A IOURNAI OF NATIONAL AND INTERNATIONAL LAW REFORM r LIBRARY Women in the law Reform seeks to provide a forum to engage a broad cross-section of the community in constructive, high-quality debate on issues of national and international law reform. The journal aims to highlight shortcomings in current laws, facilitate discussion on opportunities for uniformity and reform, and recognise significant innovation in law and legal practice. It also provides a comparative analysis of local and overseas reform initiatives. The views expressed by contributors to Reform are not necessarily those of the publisher, the Australian Law Reform Commission. U N S W 1 h NOV 2003 LIBRARY 18 australian law reform commission C o n t e rits Women in the law Feminist legal theory: An introduction 5 Contributors Professor Margaret Thornton Matthew Carroll Effective law effecting change: The Sex Discrimination Act and women Kate Connors in the legal profession 10 Isabella Cosenza Sally Moyle and Marissa Sandler Margaret Harrison-Smith Women in the legal profession: An overview 14 Peter Hennessy Alexandra Richards QC Francis Joychild Women on the Bench 20 Heather Kay Justice Margaret Beazley William H Laurence Jane L McLeod A personal perspective of a woman barrister 23 Carolyn Sparke Sue Morris Kerryn Newton The Trans-Tasman experience... 26 Christine Grice Michael Palumbo Chris Paul Personal perspectives on Parliament: Upper House 31 William Potgeiter Senator Marise Payne Pearse Rayel Personal perspectives on Parliament: Lower House 34 Jenny Rudolf Julia Gillard MP Gregory K Steele QC Equality before the law (ALRC 67 and 69) 37 Jonathan Dobinson Production credits ALRC work Supervising Commissioner Why regulate the New Genetics? 41 Ian Davis Trudo Lemmens Editor Essentially Yours: A review 47 Michelle Hauschild Dr Thomas Murray Production Manager Becky Bowyer Gene patenting and human health: The ALRC Issues Paper 51 Professor Anne Finlay Front cover image Savage Creative Protecting classified and security sensitive information 56 Carolyn Adams Illustrations Louise Cullen Managing Justice: The Government responds 62 Subscription International law reform details Within Australia - $A35.00 Adverse possession 64 Sandra Petersson Overseas - $A55.00 Prices quoted for two editions, including GST and postage. Regular features Payment should be made in Australian dollars only. Comment - Professor David Weisbrot 1 ISSN 03I3-I53X Commission news 2 Print Post No PP243459I0008I Reviews 67 Reform roundup 76 Clearing house 101 Contacts 110 From the Editor • •• Contributions to Reform are wel­ come and should be sent to: In 1994, the Australian Law Reform Commission released the results of a Michelle Hauschild comprehensive study of women in the law. The inquiry documented a cul­ The Editor ture of gender bias and inequality before the law. Many of the report’s key Reform recommendations were implemented (see the article on p37), but what E-mail: [email protected] Telephone: advances have been made in the past decade? (02) 8238 6333 Postal address: In this issue of Reform, we have asked our contributors to re-consider the GPO Box 3708 SYDNEY NSW 2001 issue of women in the law. Professor Margaret Thornton begins with a primer on feminist legal theory (p5). Sally Moyle and Marissa Sandler, When preparing contributions, from the Human Rights and Equal Opportunity Commission’s Sex Dis­ contributors should note the fol­ lowing points: crimination Unit, consider the impact of the Sex Discrimination Act 1984 1/ Electronic lodgement of articles (Cth) (plO). Articles on various aspects of women in the legal profession (by e-mail or disc) is preferred. are contributed by the Hon Justice Margaret Beazley of the New South Articles should be in RTF, Word or WordPerfect formats. Discs Wales Court of Appeal (p20), Alexandra Richards QC (pl4), barrister Car­ should be IBM-compatible. olyn Sparke (p23), and New Zealand Law Society President Christine 2/ The name, address, phone and Grice (p26). fax numbers of the author must be attached to the article. We have also looked at women who help make the laws, with personal per­ 3/ Articles should be between 1,000 and 3,500 words in length. spectives on Parliament from Senator Marise Payne (p31) and Julia Shorter articles are welcome. Gillard MP (p34). Contributions to ‘Reform Roundup’ should be under 1,000 Turning to the work of the ALRC, since the last edition of Reform, the words. Commission has released three major publications. 4/ Articles submitted to Reform should be in final form as correc­ tions on proofs will be limited to In March 2003, the Australian Government tabled the final report in the literal errors or changes necessi­ Australian Law Reform Commission and Australian Health Ethics Com­ tated by legal developments. mittee inquiry into the protection of human genetic information. The 5/ Articles submitted to Reform for publication must be original and report, Essentially Yours (ALRC 96), received high praise from within Aus­ not currently under considera­ tralia and overseas. Reform asked two experts in the field—Trudo Lem- tion for publication elsewhere, except by prior arrangement. mens (p41) and Dr Thomas Murray (p47)—to review aspects of the report. 6/ The Australian Law Reform In July this year, consultation papers were released for the ALRC’s two Commission (ALRC) reserves the right to republish all material on current inquiries. This issue includes updates on the inquiries into gene its website and to use all patenting and human health (p51) and the protection of classified and accepted articles for promotion of the journal. security sensitive information (p56). 7/ The ALRC reserves the right to edit submitted articles so they Michelle Hauschild conform with Reform’s writing Editor, Reform style. The Editor will seek to contact contributors to verify . changes before publication. E^litoriaj Advisory Committee Style 1/ All articles must be written in Reform wishes to thank the members of the Editorial Advisory clear, accessible language, suit­ able for the lay reader. Committee for their contribution to the journal: 2/ Gender neutral language should The Hon Justice Roslyn Atkinson, Queensland Supreme Court and be used. Queensland Law Reform Commission 3/ Contributors should seek to min­ Ms Anne Henderson, The Sydney Institute imise the use of endnotes, how­ ever, all legislation, international Mr Michael Ryland, Robert Seidler & Associates instruments, organisations and Mr Philip Selth, NSW Bar Association cases referred to should be Mr David Solomon, The Courier Mail, Brisbane clearly identifiable. 4/ Avoid unnecessary punctuation. Professor Louis Waller, Monash University Abbreviations should not be fol­ Ms Maisie Warburton, NSW Office of the Board of Studies lowed by a full stop. Women in the law Comment n my first ‘Comment’ in these pages (Reform Issue INo 75, Spring 1999), I noted that law reform in Australia had become an increasingly crowded field since the ALRC was established in 1975. The ALRC now ‘competes’ for projects with a wide array of parliamentary committees, interdepartmental committees, royal commissions, ad hoc review committees, task forces and working parties. Within the federal Attorney- General’s portfolio there are a large number of specialised agencies charged with (among other things) providing advice on development of the law and legal practice—for example, the Human Rights and Equal Opportunity Com­ mission (HREOC); the Office of the Federal Privacy Commissioner; the Professor David Weisbrot, President, ALRC Administrative Review Council; the Family Law Council; the National Alter­ native Dispute Resolution Advisory Committee (NADRAC); the Copyright Law Review Committee; the International Legal Services Advisory Committee (ILSAC), and others. Most of the business law and economic regulatory areas, such as corporate law and tax law, have moved from the Attorney-General’s Department to Treasury—and so corporate law reform and tax law reform are now largely driven by that section of executive government. Many or most of these bodies have adopted the policy development methods and strategies pioneered in Australia by the ALRC, under its founding Chair, Justice Michael Kirby. This generally involves an iterative process beginning with the publication of issues papers and discussion papers, efforts at public consultation, and, finally, considered recommendations to government about the best way forward. However, two events this year have caused me to think more about the rela­ tive roles of law reform agencies and the courts in the progressive develop­ ment of the law. First, at the kind invitation of Chief Justice Michael Black of the Federal Court of Australia, I addressed the ‘Fifth Worldwide Common Law Judiciary Conference’ in Sydney in April 2003 on the somewhat daunting topic of ‘The Future of the Common Law’. Second, in early October, the High Court of Australia celebrated its 100th anniversary, prompting some reflection in the media about the nature and role of that body in the development of the law, and the maintenance of the rule of law, in Australia. (Although this was largely overwhelmed by the massive coverage accorded the various football finals occurring around the same time—there is never any doubting what is truly important to modern society.) Continued on page 74 ssue 83 2003 ~ Page Reform Women in the law Commission Current references and the Minister for Health and Ageing, Sen­ ator the Hon Kay Patterson, jointly launched Classified and security sensitive information: