had failed to adequately explain the transaction to her, merely pointing out where she should sign rather than explaining the nature and effect of the transaction.[45] As a result she was eligible for relief under the second limb of the Yerkey principle.

After being overturned by the New South Wales Court of Appeal,[46] Young J’s judgment was affirmed by the High Court, which unanimously held that Mrs Garcia was entitled to relief. The three judgments, however, rest on quite different bases. Callinan J held that the principle in Yerkey was still good law and should be retained. Unlike the majority, he did not think it appropriate to restate the principle in a gender-neutral way, stating that changes in sexual and matrimonial relationships had been ‘perhaps more apparent than real’,[47] and he did not doubt that ‘there are likely today to be many married women still in need of the special protection that Yerkey offers.’[48]

The majority judgment, on the other hand, affirmed the Yerkey principle, but in doing so appeared implicitly to reformulate the principle from one that was applicable only to married women guarantors to a gender-neutral principle ‘based on trust and confidence, in the ordinary sense of those words, between marriage partners.’[49] The majority used gender-neutral language throughout the judgment, despite the historically gender-specific nature of the principle. Further, it foreshadowed the application of the principle to male guarantors, and to guarantors of either sex who are unmarried but who are in heterosexual and same-sex relationships involving trust and confidence.[50] This potential extension of the principle is consistent with the majority’s analysis that, rather than being a discrete rule for the protection of married women, the principles expressed by Dixon J were particular applications of the broader equitable principle expressed by Mason and Deane JJ in Legione v Hateley: namely that ‘a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct’.[51] In this context,

[t]o enforce the transaction against a mistaken volunteer when the creditor, the party that seeks to take the benefit of the transaction, has not itself explained the transaction, and does not know that a third party has done so, would be unconscionable.[52]

In contrast, Kirby J rejected the principle in Yerkey altogether, on the basis that it was an ‘historical anachronism’ and an ‘unprincipled discriminatory category’. He argued forcefully that it was inappropriate to treat married couples differently from unmarried couples, and inappropriate to treat women differently from men.[53] He preferred the approach of the House of Lords in O’Brien, which is gender-neutral and applies to all debtor–guarantor relationships involving emotional dependence rather than being confined to marriage.[54] Applying this principle to the case, Kirby J held that the bank knew of the emotional relationship between Mr and Mrs Garcia and it therefore had constructive notice of the misrepresentation by Mr Garcia with respect to the guarantee. As a result, the bank was unable to enforce the guarantee since, on the facts established by Young J, it had failed to take reasonable steps to satisfy itself that Mrs Garcia entered the transaction freely and with knowledge of the relevant facts.

IV ANALYSIS

A key issue addressed by these three judgments, whether explicitly or implicitly, is how best to achieve equality for women. Specifically, the issue to be determined is whether or not the continued application of the principle in Yerkey, which applies to married women only, is appropriate. More broadly, however, the debate raises intensely political questions about the meaning of equality and the relationship between the liberal ideal of gender-neutrality in legal principles and gender-specific rules designed to promote substantive equality. These issues are also central to debates about goals and strategy within feminist legal theory.

A Formal Equality

As outlined above, there has been a trend in recent years for judges to criticise the principle in Yerkey on two bases: that it accords special benefits to married women, which is inconsistent with gender equality, and, often concurrently, that it is paternalistic and does not promote married women’s equality. As I have suggested, both criticisms rest on a model of equality as sameness, in which different treatment is assumed to be discriminatory treatment. Under the first, married women are seen to be asking for special rights which discriminate against unmarried women and men, and under the second, married women are being treated as in need of special protection, which is paternalistic and discriminatory against married women. The ‘double discrimination’ of the rule is expressed clearly in the following passage by Kirby J in Garcia, where he states that to endorse the principle

is to accord legitimacy to a discriminatory rule expressed in terms which are unduly narrow, historically and socially out of date and unfairly discriminatory against those who may be more needful of the protection of a ‘special equity’ but who do not fit within the category of married women.[55]

The notion that a gender-specific principle can be discriminatory both against women and against men only makes sense if formal equality, or the right to be treated the same regardless of gender, is considered to be a fundamental right.[56] Under the formal equality model, ‘[e]quality ... means the ignoring of differences between individuals.’[57] Accordingly, sex discrimination becomes understood as being different treatment on the basis of gender. Kirby J has on many occasions expressed concern with gender-specific classifications, preferring gender-neutral principles.[58] In Garcia we can clearly see this position in his statement that ‘this court should, where possible, refuse to “classify unnecessarily and overbroadly by gender when more accurate and impartial principles can be stated.”’[59] The stated purpose of this approach is to remove offensive and outdated stereotypes of women’s incapacity.

Kirby J’s emphasis on the formal aspects of equality is consistent with the dominant understanding of equality both in equity and in discrimination law.[60] As Dianne Otto has suggested, while equity is concerned with inequalities of power and has developed a language which could potentially acknowledge systemic or structural inequality, ‘[t]he historical focus of Equity’s concern with equality has been on achieving a proportionate and formal equality between parties to legally regulated transactions.’[61] While the discretionary and flexible nature of equity has led to a focus on its role in providing relief in individual cases,[62] equitable presumptions have nonetheless arisen in recognition of the fact that some relationships involve inherent imbalances of power.[63] However, the marriage relationship has not, as we have seen, been considered to be such a structurally unequal relationship.[64] Similarly, gender inequality has not been considered to be an appropriate basis for equitable relief.[65] As the cases on sexually transmitted debt reveal, classifications on the basis of gender are increasingly considered to be ‘anachronistic’, and gender-neutral doctrines such as the Amadio doctrine of unconscionable dealing are seen to be consistent with the promotion of gender equality.

B Sameness–Difference

While formal equality, or the claim that equality will be achieved through policies that treat men and women the same, has undeniably had historical force and has been effective in removing overt gender discrimination, feminists have pointed to a number of deficiencies. Most significantly, it not only suggests that gender should not matter in principle, but it assumes that gender does not in fact matter in practice. It confuses the goal of gender neutrality with the reality.[66] Mistaking formal equality for substantive equality is part of the ‘no-problem problem’ identified by Deborah Rhode.[67] In other words, one of the major problems that has faced feminists in the past decade has been the widespread denial of gender inequality. There are three basic themes of denial identified by Rhode: (a) the denial that gender inequality still exists; (b) the denial of injustice, or the rationalisation of that inequality as the product of women’s own choices and capabilities; and (c) the denial of responsibility by individuals for the problem and its solutions. Rhode’s work suggests, then, that the application of gender-neutral rules to a society marked by gendered hierarchy will not only fail to result in substantive equality, as many feminists have argued,[68] but will contribute to the denial of persisting inequalities.

The common alternative to equality as sameness, or gender-neutrality, is the argument that women’s differences from men should be recognised and valued. It is this approach that has traditionally formed the basis of arguments for gender-specific rules.[69] As Rhode’s schema suggests, however, this model can similarly lead to a denial of substantive inequality. This occurs through the rationalisation of inequality as difference; as based on women’s different choices and capacities.[70] This argument is continually played out with respect to the disparity between men and women in upper levels within workplaces. Women are seen as choosing part-time work or more flexible roles in order to accommodate their family responsibilities. This choice is seen as peculiar to women and is implicitly based on a notion of women’s biological difference. Thus, any hint of structural or gendered inequality is rationalised through the attribution of this widespread social phenomenon to the choices of individual women, even while universalising notions of women’s biological difference are being invoked. Further, the invocation of ‘women’s difference’ leads to circular and universalising debates about the origins of that difference, which ultimately reinforce women’s difference from men as the primary difference and obscures the differences amongst women and amongst men.[71] Finally, identifying women as different fits too easily within existing gender stereotypes which have traditionally been invoked to justify less favourable treatment of women.[72] As Rhode outlines, this was often done under the guise of protecting women.[73] Thus, arguments for gender-specific rules based on notions of women’s difference run the risk of being translated as demands for special protection in law,[74] which merely serve to reinforce paternalistic notions of women’s dependence.[75]

C Special Protection and Women’s Dependence

As Graycar and Morgan observe, ‘[t]here is a long history of the law’s treatment of women as the dependants of men.’[76] Callinan J’s judgment in Garcia illustrates the traditional linkage of difference and dependence, largely through his failure to explore the reasons why special protection for married women is still required. In his view, the rule in Yerkey is good law and is still needed to provide ‘special protection’ to married women. Without discussing why, he states that he does not doubt that ‘there are likely today to be many married women still in need of the special protection that Yerkey offers.’[77] This statement, made without any explanation of why married women might need such protection, assumes that we all know why such protection would be required. The statement relies on assumptions of a shared knowledge, or common sense, to fill the gap in his reasoning.[78] Given the traditional linkage of women and dependence, and absent any discussion of economic inequality or power relationships within marriage which may provide an alternative basis for retaining the special rule, it is difficult to avoid the conclusion that the way we, as readers, are being asked to fill the gap is by relying on stock stories of women’s dependence within marriage.[79] Secondly, while Callinan J states that protection is still needed, and that changes within sexual and matrimonial relationships may perhaps have been more apparent than real, he then goes on to state that, as a result of the ‘enhancement of women’s opportunities and relief from discrimination’, applicants like Mrs Garcia will generally have a difficult time convincing courts that they succumbed to pressure or were misled by their husbands in financial matters.[80] While he accepts that Mrs Garcia was pressured by her husband to sign the document, he states ‘[v]ery rarely will such findings ... be open in the case of a wife with the qualifications, experience and other attributes possessed by this appellant.’[81] Thus, at the same time as Callinan J still sees the need to protect married women, he suggests that women like Mrs Garcia will increasingly be unable to succeed. This distinction between married women generally, who are deemed to require protection because of their assumed dependence, and professional women like Mrs Garcia, who can be seen to resemble the male standard and will therefore, it is implied, not be able or allowed to invoke the special rule, does not allow for any model of female subjectivity between this dichotomy of dependence–difference and independence–sameness. This reinforces the notion that the special protection is only available to women to the extent that they are different from and, implicitly, dependent on men.

D Same Difference

Despite the presentation of the sameness–difference approaches as a dichotomy, feminists have explored the ways in which both models work together within formal equality discourse.[82] This occurs through the notion of a primary and natural sexual difference, which is considered foundational even while gender-neutral policies state it to be irrelevant. Thus, the formal equality assertion that equality for men and women means to treat them in the same way is only necessary because it is understood that men and women are not the same.[83] Rather than recognising that men and women are equally different from each other, however, the identification of difference in a phallocentric order invariably leads to the marking of Woman as different, which is then mistaken for an intrinsic trait.[84] Thus in both models, the Man–Woman binary identifies Man as the norm and Woman, as the other, comes to embody ‘difference’. The construction of women as always already being intrinsically different guarantees that Man remains the measure of all things,[85] and ensures that existing structures and policies are taken to be neutral.[86] Hence, the notion of a foundational difference between men and women, and the location of that difference in Woman, serves to justify existing inequalities and places a firm limit on the liberal promise of equality. As MacKinnon puts it, ‘a discourse and a law of gender that center on difference serve as ideology to neutralize, rationalize, and cover disparities of power, even as they appear to criticize or problematize them.’[87]

This recognition that difference, and in particular the marking of Woman as different, is at the heart of both the sameness and difference approaches has led feminists to try to think of ways to argue for equality without merely reinforcing this notion of an original and naturalised sexual difference. MacKinnon’s dominance approach, also referred to as the subordination or disadvantage approach, has become the most widely adopted and debated amongst feminist legal theorists. MacKinnon’s attempt to move feminist arguments beyond this unproductive dichotomy involves conceptualising gender inequality not as a product of gender difference, but as a product of dominance. Rather than accepting sexual difference as a natural and significant division which pre-exists gender inequality, she argues that sexual difference, and therefore gender, only have meaning because of the difference in power between men and women.[88] As she puts it: ‘there would be no such thing as what we know as the sex difference ... were it not for male dominance.’[89] Thus, MacKinnon conceptualises the notion of sex difference as an ideological tool of male dominance, which serves to naturalise gender hierarchy and male power through notions of women’s difference.

E The Subordination Approach

The subordination approach, then, shifts attention from the question of whether women and men are different or the same, to the question of whether a particular approach operates to maintain women in a subordinate position. The question becomes less whether gender neutrality or gender-specificity are, per se, preferable, and more about the particular effects of a principle in the context of existing gender inequality. By focusing on the origin of the principle, and by examining its contemporary economic and social effects, we can move away from notions of women’s difference and concentrate on women’s social positioning. As Rhode argues:

In legal contexts, the legitimacy of sex-based treatment should not depend on whether the sexes are differently situated. Rather, analysis should turn on whether legal recognition of gender distinctions is likely to reduce or reinforce gender disparities in power, status, and economic security.[90]

The subordination approach involves an explicit recognition that laws and policies cannot be understood in isolation, but operate against a background of inequality in which women have been marked as different and thereby disadvantaged. The approach suggests, then, that gender-neutral laws and policies that assume that men and women are in the same position will not result in substantive equality. Nor will special rules based on unexplained and naturalised notions of women’s difference. This is exemplified by the judgments in Garcia which, while appearing to take different approaches to the question of how best to promote equality, implicitly employ common stereotypes — or stock stories — about women’s difference within marriage.

F Difference, Dependence and the Denial of Inequality

1 The Majority Judgment

While persisting gendered disparities of economic and other power are acknowledged by the majority, they explicitly separate this background of inequality from the principle in Yerkey.[91] Hence, they argue that the invalidating tendency arises not as a result of gendered inequality within marriage, but as a result of a relationship of trust and confidence between married couples. However, despite the apparent mutuality of this relationship of trust and confidence between partners, in which, we are told, a less than perfect explanation may be given by one party to the other simply because of the trust and confidence each has in the other, the majority state that it will ‘often’ be the woman who leaves business judgments to her spouse.[92] It is this tendency that provides the rationale for retaining the principle in Yerkey as a special rule for the protection of married women, at least in this case.

This statement that women ‘often’ leave business decisions to their husbands does not appear to require any evidence or explanation. Rather, like the statement of Callinan J above, it suggests that this phenomenon is merely general knowledge or common sense. In her exploration of how judges know what they know, Regina Graycar explores how this kind of judicial common sense is relied upon both explicitly and implicitly in the place of evidence.[93] She suggests that, like stereotypes, ‘common sense’ can be hard to disprove precisely because it often goes unstated, and because it often involves some element of accuracy. Drawing on this analysis, I would suggest that implicit reliance on such a notion of common sense by judges, for example, by neglecting to explain why it is that women often leave business judgments to their husbands, encourages readers of judgments to take analytical shortcuts by employing stock stories or stereotypes about gender. Thus, judges’ failure to specify how they know what they know about gender can lead to the reinforcement of gender stereotypes.[94]

I have already argued that Callinan J’s failure to explain why married women may still be in need of ‘special protection’ encourages us to fall back on stock stories about women’s dependence within marriage. While the majority judgment does not so obviously mark married women as different since it does not utilise the language of ‘special protection’, I would nonetheless suggest that the lack of examination or exploration of why, despite the apparent mutuality of the marriage relationship, women still ‘often’ leave business decisions to their husbands allows, and indeed encourages, the reader to fill the gap with stereotypical assumptions or stock stories about gender roles within marriage. There is no evidence provided to support these assertions; the stock stories based on ‘common knowledge’ about women’s and men’s different roles ‘stand in’ for evidence. In this way, the assertion that women ‘often’ leave business decisions to their spouses is naturalised as part of the relationship of trust and confidence. In other words, marriage is presented as an equal but asymmetrical relationship of mutual trust and confidence in which men and women naturally occupy different roles: the man making business decisions and the woman leaving those decisions to her husband.[95] By naturalising gender roles in this way, the majority forestalls any consideration of power relations or gendered economic inequality within marriage, which may have a significant bearing on the reason for these different roles, and implies that sexually transmitted debt is a natural product of the marriage relationship.

In addition, the lack of discussion in the majority judgment of the history of the exclusion of women from property ownership and legal capacity contributes to the marking of women as different. This occurs in the majority’s attempt to rationalise the existence of the special equity principle through the language of trust and confidence. As we have seen, the majority explicitly separated the special equity principle from persisting economic and other inequalities and suggested that it arose out of the relationship of trust and confidence that exists within marriage. As Kirby J points out, however, the rationale for the principle in Yerkey was not the trust and confidence between married couples, but rather the protection of married women’s property from their husbands.[96] That this is so is clear from the judgment of Dixon J, which traces the history of married women’s capacity to deal with their equitable estate and the ‘watchfulness’ of equity with respect to gifts between wife and husband.[97] While the language of mutual trust and confidence within marriage utilised by the majority may be more in accordance with the contemporary ideology of marriage as an equal partnership, reinterpreting the historical bases of particular doctrines to accord with dominant discourses of ‘equality’ does not promote substantive equality between men and women but merely covers over the history of unequal treatment. In addition, it hides the role of law in constructing that inequality. For example, while judicial interpretations of the Yerkey principle tend to imply that married women are inherently dependent and invoke this as the basis of the special rule, that dependence was specifically generated by the doctrine of unity.[98] In this way, legal doctrines contributed to women’s dependence, and then remedied it in the name of protection.[99] Thus, by ignoring the history of the law’s unequal treatment of married women that led to the development of the special equity principle, the majority judgment conceals the construction of married women’s dependence and naturalises it through its gender-neutral justification of the special equity principle.

2 Kirby J’s Judgment

While Kirby J does not engage in an effacement of the historical construction of married women’s dependence, his approach, which regards the principle in Yerkey as an ‘historical anachronism’, denies its continuing impact. Kirby J recognises that the problem is one that primarily affects women, yet his failure to analyse this as a product of gender inequality leads, once again, to the invocation of an inherent women’s difference despite the stated desire in the first part of his judgment to avoid gender stereotypes. Again Kirby J seems to imply that it is merely a matter of preference or choice for women as to whether they follow their husbands’ advice, when he states that his reformulation of the O’Brien principle can encompass the (unexplained) fact that

in a substantial proportion of marriages it is still the husband (or the principal male partner) who has the business experience and the wife (or the subordinate partner) who is willing to follow his advice without bringing a truly independent mind and will to bear on such financial decisions.[100]

This individualises the phenomenon, while at the same time characterising it as a ‘women’s problem’. In this way, rather than recognising the phenomenon as a product of gender inequality, women again become marked as different and as especially in need of protection. This move is unavoidable for, despite the fact that he has formulated an overarching gender-neutral principle, Kirby J does recognise the gendered nature of the problem. This recognition, combined with his unwillingness to discuss existing gender inequality in this case, inevitably leads to the invocation of women’s difference as the explanation for the gendered nature of the phenomenon. Thus, despite his preference for a gender-neutral principle, Kirby J’s simultaneous recognition of the gendered dimensions of the problem, and his unwillingness to consider it a product of women’s inequality, results in his attributing it to women’s ‘choice’ in the same way that the majority attributed it to women’s difference.

It is interesting to note that while Kirby J does not offer any evidence or explanation of the assertion that a substantial number of women are willing to follow their husband’s advice,[101] this statement is an almost exact repetition of that of Lord Browne-Wilkinson in O’Brien.[102] Lord Browne-Wilkinson, in turn, is paraphrasing the judgment of Scott LJ in the Court of Appeal in Barclays Bank plc v O’Brien.[103] None of these judgments provided any evidence of, or explanation for, the phenomenon which becomes, through judicial repetition, more than a mere opinion and begins to hold the status of ‘fact’, notwithstanding that no evidence has been given to support its existence.

G Conclusion

This analysis suggests that the invocation of women as different, whether as a basis for special rules (the majority judgment) or as part of the argument that these differences do not matter for the purposes of formal equality (the approach of Kirby J), simply plays into the existing oppositional discourse which translates difference into either incapacity or choice. While the judgments all acknowledge, either implicitly or explicitly, that the phenomenon of sexually transmitted debt is a gendered one, their explanations, although different on their face, end up locating the problem in some notion of women’s ‘difference’ rather than inequality. The missing factor in all three judgments is an analysis of the structural gendered inequality and, in particular, the economic factors, which contribute to the problem. Such an analysis is vital if we are to reach an understanding of why it is that sexually transmitted debt is a gendered phenomenon without ‘blaming the victim’ or entrenching notions of women as inherently and uniformly ‘different’.

V THE DIFFERENCE INEQUALITY MAKES

The key to the naturalisation of women’s difference in the judgments is the lack of attention given to the structural reasons why sexually transmitted debt predominantly affects married women. Despite the insistence of Kirby J that women have attained full legal capacity in the public sphere, many feminist analyses have explored the way in which women’s ability to exercise that capacity is limited and constrained by persisting inequality in the private sphere.[104]

Further, while the majority’s representation of marriage portrays it as a primarily equal relationship, feminists have explored the way in which the mantle of equality within marriage conceals profound structural inequalities. In particular, the economic differential between men and women, which is largely a product of the sexual division of labour and its impact on women’s paid work patterns, results in economic insecurity for many women which is often only publicly revealed upon marriage breakdown.[105]

A Economic Inequality

Despite the abolition of married women’s legal incapacity, the sexual division of labour continues to act as a fundamental impediment to married women’s economic and social independence.[106] The terms of the traditional marriage contract contemplated that wives would be supported financially by their husbands, and would in return provide domestic services, sexual services and emotional support.[107] While presented as a contractual bargain between equals, the traditional failure of judges to perceive the economic worth of domestic labour,[108] which is still seen as inspired by natural love and affection,[109] has repeatedly functioned to devalue women’s domestic contributions and render women economically dependent on their husbands’ paid work.

The fact that women remain primarily responsible for domestic work,[110] with marriage increasing women’s workloads by almost 60%,[111] has a significant impact on women’s ability to achieve financial independence through paid work. Children particularly increase the double burden of paid and unpaid work for married women. As Rimmer and Rimmer have documented, the structure of most workplace hierarchies means that career breaks for pregnancy and child rearing have a significant effect on women’s earnings and long-term economic security.[112] Married women’s employment patterns reflect their dual responsibilities as worker and carer.[113] In 65% of families with children under the age of 10, women either are not in paid employment or work part-time.[114] The lack of pay equity[115] reinforces the sexual division of labour as a sound economic choice for heterosexual couples, and the result is that it is 10 times more likely that a father will be in paid employment with the mother caring for the children than the reverse.[116]

Belinda Fehlberg’s qualitative study of sureties and debtors in England indicates that women whose husbands are involved in businesses may face increased economic insecurity.[117] The risk of failure of small businesses is ever present, and most sureties in Fehlberg’s study stated that they would be happier to receive a lower but more reliable income, particularly when they had children.[118] The sureties in her study were generally more cautious than their husbands and often considered the debtors to be less financially responsible than themselves.[119] Even where businesses were profitable, the profits were often redirected into the business. Given the Australian Law Reform Commission’s finding that recently arrived migrants were generally more reliant on family businesses than other members of the community — as starting a business is often the only way they can get an income — migrants may be particularly affected by the economic insecurity of small business ownership.[120] They are frequently considered to be high risk borrowers by creditors because of their low income or lack of a credit record; as a result, their spouses are also more likely to be called upon to provide security.[121] Consequently, recently arrived migrant and refugee women may be more vulnerable to sexually transmitted debt than other women.

The impact of the economic inequality of men and women within marriage is often not recognised at a societal level until the relationship breaks down and the family law regime takes over to regulate explicitly the division of property and arrangements for children. The unequal position of men and women has been explicitly recognised in this context, and the Family Court has expressed a willingness to take judicial notice of the consequences of this economic inequality on women post-separation[122] — a move which recognises the structural and widespread nature of the problem. Given this background, it is hardly surprising that the spectre of marriage breakdown, with its associated economic disadvantage for women, has been identified as a significant source of pressure for women to comply with their husband’s demands for security.[123]

B Control, Power and Violence

Despite the wealth of available data and the acknowledgment of economic inequality upon divorce, the fact that married women have less access to financial resources than men is often not acknowledged or recognised as an issue of inequality while the marriage is still on foot.[124] This is largely due to the ideology of marriage as an equal partnership which justifies the sexual division of labour in terms of ‘different’ roles rather then ‘unequal’ roles. The ‘ideology of jointness’,[125] or the widespread assumption that married couples share their resources equally, is an important part of this ideology of equality within marriage. However, it has consistently been shown that, while couples may appear to have joint control over resources, equal sharing of decision-making and control does not in fact occur in the majority of households.[126] As Fehlberg states, ‘[i]nvariably ... women receive the lesser share.’[127]

Fehlberg’s study similarly suggests that the notion of the ‘family business’, which draws on this ideology of jointness within domestic relations, conceals the disparity in power and control with respect to small businesses. Fehlberg found that whatever the involvement of women in domestic decision-making, ‘the business was overwhelmingly regarded as the province of the debtor’ by both the debtor and the surety.[128] It was generally the debtor’s decision to go into business, and their partners did not consider themselves in a position to get in the way of what was often conceptualised as their ‘partner’s dream’.[129] While female sureties[130] were expected to provide support and unpaid or low-paid work, this did not translate into power or control in financial decision-making.[131] The situation of many of these women was therefore one of ‘informed powerlessness’.[132] While sureties may have had ideas or suggestions about the business, they reported that the debtor was often unwilling to discuss the business with them and so they were unwilling to get involved. Other sureties were discouraged from asking about the business by being told they were stupid and ignorant. Sureties reported pressure to sign that ranged from low-level and subtle emotional pressure to extreme physical abuse.[133]

While violence against women within marriage is frequently ignored or minimised within the ideology of marriage as equality, women’s experience and fear of violence has been recognised by the ALRC as a significant aspect of gender inequality which has a wide-ranging effect.[134] In the context of sexually transmitted debt, women’s bargaining power is directly affected by violence or the threat of violence by male partners.[135] While the exact numbers of marriages involving domestic violence are not known, the increasing recognition of the pervasiveness of violence within marriage suggests that the ideology of equality within marriage severely underestimates the extent to which violence or potential violence affects married women’s so-called ‘free will’ with respect to financial transactions and legal obligations.[136]

C Assumptions of Support

In addition to a lack of actual control or power over financial decision-making, Fehlberg notes that there was a widespread perception, particularly by married couples, that spouses were obliged to provide economic support as part of the relationship. Thus as Fehlberg notes, ‘[i]n the context of the partnership of marriage, the assumption of support in itself represented a form of pressure which it was particularly difficult to resist.’[137] Dodds Streeton has suggested that this form of pressure is particularly relevant to women for, while the formal grant of married women’s property to their husbands has long been abolished, assumptions that women’s property is still available to their husbands and their husbands’ creditors persist.[138] This is in turn reflected in assumptions by creditors about the unity of spouses’ interests,[139] which is regarded as obviating the need for separate advice for women guaranteeing their husbands’ debts.[140] The result is, as Kirby J has noted in previous cases, that women are still treated as ‘mere appendages’ of their husbands.[141]

Fehlberg’s study confirms that the notion of a free choice about whether to enter security transactions is severely restricted for all sureties involved in emotional relationships with debtors.[142] It also suggests, and is consistent with the above analysis, that the economic inequality experienced by many married women, combined with the ideology of jointness reflected in notions of equal sharing and assumptions of support, results in a particularly constrained choice for many married women. Fehlberg’s study challenges judicial assumptions of married women’s autonomy in a similar way to the work of Martha Mahoney with respect to domestic violence.[143] In both situations, questions such as ‘Why didn’t she just say no?’ or ‘Why didn’t she leave?’ assume a degree of autonomy that is unrealistic, given the unequal economic position of married women, the experience or threat of violence and the ideology of love and affection.[144] The study also highlights the gap between sureties’ level of information and their involvement in the business, and their power to influence financial decision-making. This is a very different observation to the portrayal of marriage by the majority, whose notion of trust and confidence within marriage suggests an equality of power that is affected merely because of a lack of information.[145]

D ‘Emotional Dependence’

It is significant that while most feminist commentators recognise that economic inequality is a factor in the particular vulnerability of women to sexually transmitted debt, it is generally not highlighted as a primary or main factor. Rather, there is a tendency to focus on creditors’ and debtors’ assumptions about women’s altruism and emotional dependence which, it is suggested, makes women more likely to agree to act as guarantors for their husbands and others with whom they have a close personal relationship.[146] While it cannot be denied that this is indeed a factor, I would suggest that this encourages courts to focus on the problem as a product of women’s difference, regardless of how carefully individual commentators might stress the constructed nature of that difference.[147] Given traditional ideologies about gender roles within marriage, and the association of women with emotion and caring,[148] an emphasis on the emotional dimensions of the problem without sufficient emphasis on economic and other power relations may reinforce stereotypes and notions of women’s difference from the self-interested norm. This has practical consequences, as the identification of women’s difference as the basis for law’s intervention has the result of requiring litigants to accord to stereotypes of ‘woman’ in order to succeed, as illustrated by Callinan J’s judgment. It is vital that feminist advocates, in the name of pragmatism, do not concur in the strengthening of stereotypes which may assist individual clients, but result in limited and paternalistic responses to the structural inequality of many women.

Reading the transcript in Garcia, it would seem that, while the High Court was presented with feminist analyses of the problem to support Mrs Garcia’s argument that the special rule in Yerkey was still required,[149] the issue of economic inequality tended to be subsumed by discussions about women’s emotional dependence.[150] I am certainly not suggesting that these feminist analyses are in any way ‘to blame’ for the failure of the High Court to acknowledge structural gender inequality. It is important, however, for feminists and others seeking to change the status quo to be aware of the ways in which judicial interpretation shapes the way particular arguments are received. As suggested in the previous section, arguments that highlight notions of women’s difference, even if critically, fit into the traditional formal equality framework more easily than do arguments about women’s inequality. While this may make it easier for judges to understand, it is arguable that it may result in interpretations of the problem that do not sufficiently acknowledge the extent to which it is a product of gender inequality.

E False Universality

At the same time, however, in emphasising the structural nature of gendered inequality, it is vital that feminists do not lose sight of individual contexts and experiences in the name of a universalising account of women’s oppression. The subordination approach has been critiqued on this basis from three overlapping perspectives which all focus on the problem of ‘false universality’.[151] The first relates to feminism’s traditional exclusion of the perspectives and experiences of non-white women, even while it purports to speak to all women.[152] The second highlights the foundationalist claims of the feminist project, and suggests that the location of an essential women’s experience rigidifies gender and gender difference, implying that they are constant and reinforcing the very stereotypes feminists seek to challenge.[153] The third challenges the portrayal of women as victims as the basis for a notion of women’s shared experience of oppression.[154] With respect to the first, it is certainly the case that, while women from a non-English speaking background (‘NESB’) have appeared in many reported guarantee cases, there has been very little attention given to NESB women and their particular experiences of sexually transmitted debt.[155] Those references that do appear in judgments and mainstream literature on sexually transmitted debt tend to invoke stereotypes of migrant women as passive and unliberated,[156] and of their marriages as unequal in comparison with the (supposed) model of marriage as an equal partnership within Anglo-based societies.[157] This contributes to the normalisation of white women’s experience and the designation of non-white women as ‘other’.[158] To the extent that feminists collude in this process of ‘othering’, and make false claims to universality by pretending that accounts of ‘white women and the law’ are accounts of ‘women and the law’,[159] we break the promise of feminist method, which is to listen to women’s stories.[160] A focus on economic inequality, this time of the couple, may suggest, however, that the disproportionate representation of NESB women in sexually transmitted debt cases is not due to any greater inequality within marriage but rather to the limited access of migrants and refugees to financial resources and the corresponding reliance on small businesses and credit.[161]

The second critique stems from post-structuralist challenges to the epistemological bases of group-based action, and suggests that, by focusing on essentialist notions of women, gender and sexual difference, feminists may inadvertently strengthen and reify these concepts.[162] This critique is a valuable reminder that feminists are always implicated in the production of gendered meanings. While we are accustomed to thinking about how law produces understandings of gender, perhaps we have not been sufficiently aware of the way in which feminist arguments similarly construct and rely on images of Woman in making claims about how law should be.[163] However, I am also not convinced that we can escape this process if we are to continue to engage with the law and the categories it produces. As Carol Bacchi argues, feminist debates are always generated, to a certain extent, by the power arrangements we wish to challenge.[164] While we need constantly to challenge the assumptions of a primary sexual difference and to highlight the extent to which the notion of Woman is a discursive construction, I cannot see that we will gain anything by refusing to engage with those categories altogether. As Elizabeth Grosz points out, to define Woman may indeed be to essentialise her, but to refuse to define her means she will continue to be a negative presence; that which is not Man.[165] Like Mary Joe Frug, I am ‘unable to imagine how we can advance the position of women in law without thinking of what the position of women is.’[166] And, like her, I think the only solution is for us to try to think what the positions of women are.

Finally, there has been a wide-ranging critique of the subordination approach on the basis that it portrays women as always already victims. As Kathryn Abrams outlines, this critique is led by two main sources: the first by those popular feminists who have challenged what they perceive as ‘victim feminism’.[167] This approach is epitomised in the United States by writers such as Katie Roiphe and Camille Paglia.[168] Australia experienced its own outbreak of this attitude during the mid-1990s, which was largely generated by Helen Garner’s account in The First Stone[169] of the charges brought against the Master of Ormond College at the University of Melbourne. The second strain of the critique, which Abrams describes as a more subtle and sophisticated critique, has emerged from feminist academics who have rejected the antagonism of the popular critique but who are nonetheless concerned with the extent to which the subordination approach can minimise women’s agency through its emphasis on the pervasiveness of gender inequality. This latter approach, which is described by Abrams as a ‘respectful supplementation of dominance theory’,[170] draws attention to the danger of feminism’s complicity in the oppositional framework that pits women’s agency against women’s victimisation.[171] This is clearly a central issue in the area of sexually transmitted debt. The discussion of Callinan J’s judgment in Garcia above illustrates the dichotomous model whereby ‘intelligent’ middle class women like Mrs Garcia were compared with a passive stereotype of ‘married women’.[172] Within the limited nature of this dichotomy, signs of business experience or attempts by women to inform themselves about the business may serve to disqualify them from the special protection afforded the ‘gaping rustic’, as their assertion that they did not understand the full extent of the contract becomes less credible.[173] As a result, it is a tempting strategy to minimise women’s knowledge and experience of business in the interests of fitting the stereotype of the ignorant wife.[174] It is important to note, however, that Mrs Garcia consistently maintained that she was aware that she was signing a guarantee and that she understood the consequences, but that she was misled by her husband about the risk of default. She was also unaware that the all-moneys mortgage she had signed some 10 years earlier remained as security for all debts owing to the bank.[175] Her success in appearing credible to the court while resisting the dichotomous stereotypes of ‘gaping rustic’ or autonomous self-interested actor suggests that alternative and more nuanced representations of individual women’s subjectivities can be incorporated within the Yerkey principle, even in the context of a discussion which, as I have suggested, highlighted women’s uniform and naturalised difference.

In addition, there is the potential for feminists working with a subordination model that emphasises the pervasiveness of gender inequality to render women uniformly and irreversibly oppressed. While this critique has been largely directed at MacKinnon’s portrayal of sexuality, it could equally be made with respect to economic analyses which render women passive victims of oppressive structures. While I have argued that an understanding of the inequality between men and women is crucial if law is not perpetually to mark women as different, this does not mean that individual women do not live and act within those structures, and resist them. Highlighting women’s agency under oppression, in all its forms, is vital if feminists working with a subordination approach are not to construct a disabling and universalising meta-narrative of women’s oppression. The key, however, is for women’s partial agency to be recognised by the law in a way that does not result in the denial of legal redress for women.

F ‘Who’s Doing What to Whom’

In the particular context of sexually transmitted debt, one way to highlight women’s agency may be to focus on the question of ‘who is doing what to whom’.[176] There is a tendency within these judgments, involving as they do a contract between a creditor and a guarantor, to minimise or understate the role of the debtor in procuring the guarantee. This may, ironically, be aided by the fact that the second limb of the principle in Yerkey does not require a legal wrong to be committed between the debtor and the guarantor in order for the principle to operate. While this should not bar a full description of the circumstances of the transaction, it is possible that the focus on misunderstanding by the female guarantor required by the second limb of Yerkey can operate to cover over the often active role of the husband in procuring the guarantee through misrepresentation or pressure. I would suggest that this is the implication of the majority’s line of reasoning in Garcia, which jumps from the description of marriage as a relationship where one party may repose trust and confidence in the other to the conclusion that this may result in a lack of understanding of the transaction. While there may indeed be some cases where, despite the best efforts of the debtor, the guarantor misunderstands some vital part of the transaction, the notion that a relationship of trust and confidence should justify the more common situation involving misrepresentation, omission of details or pressure to sign (sometimes in the form of extreme violence) is problematic. While I am certainly not arguing that a legal wrong be a requirement of the Yerkey principle,[177] I would suggest that an exclusive focus on the wife’s failure to understand may hide the reasons for that misunderstanding, and in the process, the ways in which she may have attempted to inform herself about the transaction.[178]

For example, in Garcia it is clear from the trial judgment that Mr Garcia had long treated his wife as an ‘appendage’ with respect to his businesses. Mrs Garcia was a passive director of various businesses controlled by her husband and, according to her evidence, she did not know that she was a director until she was asked to sign something for the company. After appearing before a Registrar in 1984 in relation to one of the companies which had gone into liquidation, Mrs Garcia stated that she had endeavoured to follow the registrar’s advice that she should read everything she signed. Young J accepted, however, that she was ‘often foiled by the ploy which [Mr Garcia] had used successfully in asking her to sign documents urgently just as she was rushing out to work to meet an appointment with a patient.’[179] The evidence in the trial judgment indicates that Mr Garcia forged his wife’s signature on a number of occasions. Young J stated that when Mrs Garcia did try to discuss matters with her husband, he would say something like:

I understand how the markets work and you only understand physiotherapy. Your family are just shopkeepers and have never been out of Australia. They have no idea about world markets. If I listened to you I would never make any money. You have just no idea so you have to let me make my decisions.[180]

With respect to the guarantees, the trial judge found that, while Mrs Garcia had known that she was signing a guarantee, and had understood the implications, she was consistently told by her husband that it was merely an overdraft and was unaware that it was secured by the mortgage over their home. In fact, she claimed that she specifically told her husband she did not want to sign anything to do with the mortgage on the house. It is interesting to note that, while the property was in their joint names, the property had originally been purchased by Mrs Garcia with help from her father and, as Young J put it, was transferred ‘in order to have a breadwinner on the certificate of title for borrowing purposes.’[181] This throwaway line reminds us of the gap between the perception and the reality of women’s independence as property owners.

While there was no evidence of physical violence in Garcia, the trial judge accepted Mrs Garcia’s evidence that she was pressured to sign the 1987 guarantee. Mr and Mrs Garcia’s relationship had been deteriorating for some years. When Mrs Garcia returned home from a holiday in 1987, Mr Garcia was ‘in a rage’ and was barely talking to her, but towards the end of the year he began to be nicer to her. He then asked Mrs Garcia to sign a guarantee increasing the overdraft of the business. According to her evidence, when she indicated that she did not want to be involved, her husband said to her: ‘You are so conservative just like the rest of your boring family. One of these days I just won’t be around and you can be boring all by yourself.’ He then told her that she should trust him, and that there was no danger because if the money wasn’t there, the gold would be.[182]

Mrs Garcia’s evidence indicates that the relationship between herself and her husband cannot be simply described as one of trust and confidence in which Mrs Garcia took a passive role. Rather, it involved deliberate deception and misrepresentation by Mr Garcia, and consistent attempts to resist being involved by Mrs Garcia. While there is a danger that a simplistic focus on the actions of the debtor could itself take on the form of a universalising discourse that reinforces notions of women’s passivity with respect to their male partners, a contextualised subordination approach which highlights both the actions of the debtor and the partial agency of the guarantor may assist in challenging the dichotomous representation of married women as either passive and requiring protection, or autonomous and self-interested actors in the particular context of guarantee cases.

VI CONCLUSION

This article has examined the discourse of equality underlying the High Court judgments in Garcia, and in relation to sexually transmitted debt more generally. My analysis has suggested that a recognition of the impact of historical and ongoing gender inequality, and particularly an understanding of the economic inequality experienced by many married women, is vital to an understanding of why sexually transmitted debt overwhelmingly affects women and, in particular, married women. While the judgments implicitly recognise that sexually transmitted debt is a gendered phenomenon, they invoke notions of women’s difference to explain why this is the case. This prevents a more subtle understanding of the pressures and constraints surrounding many women’s ‘choice’ to enter into security transactions that are not to their benefit. It also leads to circular and unproductive debates about whether gender-specific or gender-neutral rules are the appropriate response to the problem of ‘women’s difference’.

What has emerged most clearly from my analysis, however, has been the extent to which all the approaches in Garcia work in similar ways to mark women as different, even while they purport to hold different answers to this question.[183] In this way the judgments produce and reinforce stock stories about women and their role within marriage, even while the majority uses gender-neutral language in its rationale of the principle and Kirby J rejects the use of gender-specific categories as discriminatory. My analysis of these judgments suggests, then, that feminists seeking to uncover the hidden gender of legal principles must be alert not only to what is said, but also to the gaps and assumptions within judgments which also construct and define the meaning of gender, and of gender difference.

Finally, the issue of sexually transmitted debt highlights the limitations of legal responses to complex social problems. Given the underlying assumption that guarantees by spouses, partners or family members are a social good, any legal response to the problem of sexually transmitted debt is necessarily limited.[184] Despite this, it has been my argument that any response should explicitly acknowledge the underlying gender inequality which, I argue, is responsible for the specifically gendered nature of the problem. While we should not expect too much of the law in the way of solutions,[185] we should be able to expect that it will acknowledge its own limitations. Thus, while legal principles may not be able to redress the effects of structural inequality in certain situations, nor should they ignore or cover over its existence. My analysis of Garcia suggests that both gender-neutral and gender-specific principles can have this effect to the extent that they rely on, and reinforce, notions of women’s essential difference.


[*] The title of this article was inspired by the voice-activated software I used while working on this paper. Despite my best efforts, Yerkey v Jones was continually interpreted as ‘yakking giants’. I use the term in good humour rather than out of any lack of respect for the Justices of the High Court.

[†] BA, LLB (Hons) (Melb); Articled Clerk, Holding Redlich Lawyers, Melbourne. This article is based on a research project submitted as part of my BA, LLB (Hons) at the University of Melbourne. I would like particularly to thank Associate Professor Jenny Morgan, who was unfortunate enough to be my supervisor, and whose patience, support and characteristic generosity with time and suggestions were truly invaluable. Thanks also to Dr Michael Bryan, who gave valuable feedback on some of the more technical aspects of the original paper, and to Lisa Sarmas for her helpful comments. Professor Eleanor Swift, the Associate Dean of the Law School at the University of California, Berkeley, where I was a Visiting Scholar while writing this article, was very helpful in arranging research assistance which was performed by Stuart Casillas. Paul McEuen and Susan Wiser generously allowed me to talk to their computer, which tried its best to understand me — but with limited success, as the title of the article indicates. Finally, I would like to thank Tanya Wolkenberg for her company and her consideration during the final stages of the paper, and Eric Hsu for his encouragement and multifaceted support throughout.

[1] I am drawing on the definition provided by the Australian Law Reform Commission (‘ALRC’) in its report, Equality before the Law: Women’s Equality (Part II), Report No 69 (1994) [13.4] (‘Women’s Equality’). While some commentators use broader definitions such as ‘emotionally transmitted debt’ to include, eg, family members, this article focuses on the most common situation involving partners or spouses as this type of relationship involves particular pressures and constraints.

[2] Ibid [13.11]. The ALRC lists 18 reported cases involving female guarantors, most of whom were married to the debtor. There was none in which the husband had guaranteed the debts of his wife. See also Belinda Fehlberg, Sexually Transmitted Debt (1997) 3, who points out that there have not, as yet, been any English cases involving a male surety spouse. I am unaware of any cases involving lesbians guaranteeing their partners’ debts.

[3] See Fehlberg, Sexually Transmitted Debt, above n 2, 4–6 for an outline of the various forms of security.

[4] See, eg, Joint Family Homes Act 1964 (NZ) s 16, which allows married couples to register their home as a ‘joint family home’, protecting it from claims up to a specified sum. See also the report of the Alberta Law Reform Institute, The Matrimonial Home, Report No 14 (1995)

139–44, which discusses ss 1(j) and (k) of the Exemptions Act, RSA 1980, c 129. These provisions exempt homesteads occupied by debtors from seizure by creditors. See further the discussion by Fehlberg, Sexually Transmitted Debt, above n 2, 274–5.

[5] See the House of Representatives Standing Committee on Finance and Public Administration,

A Pocket Full of Change: Banking and Deregulation (1991) (‘Martin Committee Report’) Recommendations 89–93; Australian Bankers’ Association, Code of Banking Practice (1993) (developed in response to the Martin Committee Report) [17.3]–[17.7]; the uniform Consumer Credit Code. There is some doubt, however, whether the Code of Banking Practice applies to guarantors at all: see ALRC, Women’s Equality, above n 1, [13.40]. Even if it does, it is not legally enforceable. The Consumer Credit Code s 6 is limited to credit contracts for personal, domestic or household purposes, which excludes most guarantees given for business debts. I would suggest that there is an important social benefit to be obtained by requiring banks to provide information to guarantors regardless of the relationship between guarantor and debtor. While the provision of information to guarantors will not solve the underlying problems of gender inequality and pressure to sign, it is one step towards redressing the particular power imbalance between institutional creditors and the guarantors they are effectively using as insurance: see below n 8 and accompanying text.

[6] Fehlberg sets out some of the reasons for the recent proliferation of sexually transmitted debt cases. These include the global recession after the economic boom of the 1980s, in which credit was widely available and where third party security was used to secure these loans, and the fact that the high rate of joint ownership of homes by married couples does not necessarily translate to joint control over the way the property is used: Fehlberg, Sexually Transmitted Debt, above n 2, 8–9.

[7] Kirby P recognised this in Gough v Commonwealth Bank of Australia [1994] ASC 56-270, 58,843.

[8] See, eg, Martin Committee Report, above n 5, [20.164].

[9] Fehlberg, Sexually Transmitted Debt, above n 2; Belinda Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature’ (1994) 57 Modern Law Review 467; Belinda Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature: The Sequel’ (1996) 59 Modern Law Review 675; Belinda Fehlberg, ‘Surety Wives and Australian Law: Akins v National Australia Bank(1996) 11 Banking & Finance Law Review 423; Janine Pascoe, ‘Wives, Business Debts and Guarantees’ [1997] BondLawRw 4; (1997) 9 Bond Law Review 58; Paula Baron, ‘The Free Exercise of Her Will: Women and Emotionally Transmitted Debt’ (1995) 13 Law in Context 23; Julie Dodds Streeton, ‘Feminist Perspectives on the Law of Insolvency’ in Julie Dodds Streeton and Rosemary Langford, Aspects of Real Property and Insolvency Law (1994) 1; Nicola Howell, ‘“Sexually Transmitted Debt”: A Feminist Analysis of Laws Regulating Guarantors and Co-Borrowers’ (1995) 4 Australian Feminist Law Journal 93; Miranda Kaye, ‘Equity’s Treatment of Sexually Transmitted Debt’ [1997] Feminist Legal Studies 35; Anthony Duggan, ‘Till Debt Us Do Part: A Note on National Australia Bank Ltd v Garcia[1997] SydLawRw 12; (1997) 19 Sydney Law Review 220; ALRC, Women’s Equality, above n 1; Berna Collier, ‘Confusion Now Hath Made This Masterpiece!: The Present Uncertainty Surrounding the Rule in Yerkey v Jones(1997) 25 Australian Business Law Review 190; Simon Gardner, ‘Wives’ Guarantees of Their Husbands’ Debts’ (1999) 115 Law Quarterly Review 1; Mark Sneddon, ‘Unfair Conduct in Taking Guarantees and the Role of Independent Advice’ [1990] UNSWLawJl 12; (1990) 13 University of New South Wales Law Journal 302; George Williams, ‘Equitable Principles for the Protection of Vulnerable Guarantors: Is the Principle in Yerkey v Jones Still Needed?’ (1994) 8 Journal of Contract Law 67.

[10] [1998] HCA 48; (1998) 194 CLR 395 (‘Garcia’).

[11] [1939] HCA 3; (1939) 63 CLR 649, 670 (‘Yerkey’).

[12] Gaudron, McHugh, Gummow and Hayne JJ.

[13] [1993] UKHL 6; [1994] 1 AC 180 (‘O’Brien’).

[14] See Fehlberg, Sexually Transmitted Debt, above n 2, 55.

[15] Regina Graycar, ‘The Gender of Judgments: An Introduction’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 262, 268.

[16] Carol Smart, Feminism and the Power of Law (1989) 165.

[17] For examples of feminist theory specifically focused on law as a ‘gendering strategy’, see Carol Smart, Law, Crime and Sexuality: Essays in Feminism (1995); Mary Joe Frug, Postmodern Legal Feminism (1992); Graycar, ‘The Gender of Judgments’, above n 15.

[18] Yerkey [1939] HCA 3; (1939) 63 CLR 649, 663.

[19] The other most well-known principle is the trust, which enabled married women to hold beneficial interests in property: Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1990) 115.

[20] See, eg, Married Women’s Property Act 1870 (UK) 33 Vict, c 93.

[21] Under the doctrine of unity, married women’s legal capacity was subsumed into that of their husbands such that married women had no ability to own or deal in property or enter into contracts, amongst other things: Lee Holcombe, Wives and Property (1983) 18.

[22] Ibid.

[23] Dodds Streeton, above n 9, 68.

[24] Yerkey [1939] HCA 3; (1939) 63 CLR 649, 670 (Dixon J).

[25] Ibid 674.

[26] As opposed to those other established relationships in which undue influence is presumed, such as parent–child, solicitor–client and fiancé–fiancée: see Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134 (Dixon J) for a full list.

[27] Yerkey [1939] HCA 3; (1939) 63 CLR 649, 675.

[28] I acknowledge the existence of the ongoing debate regarding the extent to which Dixon J’s judgment was supported by the judgments of the other members of the Court, Latham CJ, Rich and McTiernan JJ. This debate surfaced again in Garcia, but I do not intend to enter into it in this article. On the debate, see Kirby J in Garcia, who argues, following the Court of Appeal, that the principle was never binding on lower courts as it was the judgment of Dixon J alone: [1998] HCA 48; (1998) 194 CLR 395, 420. See also O’Brien [1993] UKHL 6; [1994] 1 AC 180, 185 (Lord Browne-Wilkinson); Akins v National Australia Bank (1994) 34 NSWLR 155, 156 (Clarke JA) (‘Akins’).

[29] Yerkey [1939] HCA 3; (1939) 63 CLR 649, 684 (Dixon J).

[30] Ibid 683.

[31] The most common forms of relief for guarantors, apart from the Yerkey principle, are the doctrine of unconscionable dealing outlined in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (‘Amadio’) and the doctrine of undue influence which is particularly common in the United Kingdom: see O’Brien [1993] UKHL 6; [1994] 1 AC 180. While both undue influence and unconscionable dealing can be established either between the creditor and the guarantor or between the debtor and the guarantor, with the creditor then being infected with the equity if it has notice of the wrongdoing, the more common scenario is either a finding of unconscionability as between the creditor and the guarantor (eg, Amadio), or a finding of undue influence as between the debtor and guarantor with notice binding the creditor with the equity (eg O’Brien [1993] UKHL 6; [1994] 1 AC 180; Farmers’ Co-Operative Executors & Trustees Ltd v Perks [1989] SASC 1932; (1989) 52 SASR 399 (‘Perks’)). In addition a guarantee can be set aside if there is misrepresentation on the part of the creditor, and there are statutory remedies under the Contracts Review Act 1980 (NSW) s 7, the Trade Practices Act 1974 (Cth) ss 51AA and 51AB and under the Consumer Credit Code.

[32] There are two basic propositions with respect to the requirements of disclosure by creditors to intending sureties under the common law:

  1. that the contract of suretyship is not one of the utmost good faith requiring exhaustive disclosure; but
  2. that there is an obligation to disclose matters which are unusual or might not have been reasonably anticipated by the surety.

See G A Weaver and C R Craigie, The Law Relating to Banker and Customer in Australia (1990). See also the discussion in Amadio [1983] HCA 14; (1983) 151 CLR 447, 463 (Mason J).

[33] See Akins (1994) 34 NSWLR 155, 173 (Clarke JA); European Asian of Australia Ltd v Kurland (1985) 8 NSWLR 192, 200 (Rogers J) (‘Kurland’); Warburton v Whiteley (1989) 5 BPR 11,628, 11,630–2 (‘Warburton’) (Kirby P); Australian & New Zealand Banking Group Ltd v McGee [1994] ASC 56-278, 58,929 (‘McGee’) (Cox J); Teachers Health Investments Pty Ltd v Wynne [1996] ASC 56-356 (‘Wynne’) (following Garcia in not applying Yerkey); Geelong Building Society (in liq) v Thomas [1996] V ConvR 54-545, 66,479. Gummow J noted in the course of oral argument in the High Court that it was only in the last 10 years that state courts began to criticise the principle which was formerly ‘set in stone’: Transcript of Proceedings, Garcia v National Australia Bank Ltd (High Court of Australia, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, commencing 4 March 1997) 73.

[34] See Williams, above n 9; Kurland (1985) 8 NSWLR 192, 200 (Rogers J): ‘That being a female spouse should place a person shoulder to shoulder with the sick, the ignorant and the impaired is not to be tolerated’.

See also Warburton (1989) 5 BPR 11,628, 11,631–2 (Kirby P):

The mere knowledge by the creditors that one guarantor is the wife of the other should not, without more, be sufficient in Australian society today to establish that the wife was under a special disability as to her own interests in relation to the transaction. To hold otherwise would be to hold wives in a permanently subordinate and inferior position for no reason other than that they are wives.

[35] [1983] HCA 14; (1983) 151 CLR 447.

[36] See Williams, above n 9; Akins (1994) 34 NSWLR 155, 173 (Clarke JA, Sheller JA concurring: at 175).

[37] [1993] UKHL 6; [1994] 1 AC 180.

[38] (1994) 34 NSWLR 155.

[39] Powell JA concurred as to the result but argued that the Yerkey principle was not a special rule but rather part of a broad principle that courts of equity shall provide a remedy to unconscionable conduct: ibid 175 — an argument that was taken up by the majority in Garcia in below nn 5455 and accompanying text.

[40] They so held on the basis that Amadio provided sufficient relief to married women. Further, Clarke JA held that even if Yerkey were good law, the case would fall outside its scope: a ‘security executed for the benefit, wholly or partly of the wife, would not fall within the Yerkey principle’: Akins (1994) 34 NSWLR 155, 173–4. Contrast this extremely narrow interpretation of the requirement that the guarantor be a volunteer with that of the High Court in Garcia. Even though Mrs Garcia was nominally a director and shareholder of her husband’s business, the majority accepted that she received no direct benefit and was thus, for the purposes of the Yerkey principle, a volunteer: see Garcia [1998] HCA 48; (1998) 194 CLR 395, 412. This is consistent with Young J’s finding that the business was under the ‘complete control’ of Mr Garcia: Garcia v National Australia Bank Ltd (Unreported, Supreme Court of NSW, Young J, 7 April 1993) 24 (‘Garcia v NAB’).

[41] Transcript of Proceedings, Akins v National Australia Bank Ltd (High Court of Australia, Deane, Toohey and McHugh JJ, commencing 12 May 1995).

[42] See, eg, Teachers Health Investments Pty Ltd v Wynne [1995] ANZ ConvR 74 (Hunter J applying Yerkey); and the appeal: Wynne [1996] ASC 56-356 (Beazley JA for the majority, following the intervening decision of the NSW Court of Appeal in Garcia and rejecting Yerkey); Geelong Building Society (in liq) v Thomas [1996] V ConvR 54-545 (applying Yerkey, albeit reluctantly); McGee [1994] ASC 56-278; Australian & New Zealand Banking Group Ltd v Dunosa Pty Ltd [1995] ANZ ConvR 86.

[43] Garcia v NAB (Unreported, Supreme Court of NSW, Young J, 7 April 1993). According to Young J, Mrs Garcia signed the guarantee because ‘her husband consistently pointed out what a fool she was in commercial matters whereas he was an expert, and [because she was] trying to save her marriage’: at 35.

[44] Mr Garcia consistently said to her that there was no danger, for ‘if the money isn’t there the gold is’: ibid.

[45] While this conflicted with the account of the standard practice of the bank given by the bank officer who had witnessed Mrs Garcia’s signature, Young J preferred Mrs Garcia’s evidence, stating that ‘evidence that seeks to leap from what a person’s normal practice is to what he did in a particular case is often unreliable’: ibid 24.

[46] National Australia Bank Ltd v Garcia (1996) 39 NSWLR 577. The Court held that the principle in Yerkey should no longer be applied in NSW for a number of reasons. First, Sheller JA considered that the principle in Yerkey was not a binding High Court precedent as it was the judgment of only one judge, Dixon J: at 598 (Meagher JA concurring). Secondly, the principle was rejected on the basis that it makes assumptions about the position of married women, treating them as inherently in a position of disadvantage rather than considering each case on its facts: at 598. Finally, Sheller JA accepted the argument of the bank that Amadio had superseded the principle in Yerkey, and that there was no need to resort to the special equity principle. Applying Amadio to the facts in Garcia, the Court held that, as NAB had had no notice that Mrs Garcia was under a special disadvantage, there was no unconscionable dealing. Similarly, the lack of notice was fatal to Mrs Garcia’s argument that the bank was infected with the equity arising from the undue influence of Mr Garcia. Her claim under the principle of constructive notice outlined in O’Brien was also unsuccessful as the transaction was not on its face disadvantageous to her, given her position as director of the company. Given Young J’s finding that the company was under the ‘complete control’ of Mr Garcia, however, it would seem logical that Mrs Garcia’s signing of a guarantee for a large sum secured by a mortgage over her home to secure debts of a company over which she had no control would amount to a disadvantageous transaction.

[47] Garcia [1998] HCA 48; (1998) 194 CLR 395, 442.

[48] Ibid 443.

[49] Ibid 404 (Gaudron, McHugh, Gummow and Hayne JJ).

[50] While stating that it was not necessary to determine in this case whether the principle could be applied in situations where a husband acted as surety for his wife, or in the context of long-term relationships ‘short of marriage’, both heterosexual and same-sex, the reasoning in the judgment leaves little doubt that such extensions are likely.

[51] Garcia [1998] HCA 48; (1998) 194 CLR 395, 409 (Gaudron, McHugh, Gummow and Hayne JJ), citing with approval Legione v Hately [1983] HCA 11; (1983) 152 CLR 406, 444 (Mason and Deane JJ).

[52] Garcia [1998] HCA 48; (1998) 194 CLR 395, 409.

[53] Ibid 430 (Kirby J).

[54] O’Brien [1993] UKHL 6; [1994] 1 AC 180. The test formulated by Kirby J in Garcia [1998] HCA 48; (1998) 194 CLR 395, 432 is almost identical to that outlined in O’Brien, except that the O’Brien test applies to relationships involving emotional dependence generally rather than being confined to those relationships involving cohabitation. A significant difference, however, is that Kirby J’s principle suggests that creditors will be bound by actual or constructive knowledge of the relationship of emotional dependence (at 432), as opposed to the approach in O’Brien which appears to require actual knowledge of cohabitation: see O’Brien [1993] UKHL 6; [1994] 1 AC 180, 198. See also the interpretation by Fehlberg to this effect: ‘The Husband, the Bank, the Wife and Her Signature: The Sequel’, above n 9, 680.

Kirby J preferred to follow the O’Brien approach rather than apply the general doctrine of unconscionable dealing established in Amadio. He acknowledged that it had been demonstrated in many cases that ‘the Amadio principle is incapable of protecting volunteers who, because of the vulnerability of their personal relations with a borrower, and the lack of advice and information, bind themselves to a potentially prejudicial transaction’: Garcia [1998] HCA 48; (1998) 194 CLR 395, 430. See also Warburton (1989) 5 BPR 11,628; Williams v State Bank of NSW (Unreported, Supreme Court of NSW, Young J, 7 April 1993); Peters v Commonwealth Bank of Australia [1992] ASC 56-135; McGee [1994] ASC 56-278; Matthew v Independent Holdings Ltd (1993) 173 LSJS 342. Indeed, Kirby J acknowledged that Mrs Garcia was unable to succeed under the Amadio doctrine because the bank had no notice that she was under a special disadvantage: Garcia [1998] HCA 48; (1998) 194 CLR 395, 429–30.

[55] [1998] HCA 48; (1998) 194 CLR 395, 425.

[56] Geoff Airo-Farulla, ‘Dirty Deeds Done Cheap: Deconstruction, Derrida, Discrimination and Difference/ance in (the High) Court’ in Ian Duncanson (ed), Legal Education and Legal Knowledge (1991) 102, 109 (discussing the High Court case of Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70).

[57] Joan Scott, Gender and the Politics of History (1988) 172.

[58] See, eg, his recent judgment in Osland v The Queen, where he states: ‘[a]s evidence of the neutrality of the law it should avoid, as far as possible, categories expressed in sex specific or otherwise discriminatory terms. Such categories tend to reinforce stereotypes’: [1998] HCA 75; (1998) 159 ALR 170, 211–12. There is a notable overlap between Kirby J’s judgments in Garcia and in Osland, to the extent that he makes the same distinction between ‘gender loyalty or sympathy’ and ‘ethical and legal principle’: Osland v The Queen [1998] HCA 75; (1998) 159 ALR 170, 212; cf Garcia [1998] HCA 48; (1998) 194 CLR 395, 412. See also his judgment in Warburton, where he discusses feminist debates about ‘equal’ or special treatment and concludes that while there may be limitations to a strict equality approach, ‘there are more dangers in special treatment’: (1989) 5 BPR 11,628, 11,630. In Brown v Brown he states that the equitable presumptions with respect to resulting trusts should be gender-neutral to ‘reflect the egalitarian nature of modern Australian society, including as between the sexes’: (1993) 31 NSWLR 582, 600. For a critical analysis of this approach, see Lisa Sarmas, ‘A Step in the Wrong Direction: The Emergence of Gender “Neutrality” in the Equitable Presumption of Advancement’ [1994] MelbULawRw 11; (1994) 19 Melbourne University Law Review 758.

[59] See Garcia [1998] HCA 48; (1998) 194 CLR 395, 427, where Kirby J cites with approval Miller v Albright, [1998] USSC 39; 523 US 420 (1998) (Ginsburg J).

[60] Traditionally, anti-discrimination legislation, by requiring exemptions and exceptions for policies which seek to redress substantive inequalities, has promoted the model of strict equal treatment which assumes that men and women are substantially alike. This suggests that differentiation on the basis of sex is discrimination per se, regardless of intention or effect. It is only if such treatment can be ‘saved’ under special measures provisions that the discrimination will be considered lawful: see Wojciech Sadurski, ‘Equality before the Law: A Conceptual Analysis’ (1986) 60 Australian Law Journal 131; Margaret Thornton, The Liberal Promise (1990); Renée Leon, ‘W(h)ither Special Measures? How Affirmative Action for Women Can Survive Sex-Discrimination Legislation’ (1993) 1 Australian Feminist Law Journal 89. See, however, the amendments to the Sex Discrimination Act 1984 (Cth) which sought to redefine ‘discrimination’ in a more substantive manner: Sex Discrimination Amendment Act 1995 (Cth), inserting s 7A.

[61] Dianne Otto, ‘A Barren Future? Equity’s Conscience and Women’s Inequality’ [1992] MelbULawRw 19; (1992) 18 Melbourne University Law Review 808, 809.

[62] See, eg, Patricia Loughlan, ‘The Historical Role of the Equitable Jurisdiction’ in Patrick Parkinson (ed), The Principles of Equity (1996) 3.

[63] For example, the ‘class 2A relationships’ in undue influence generate a presumption of influence that must be disproved by the dominant party: Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 953; approved by Lord Browne-Wilkinson in O’Brien [1993] UKHL 6; [1994] 1 AC 180, 189. These include doctor–patient, solicitor–client, parent–child and, sometimes, fiancé–fiancée, but have not included husband–wife.

[64] Although note the invalidating tendency represented by the principle in Yerkey: see the discussion in above Part II.

[65] Otto, above n 61, 823. See also Kurland (1985) 8 NSWLR 192, 200; Warburton (1989) 5 BPR 11,628, 11,631–2 (Kirby P).

[66] Catharine MacKinnon writes that the claim that women are equal ‘acts as if the purpose of speech is to say what we want reality to be like, as if it already is that way, as if that will help move reality to that place. This may work in fiction, but it won’t work in theory’: Catharine MacKinnon, Feminism Unmodified (1987) 59. Similarly, critical race theorists have challenged the move towards regarding race as an illegitimate classification per se, with Charles Lawrence stating that ‘[c]olor blindness has moved from an ideal to a condition of societal denial’: cited in Martha Minow, Not Only for Myself (1997) 150.

[67] Deborah Rhode, Speaking of Sex: The Denial of Gender Inequality (1997).

[68] See, eg, Graycar and Morgan, above n 19, 402; Frug, Postmodern Legal Feminism, above n 17, 32; Christine Littleton, ‘Does It Still Make Sense to Talk about “Women”’ (1991) 1 UCLA Women’s Law Journal 15, 19; MacKinnon, Feminism Unmodified, above n 66; Jenny Morgan, ‘Equality Rights in the Australian Context: A Feminist Assessment’ in Phillip Alston (ed), Towards an Australian Bill of Rights (1994) 123; Smart, Law, Crime and Sexuality, above n 17; Sarmas, ‘A Step in the Wrong Direction’, above n 58; Susan Moller Okin, ‘Gender, the Public, and the Private’ in Anne Phillips (ed), Feminism and Politics (1995) 116, 120.

[69] Deborah Rhode, ‘The Politics of Paradigms: Gender Difference and Gender Disadvantage’ in Anne Phillips (ed), Feminism and Politics (1980) 344, 347.

[70] Elizabeth Sheehy, Personal Autonomy and the Criminal Law: Emerging Issues for Women, Background Paper, Canadian Advisory Council on the Status of Women (1987) 4, cited in Graycar and Morgan, above n 19, 40.

[71] Thus, both sides of the debate between cultural feminists, who identify Carol Gilligan’s ‘different voice’ as women’s voice, and theorists like MacKinnon who argue that any different voice is the product of domination rather than difference, have been criticised for universalising theories of women’s experience: Rosemary Hunter, ‘Deconstructing the Subjects of Feminism: The Essentialism Debate in Feminist Theory and Practice’ (1996) 6 Australian Feminist Law Journal 135, 137. For examples of cultural feminist work, see Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982); Robin West, ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1; Carrie Menkel-Meadow, ‘Portia in a Different Voice: Speculations on a Women’s Lawyering Process’ (1985) 1 Berkeley Women’s Law Journal 39. For the critique, see MacKinnon, Feminism Unmodified, above n 66, 32, 39; Joan Williams, ‘Deconstructing Gender’ (1989) 87 Michigan Law Review 797. For criticisms of the ‘different voice’ theorists, see Rhode, Speaking of Sex, above n 67, 38. For criticisms of MacKinnon’s universalising tendencies, see Angela Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42 Stanford Law Review 581; Smart, Law, Crime and Sexuality, above n 17, 171; Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (1991) ch 3.

[72] ALRC, Women’s Equality, above n 1, [3.12].

[73] Rhode, ‘The Politics of Paradigms’, above n 69, 347.

[74] See Catharine MacKinnon, quoted in conversation, in Ellen DuBois et al, ‘Feminist Discourse, Moral Values, and the Law — A Conversation’ (1985) 34 Buffalo Law Review 11, 20–1.

[75] ALRC, Women’s Equality, above n 1, [3.12].

[76] Graycar and Morgan, above n 19, 113.

[77] [1998] HCA 48; (1998) 194 CLR 395, 443.

[78] For a discussion of this phenomenon, see Graycar, ‘The Gender of Judgments’, above n 15.

[79] For a discussion of stock stories, which are institutional stories that form a dominant discourse through their repetition, see Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1989) 87 Michigan Law Review 2411. See also Lisa Sarmas, ‘Storytelling and the Law: A Case Study of Louth v Diprose[1994] MelbULawRw 8; (1994) 19 Melbourne University Law Review 701.

[80] Garcia [1998] HCA 48; (1998) 194 CLR 395, 443.

[81] Ibid.

[82] See, eg, Catharine MacKinnon, Toward a Feminist Theory of the State (1989) 216; Scott, above n 57; Frug, Postmodern Legal Feminism, above n 17; Carol Bacchi, ‘Do Women Need Equal Treatment or Different Treatment?’ (1992) 8 Australian Journal of Law and Society 80; Christine Littleton, ‘Reconstructing Sexual Equality’ (1987) 75 California Law Review 1279; Jane Flax, ‘Beyond Equality: Gender, Justice and Difference’ in Gisela Bock and Susan James (eds), Beyond Equality and Difference: Citizenship, Feminist Politics and Female Subjectivity (1992) 193; Marcia Neave, ‘From Difference to Sameness — Law and Women’s Work’ [1992] MelbULawRw 18; (1992) 18 Melbourne University Law Review 768; ALRC, Women’s Equality, above n 1; Graycar and Morgan, above n 19; Otto, above n 61; Sarmas, ‘A Step in the Wrong Direction’, above n 58; Morgan, ‘Equality Rights in the Australian Context’, above n 68.

[83] Scott, above n 57.

[84] See Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (1990), in which she discusses understanding difference as relational rather than fixed.

[85] See MacKinnon, Toward a Feminist Theory of the State, above n 82, 215–34.

[86] Martha Minow, ‘Foreword: Justice Engendered’ (1987) 101 Harvard Law Review 10, 32–3.

[87] MacKinnon, Toward a Feminist Theory of the State, above n 82, 219.

[88] This is a similar argument to that of Judith Butler in Gender Trouble: Feminism and the Subversion of Reality (1990). I agree with Margaret Davies that, rather than being the essential anti-post-structuralist, MacKinnon, especially in her analysis of the formation of sex difference and of gender identity, shares many features of post-structuralist work: Margaret Davies, Asking the Law Question (1994) 214–16.

[89] MacKinnon, Feminism Unmodified, above n 66, 51.

[90] Deborah Rhode, ‘Feminist Critical Theories’ (1990) 42 Stanford Law Review 617, 625.

[91] The majority states that ‘the rationale of Yerkey v Jones is not to be found in notions based on the subservience or inferior economic position of women’: Garcia [1998] HCA 48; (1998) 194 CLR 395, 404 (Gaudron, McHugh, Gummow and Hayne JJ).

[92] Ibid.

[93] The doctrine of judicial notice is a formal mechanism by which facts that are considered to be generally known are ‘noted’ without requiring evidence: Graycar, ‘The Gender of Judgments’, above n 15, 274.

[94] Mary Joe Frug, ‘Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook’ (1985) 34 American University Law Review 1065, 1085–7.

[95] See Margaret Thornton, ‘The Judicial Gendering of Citizenship: A Look at Property Interests During Marriage’ (1997) 24 Journal of Law and Society 487, 498.

[96] Garcia [1998] HCA 48; (1998) 194 CLR 395, 422.

[97] Yerkey [1939] HCA 3; (1939) 63 CLR 649, 674 (citing Jonathon Story, Equity Jurisprudence (1835) § 1395). See the discussion of the history of the special equity principle in above Part I.

[98] For a discussion of the doctrine of unity, see above n 21.

[99] Viewed in this way, we might understand the rule as stemming not so much from any historical inherent dependence and need for protection of married women, but rather as a response to the risk of abuse by married men of the power given to them by the doctrine of unity. See the discussion in below Part V(F) of the utility of focusing on the behaviour of the debtor.

[100] Garcia [1998] HCA 48; (1998) 194 CLR 395, 433.

[101] Ibid.

[102] [1993] UKHL 6; [1994] 1 AC 180, 188.

[103] [1992] EWCA Civ 11; [1993] QB 109.

[104] See, eg, Katherine O’Donovan, Sexual Divisions in Law (1985); Frances Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Review 1497; Frances Olsen, ‘The Myth of State Intervention in the Family’ (1985) 18 University of Michigan Journal of Law Reform 835; Graycar and Morgan, above n 19, 30–40; Ngaire Naffine, Law and the Sexes (1990); Ngaire Naffine, ‘Sexing the Subject (of Law)’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 18. See also Thornton, ‘The Judicial Gendering of Citizenship’, above n 95; Neave, ‘From Difference to Sameness’, above n 82.

[105] See O’Donovan, above n 104; Carol Smart, ‘Marriage, Divorce and Women’s Economic Dependency: A Discussion of the Politics of Private Maintenance’ in Michael Freeman (ed), The State, the Law and the Family (1984) 9, 18–21. See also Michael Bittman and George Matheson, ‘All Else Confusion’ — What Time Use Surveys Show about Changes in Gender Equity (1996).

[106] See Neave, ‘From Difference to Sameness’, above n 82; Regina Graycar, ‘Gendered Assumptions in Family Law Decision-Making’ (1994) 22 Federal Law Review 278, 282–91.

[107] Marcia Neave, ‘Living Together — The Legal Effects of the Sexual Division of Labour in Four Common Law Countries’ [1991] MonashULawRw 2; (1991) 17 Monash University Law Review 14, 14.

[108] Ibid; Regina Graycar, ‘Hoovering as a Hobby: The Common Law’s Approach to Work in the Home’ (1985) 28 Refractory Girl 22; Marilyn Waring, Counting for Nothing: What Men Value and What Women Are Worth (2nd ed, 1999).

[109] For a contemporary rendition of this age-old refrain, see, eg, Sheller JA’s judgment in Bryson v Bryant, where a woman was denied a beneficial interest in her husband’s property: (1992) 29 NSWLR 188, 211. In Balfour v Balfour Atkin LJ states that the consideration for an agreement of a husband to pay an allowance to his wife is ‘that natural love and affection which counts for so little in these cold Courts’: [1919] 2 KB 571, 579.

[110] In a study conducted in the Sydney region of women aged over 15 years, it was found that women continue to do 70% of the housework: Michael Bittman, Juggling Time: How Australian Families Use Their Time (1992) 32. Compare the assumptions of Samuels JA, referring to life in the liberated households of the judges of the NSW Court of Appeal: ‘[A]ll of us have experience of what might be regarded as a more modern way of life, in which household tasks are shared’, quoted in Graycar, ‘The Gender of Judgments’, above n 15, 273; see also the assumptions of equal participation of men and women in housework in Keally v Jones [1979] 1 NSWLR 723, 741 (Hutley JA); Bagias v Smith (1979) FLC 90-658, 78,506 (Hutley JA).

[111] Bittman, above n 110.

[112] Russell Rimmer and Sheila Rimmer, More Brilliant Careers: The Effect of Career Breaks on Women’s Employment (1994). See also J Beggs and B Chapman, The Foregone Earnings from Childrearing in Australia (1988); H Joshi and H Davies, Child Care and Mother’s Lifetime Earnings: Some European Contrasts (1992).

[113] Australian statistics show that, between the ages of 25 and 34, women’s paid workforce participation rates drop significantly, corresponding to the prime child-bearing ages: Australian Bureau of Statistics, Australian Women’s Yearbook (1997) 71.

[114] Ibid 75.

[115] Average weekly ordinary time earnings for women in 1996 were 83.9% of men’s: ibid 149.

[116] Kathleen Funder, Margaret Harrison and Ruth Weston (eds), Settling Down: Pathways of Parents after Divorce (1993) 197.

[117] Fehlberg, Sexually Transmitted Debt, above n 2. The study was a small qualitative survey of sureties, debtors, lenders and lawyers involved with security transactions. The sample was obtained through a bank pressure group founded to agitate for changes in relation to a wide range of banking issues. As Fehlberg notes, ‘[t]he presence of two men in the surety sample of 22 confirmed that there are surety spouses of both sexes but underlines that acting as a surety spouse is ... predominantly a female activity’: at 101.

[118] Ibid 134–5.

[119] Ibid 135.

[120] ALRC, Multiculturalism and the Law, Report No 57 (1992) 227.

[121] Ibid.

[122] Mitchell v Mitchell [1995] FamCA 32; (1995) 19 Fam LR 44, 62. The Family Court was following the approach of the Canadian Supreme Court in Moge v Moge in which L’Heureux-Dubé J, writing for the majority, stated that ‘the general economic impact of divorce on women is a phenomenon, the existence of which cannot reasonably be questioned and should be amenable to judicial notice’: [1992] 3 SCR 813, 873; (1993) 99 DLR (4th) 456, 497.

[123] See Fehlberg, Sexually Transmitted Debt, above n 2, 183: the desire to preserve the relationship was particularly great in those women who had experienced the breakdown of a previous marriage. We can see some of the effects of economic inequality in Garcia. The facts indicate that the Garcias’ financial situation was not particularly secure, with Young J stating that two years after Mr Garcia set up business on his own as a foreign exchange broker, ‘the family did not appear to receive much money from [Mr Garcia’s] business’: Garcia v NAB (Unreported, Supreme Court of NSW, Young J, 7 April 1993) 2. At this time Mrs Garcia set up her own practice after working part-time for some years while her children were young. This broken career pattern is mentioned in passing but is not considered significant. Similarly, it seems that Mrs Garcia continued to have primary responsibility for domestic work and caring for the children, with the only mention of the dynamics of the family life as follows: ‘The parties’ relationship was not good, FBG would come home consistently at about 8 pm, eat his warmed up dinner and drink wine and then watch television whilst the plaintiff went to bed’: at 18. Young J specifically found that Mrs Garcia signed the 1987 guarantee in part because she wanted to save her marriage: at 31.

[124] See Thornton, ‘The Judicial Gendering of Citizenship’, above n 95, 497.

[125] Supriya Singh, Marriage Money: The Social Shaping of Money in Marriage and Banking (1997) 55.

[126] In a recent Australian study Supriya Singh stated that, while it is true that couples increasingly pool their financial resources, ‘husbands continue to control money, but within the idiom of jointness’: ibid 87. Singh distinguishes between market money (which is public, impersonal and individual) and marriage money (which is domestic, personal and pooled) and states that, while women may have responsibility for managing marriage money, this does not translate to control of market money, or decisions involving external investment of financial resources. Her findings are consistent with findings in other studies that, while married women typically have some management and control over domestic expenditure, women’s power decreases as the perceived importance of the decision increases: see Meredith Edwards, The Income Unit in the Australian Tax and Social Security Systems (1984); Jan Pahl, ‘Household Spending, Personal Spending and the Control of Money in Marriage’ (1990) 24 Sociology 119; Carolyn Vogler and Jan Pahl, ‘Social and Economic Change and the Organisation of Money within Marriage’ (1993) 7 Work, Employment and Society 71.

[127] Fehlberg, Sexually Transmitted Debt, above n 2, 84.

[128] Ibid 128.

[129] Ibid 132.

[130] Fehlberg notes specifically that neither of the male sureties was involved in their wives’ business except, of course, to the extent that they provided security. In addition, the woman’s business was not the primary source of income and both of the male sureties were in full-time employment of their own at the time of the security transaction. As Fehlberg notes, the provision of security by these two men was not therefore entangled in the web of economic and social factors that impacted on surety women: ibid 146.

[131] Fehlberg’s study indicates that, like domestic work, working in the business was undervalued and taken for granted as far as female sureties were concerned: ibid 140.

[132] Ibid.

[133] Ibid 181–4.

[134] ALRC, Equality before the Law: Justice for Women (Part I), Report No 69 (1994) [2.31] (‘Justice for Women’). This minimisation of violence occurs in other ways as well. For example, I would suggest that discussing violence under the seemingly innocuous description of ‘emotional pressure’, as Fehlberg does, minimises the impact of violence and naturalises it as part of the marriage relationship: Sexually Transmitted Debt, above n 2, 181–4.

[135] Kaye, above n 9, 41. Some of the reported cases on sexually transmitted debt, however, suggest an inability to understand the effect of violence on women’s ‘choice’ with respect to particular transactions. Eg, in Perks Duggan J required proof of a specific act of undue influence despite accepting evidence of a history of extreme violence towards the guarantor and her children by her husband, who eventually murdered her: Perks [1989] SASC 1932; (1989) 52 SASR 399, 404; see the discussion of the case by Otto, above n 61, 820.

[136] For discussions of women’s experience of violence by male partners and its relationship to women’s inequality, see ALRC, Justice for Women, above n 134, [8.11]. See also National Committee on Violence against Women, National Strategy on Violence against Women (1993); Women’s Coalition against Family Violence, Blood on Whose Hands? The Killing of Women and Children in Domestic Homicides (1994); Regina Graycar, ‘Telling Tales: Legal Stories about Violence against Women’ (1996) 8 Cardozo Studies in Law and Literature 297; Graycar and Morgan, above n 19, ch 11.

[137] Fehlberg, Sexually Transmitted Debt, above n 2, 183.

[138] Dodds Streeton, above n 9, 15.

[139] Baron, above n 9, 37.

[140] Margaret Thornton has argued that the notion of the indivisibility of property interests during marriage continues to detract from the ability of married women to claim active citizenship: ‘The Judicial Gendering of Citizenship’, above n 95.

[141] Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32, 35. This recognition is a welcome appreciation of the gap between the formal rhetoric of equality and the persisting assumptions of dependence which mark women’s relations with institutions and individuals. While Kirby J has consistently highlighted this as an unacceptable approach by creditors (see, eg, Morris v Wardley Australian Property Management Ltd [1994] ASC 56-268; Gough v Commonwealth Bank of Australia [1994] ASC 56-270), I would suggest that his approach in Garcia over-emphasises married women’s full legal capacity and is not so alert to the ways in which the ideology of marital unity may continue, despite its formal abolition, in the guise of jointness or equal sharing.

[142] Fehlberg’s findings were that all sureties considered that they had no choice as to whether to sign the guarantee: Sexually Transmitted Debt, above n 2, 181.

[143] Martha Mahoney, ‘Legal Images of Battered Women: Redefining the Issue of Separation’ (1991) 90 Michigan Law Review 1.

[144] Ibid. They also imply that she did not say no, or that she did not leave. This conceals the fact that in many sexually transmitted debt situations, including Garcia, female sureties say no many times before being pressured or overcome: see the discussion of Garcia in below Part V(F). See also Perks [1989] SASC 1932; (1989) 52 SASR 399 (where Mrs Perks resisted for years her husband’s demands that she ‘sign on the line’ until finally giving in) and CIBC Mortgages v Pitt [1993] UKHL 7; [1994] 1 AC 200 (where Mrs Pitt initially refused to sign but did so after being shouted down) as examples.

[145] See above Part III.

[146] Howell, above n 9; Baron, above n 9; Kaye, above n 9.

[147] Howell, above n 9, 95; Baron, above n 9, 25; Kaye, above n 9, 42–3.

[148] See, eg, Genevieve Lloyd, The Man of Reason: ‘Male’ and ‘Female’ in Western Philosophy (1984).

[149] The Court was presented with the work of Howell, above n 9; Fehlberg, ‘The Husband, the Bank, the Wife and Her Signature’, above n 9; Belinda Fehlberg, ‘Women in “Family” Companies: English and Australian Experiences’ (1997) 15 Company and Securities Law Journal 348; Dodds Streeton, above n 9; Duggan, above n 9.

[150] See, eg, Transcript of Proceedings, Garcia v National Australia Bank Ltd (High Court of Australia, commencing 4 March 1997) 23–4 (David F Jackson QC):

[W]hat is underlying Yerkey v Jones, in our submission, is not just selection of a particular class of person, if I can put it that way, because of the fact that they are married and women, but to recognise that that fact itself carries with it, and brings with it, in most cases, very many cases, an emotional relationship which makes it more likely that the person will do something, adversely to their own interests, because of that emotional relationship.

See also McHugh J at 26: ‘It is the sexual and emotional ties between people in a relationship which provides a ready weapon for undue influence.’

[151] See Smart, Law, Crime and Sexuality, above n 17, 145.

[152] For critiques in the Australian context, see Larissa Behrendt, ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ (1993) 1 Australian Feminist Law Journal 27. See also Archana Parashar, ‘Essentialism or Pluralism: the Future of Legal Feminism’ (1993) 6 Canadian Journal of Women and the Law 328; Harris, above n 71; Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ in Anne Phillips (ed), Feminism and Politics (1995) 314; Marlee Kline, ‘Race, Racism, and Feminist Legal Theory’ (1989) 12 Harvard Women’s Law Journal 115.

[153] See, eg, Drucilla Cornell, ‘The Doubly-Prized World: Myth, Allegory and the Feminine’ (1990) 75 Cornell Law Review 644, 656; Minow, Not Only for Myself, above n 66, 57; Smart, Law, Crime and Sexuality, above n 17, 82.

[154] See Harris, above n 71, 613.

[155] See however ALRC, Multiculturalism and the Law, above n 120, [11.42]–[11.54]; see above n 120 and accompanying text for a discussion of this brief account.

[156] See, eg, the judgment of Dawson J in Amadio [1983] HCA 14; (1981) 151 CLR 447, in which the interests and experience of Mrs Amadio were subsumed by those of her husband. See Otto, above n 61, 815 for a discussion of this aspect of the judgment.

[157] See, eg, the reference in the judgment of Scott LJ in Barclays Bank plc v O’Brien where, in the process of justifying the retention of the special rule, he states that ‘in the culturally and ethnically mixed community in which we live, the degree of emancipation of women is uneven’: [1992] EWCA Civ 11; [1993] QB 109, 139. For a more explicit version of this attitude, see M H Ogilvie, ‘“Special Tenderness for Sexually Contracted Debt”: A Feminist Banking Law in Embryo? Del Grande v Toronto-Dominion Bank(1996) 11 Banking & Finance Law Review 447, 454–5 where, having stated that the English courts ‘now take a contemporary view of marriage as a partnership in which the parties are or are presumed to be equals’, Ogilvie continues:

That the recent flurry of English cases were largely concerned with recently immigrated Asian couples suggests that, apart from exceptional situations based on culture or age, there is no obvious reason for the courts to continue to treat wives in the paternalistic fashion required by feminist ideology ...

[158] See Hunter, above n 71, 140.

[159] I am paraphrasing Christine Boyle, ‘Review of R J Sharpe, Injunctions and Specific Performance and S M Waddams, The Law of Damages, Canada Law Book Ltd, 1983’ (1985) 63 Canadian Bar Review 427, 430–1. See also Parashar, above n 152, 342.

[160] Harris, above n 71, 601.

[161] See the discussion of the ALRC Report, Multiculturalism and the Law, above nn 120–121 and accompanying text.

[162] See Drucilla Cornell, ‘Gender, Sex and Equivalent Rights’ in Judith Butler and Joan Scott (eds), Feminists Theorise the Political (1992) 280.

[163] See Judith Butler, ‘Subjects of Gender/Sex/Desire’ in Anne Phillips (ed), Feminism and Politics (1995) 273; Smart, Law, Crime and Sexuality, above n 17, 175.

[164] Carol Bacchi, The Politics of Affirmative Action: ‘Women’, Equality and Category Politics (1996) 11.

[165] Elizabeth Grosz, ‘Sexual Difference and the Problem of Essentialism’ in Elizabeth Grosz (ed), Space, Time and Perversion: The Politics of Bodies (1995) 45.

[166] Frug, Postmodern Legal Feminism, above n 17, 49.

[167] Kathryn Abrams, ‘Sex Wars Redux: Agency and Coercion in Feminist Legal Theory’ (1995) 95 Columbia Law Review 304.

[168] See Camille Paglia, Sex, Art and American Culture (1992); Katie Roiphe, The Morning After: Sex, Fear and Feminism on Campus (1993). See also Naomi Wolf, Fire with Fire: The New Female Power and How It Will Change the 21st Century (1993).

[169] Helen Garner, The First Stone: Some Questions about Sex and Power (1995).

[170] Abrams, above n 167, 354.

[171] Elizabeth Schneider, ‘Feminism and the False Dichotomy of Victimization and Agency’ (1993) 38 New York Law School Law Review 387; Abrams, above n 167; Harris, above n 71.

[172] The judgments in Gough v Commonwealth Bank of Australia also illustrated this tendency, with Meagher JA’s extraordinary comment that Mrs Gough was ‘no gaping rustic’ forming part of his opinion about why she was not entitled to relief under the Contracts Review Act 1980 (NSW): [1994] ASC 56-270, 58,856.

[173] Fehlberg, Sexually Transmitted Debt, above n 2, 55.

[174] See Abrams, above n 167, 352.

[175] As Young J suggests, while banks regard all-moneys mortgages as standard practice, there is no reason to assume that those members of the community without accounting expertise would know that: Garcia v NAB (Unreported, Supreme Court of NSW, Young J, 7 April 1993) 33.

[176] MacKinnon has suggested that describing ‘who is doing what to whom’ is a ‘relentless tendency of feminism’: Catharine MacKinnon, ‘Feminism in Legal Education’ (Paper presented at the Australian Universities Law Schools Conference, Sydney, 1988) cited in Graycar and Morgan, above n 19, 402. See also Sheehy, who suggests that, by framing criminal offences in gender-neutral terms, an appreciation of who is doing what to whom is lost: above n 70, 4.

[177] See Fehlberg, Sexually Transmitted Debt, above n 2, ch 1, for an analysis of the problems with this requirement in the O’Brien approach.

[178] In making this argument I am very conscious of the implications for critiquing the notion of misunderstanding that is the basis of the Yerkey principle. I am certainly not suggesting that those women who misunderstand the transaction are less entitled to relief than those who are overtly pressured by their husbands. The obligation of a creditor to provide an explanation to all guarantors in this situation should not be vitiated by the existence or otherwise of wrongdoing on the part of the husband. There are many reasons why misunderstanding may occur. Furthermore, any move to remove misunderstanding as the basis of the Yerkey principle will have a significant impact on those women for whom English is a second language, who, as the ALRC suggested, are already more likely than women with an English-speaking background to be required by creditors to act as guarantors: see ALRC, Multiculturalism and the Law, above n 120, [11.42]–[11.54]. Indeed, the technical language of many security documents can act as a severe impediment to understanding for both debtors and creditors for whom English is a second language: see ALRC, Multiculturalism and the Law, above n 120, 229.

[179] Garcia v NAB (Unreported, Supreme Court of NSW, Young J, 7 April 1993) 23.

[180] Ibid 18.

[181] Ibid 2.

[182] Ibid 26.

[183] In the end, despite the debate about the desirability of a gender-neutral or gender-specific rule, the practical effect of these principles is extremely similar, and is limited to the provision of information to those guarantors who are in an emotional relationship with, or are married to, the debtor. In addition, both the Yerkey and O’Brien approaches take a creditor’s perspective to the issue of whether a surety is aware of the risk of the transaction. In other words, as long as the creditor has reasonable grounds to believe that the surety is informed of the risk, either because it gave an explanation itself or because it believes that independent advice was received, the transaction will be valid. Both the judgments of the majority and Kirby J make it clear that the burden on creditors is minimal. Both judgments are phrased in terms of how creditors can best protect themselves against voidable contracts and neither judgment addresses the key issue of what the content of the independent advice should be.

[184] See Fehlberg, Sexually Transmitted Debt, above n 2, 281; Dodds Streeton, above n 9, 88–90.

[185] See Smart, Feminism and the Power of Law, above n 16, 165.


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