LAW REFORM R LIBRARY

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

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The ALRC has welcomed two new part-time Law Reform Agencies meeting in Melbourne Commissioners. Justice Susan Kiefel was in April. Professor Finlay delivered a paper appointed as a part-time member in April. on ‘Law Science and Technology: Challenges Justice Kiefel has been a judge of the Federal to Law Reform in Responding to Scientific Court of Australia, based in Brisbane, since and Technological Development’. 1994 and, prior to that, a judge of the Supreme Court of Queensland. She is also a In addition, the President participated in a Deputy President of the Federal Police Disci meeting of the National Conference of Com plinary Tribunal. Justice Kiefel has agreed missioners of Uniform State Law (NCCUSL) to participate in both the gene patenting and Study Committee on the Misuse of Genetic security sensitive information inquiries. Information in the United States in August. Professor Weisbrot briefed the Committee on Justice Susan Kenny was appointed a part ALRC 96 Essentially Yours: The Protection of time member of the ALRC in May. Justice Human Genetic Information in Australia. Kenny has been a Judge of the Federal Court of Australia since 1998 and prior to that was Other meetings to discuss either current a Judge of the Victorian Court of Appeal. inquiries or the recent inquiry into the pro During her career, Justice Kenny has held tection of human genetic information were positions as a part-time Commissioner of the held with the US Equal Opportunity Com missioner, in Washington; ambassadors from Human Rights and Equal Opportunity Com mission and as the part-time President of the the Pacific Islands and officials of the United Nations in New York; and leading US experts Administrative Review Council. She is also in genetics and genetic research institutions. participating in both ALRC inquiries.

Inter-agency Implementation cooperation update

Marine Insurance — ALRC 91 The ALRC continues to play a role in foster ALRC 91 Review of the Marine Insurance Act ing links between law reform agencies, and 1909 was discussed in the recent High Court promoting access to justice, on both the decision Gibbs v Mercantile Mutual Insur national and international levels. ance (Australia) Ltd [2003] HCA 39 (5 Over the past few months, the ALRC has August 2003). Particular mention was made hosted delegations from the Law Reform of Recommendation 5—that the Marine Committee for the Development of Thailand; Insurance Act should be amended so that, s w e n from agencies relevant to the promotion and subject to the terms of a contract, marine protection of human rights in Vietnam; the insurance covers risks on inland waters and Congress of the Philippines; the Law Review that where appropriate the ‘sea’ and the Project of South Africa; and the Chinese judi ‘seas’ should be read as including inland ciary. waters. Justice Kirby noted that the report is still under consideration by the govern ALRC President, Professor David Weisbrot, ment, and stated that he regarded ‘its analy and Commissioners Ian Davis and Professor sis as accurate and helpful to the resolution Anne Finlay attended the Commonwealth of the issue before this Court’.

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Women in the law

Feminist legal theory:

By Professor Margaret Thornton*

eminist legal theory does not have a Fprecise denotation but embraces many different perspectives and ways of thinking about law and justice. It has grown out of the feminist movement more generally. Inspired by a vision of the way things might be, feminism is pre-emi nently a reformist movement that seeks to make things better for women in all spheres of life. First Wave Feminism was associated with the struggle by women to be admitted to public office, universities and the professions in the late 19th cen tury. Second Wave Feminism, of which feminist legal theory is a sub-set, emerged in the late 20th century and is more diverse and far-reaching, as this brief overview will suggest.

From the outset, Second Wave Feminism was very much concerned with praxis, or the interrelationship between theory and practice. The point is illustrated by the ongoing attempts by feminists to draw attention to the philosophical separation between public and private life, which is central to the western intellectual tradition. One of the early aphorisms of the

ssue 83 2003 ~ Page 5 Reform Women in the law feminist movement was: ‘The personal is the political’, feminist legal scholars seek to challenge the well- suggesting that everything marked ‘private’ should be entrenched liberal myths that the legal person is gen a matter of public concern. The feminist focus on the derless, that one’s life course is a matter of personal private sphere permitted not just a critique of family choice alone, and that law is neutral, objective and life, with its dark underside of violence, but it enabled fair. exploration of the ways in which women’s responsibil ity for housework and caring for others facilitated the Reform participation of men in public life and paid work.

Since the 1970s, Australian feminist legal scholars ...the common law regarded the have campaigned for change and critiqued the gender rape of a woman as a serious crime, bias of the law. Feminist reformers were keen to assist courts and other key institutions in grappling this was because it was treated more with new ways of seeing, in order to make the law as a crime against patriarchal more receptive to women. In light of liberalism’s property than the violation of much-touted claim of equal treatment before the law, the will of a human being. it is probably unsurprising that overt inequalities within the law, particularly the criminal law, were the focus of many of the initial campaigns. The differen Critiques of the gendered construction of social knowl tial impact on men and women of the partial defences edge of all kinds have been central to the feminist the of provocation and self-defence to charges of homicide oretical project. What has been progressively estab was a notable example. Feminist legal scholars lished in respect of the dominant discourses of all aca demonstrated that both of these defences contained an demic disciplines, including law, is that the accounts, inherent bias against women, which arose, in the which have been presented as universal and true, are main, from men’s superior physical strength. In time, in fact partial because they are based almost exclu most criminal law jurisdictions accepted the gender sively on a masculinist point of view. That is, because bias thesis and changes to the law were effected, men have conventionally dominated the public sphere, although the best way of remedying the anomalies con which has been privileged over the private sphere, tinues to be contested. male voices have come to be regarded as more authori tative. Therefore, the threshold question of academic The issue of domestic violence received comparatively feminism has been how can rational claims to univer little attention until feminist scholars drew attention sality be made if the experiences and perspectives of to its pervasiveness and the way that relational half the population are consistently omitted? assaults in the home were treated less seriously than assaults between strangers in the street. Over more The reformist potential of law ensured that law was a than two decades, an array of innovative reforms has major site of feminist activism from the outset. Femi been tested and fine-tuned, including telephone war nist legal scholars may nevertheless evince some rants, apprehended violence orders and counselling of ambivalence about law for, while it has the potential offenders. While it would be overstating the case to for liberation, on the one hand, it has also been a pri claim an overall reduction in the incidence of violence mary mechanism for legitimating and perpetuating against women, which is impossible to measure oppressive regimes against women, on the other. anyway, it is undoubtedly the case that public expo Thus, coverture, for example, which ensured the loss of sure and debate has caused social attitudes to change, all civil rights for a woman on marriage, was a cre including those of the police, magistrates and judges. ation of the common law. Its vestiges still operate to The assault of a woman in the home is now less likely detract from the idea of married women as fully to be dismissed as ‘just another domestic’. autonomous legal persons, despite a raft of legislative reforms enacted since the late 19th century. By expos Rape, or what has come to be characterised as sexual ing anomalies and proffering explanations for them, assault, has also been on the feminist law reform

Reform Issue 83 2003 ~ Page 6 Women in the law agenda for a long time, particularly with regard to the definition of con gymnastics necessary to establish sent, the burden of proof and the nature of cross-examination regarding an appropriate comparison. In one prior sexual history. Like domestic violence, social attitudes in regard to infamous American Supreme Court sexual assault have also changed. While the common law regarded the case, pregnancy was analogised rape of a woman as a serious crime, this was because it was treated more with the male-specific medical con as a crime against patriarchal property than the violation of the will of a ditions of prostatectomy, human being. If a woman says, ‘No’, the law now recognises that she haemophilia, circumcision and means ‘No’, not ‘Yes’. The feminist claim that women ought to be able to gout.2 In the absence of a compa exercise autonomy over their own bodies also manifested itself in cam rable pregnant man, it was rea paigns to decriminalise abortion and prostitution. In the case of prostitu soned, unfair treatment on the tion, feminist activists drew attention to the unequal operation of the law: ground of pregnancy did not consti that is, that it was only the person offering the sexual services, not the tute sex discrimination. Compar (invariably) male client, who was liable to be prosecuted. Moves to isons of this kind induced many legalise prostitution followed in some jurisdictions. feminist scholars to espouse differ ence, that is, to accept that the cat In respect of the civil law, feminist law reformers have addressed count egory ‘woman’ was essentially dif less anomalies across the entire spectrum of law. They range from ferent from the category ‘man’, and anachronisms, such as the gender-specific loss of consortium and the mar that gender difference should be riage discount (based on a judicial assessment of the attractiveness of a celebrated rather than expecting widow) to contemporary issues, such as wrongful birth, sexually transmit women to conform to an artificial ted debt and assisted reproductive technology. Family law has been an male standard. Others persevered ongoing site of social change, as have the perennial issues of custody, prop with trying to improve sex discrim erty and inheritance. These issues have been complicated by contempo ination legislation by arguing for rary forms of family formation, including de facto and homosexual rela the inclusion of affirmative action, tionships, which have caused law reform agencies to look to feminist legal indirect discrimination, maternity scholars for advice as a matter of course. leave and the accommodation of workers with family responsibili In one infamous American Supreme Court case, ties. pregnancy was analogised with the male-specific medical conditions of prostatectomy, haemophilia, Scholarship circumcision and gout...

By the mid-1980s, some feminist

The focus on employment and economic issues reflects the large-scale legal scholars had moved beyond a movement of women into the workforce that coincided with the rise of focus on equality and the idea of Second Wave Feminism. ‘Letting in’, the preoccupation of First Wave reforming discrete aspects of law to Feminism, has been replaced with a concern about the vastly different thinking about how law itself was terms and conditions on which women have been admitted. Sexual gendered. The new approaches harassment at work, for example, is a notable example of a feminist- struck a chord with other legal inspired reform that was first recognised as a civil harm less than 20 scholars, thereby generating years ago.1 debates, seminars, colloquia, and a flurry of publishing activity. Main The first sex discrimination legislation was enacted in Australia in 1975 stream law journals began to pub as a result of feminist lobbying. For women to make out claims of inequal lish articles by feminist legal schol ity and sex discrimination, it nevertheless had to be shown that they were ars, which signalled a qualified in the same or similar circumstances to those of a real or hypothetical degree of acceptance of feminist man, but were treated less favourably because they were women. The lim theory within the legal academy. itations of the formalistic approach became increasingly apparent in the Special issues of law journals were

Issue 83 2003 - Page 7 Reform Women in the law devoted to feminist legal theory, such as that of the the quality and extent of that experience is contingent Australian Journal of Law and Society in 1986. A on the interests and expertise of particular lecturers. specialist law journal, the Australian Feminist Law Because of the prescriptive requirements of admitting Journal, which was devoted to feminist legal theory, authorities, the economically oriented core subjects, first appeared in 1993. including property, contract, torts and commercial law, are privileged over those concerned with the affective The major problem, it was argued, was that feminist side of life, such as family law, human rights, discrimi legal reformers, who were themselves mainly white, nation law and feminist legal theory. middle class, able-bodied and heterosexual, sought to create a new legal subject in their own image. Non- Within the core subjects themselves, the focus tends to English speaking, indigenous, immigrant, lesbian, dis be doctrinal and applied, which means that little abled, and working-class women began to attack the attention may be paid to critical and theoretical per depiction of woman within the feminist movement as spectives. However, as a result of lobbying by feminist possessing a single, identifiable ‘essence’, for they did legal scholars, an attempt to develop gender awareness not see themselves reflected in the image. White femi within all compulsory subjects of the law curriculum nists were taken to task for prioritising gender over was initiated by the Australian Government in 1993. race.3 The attack on what came to be known as ‘essen- This initiative followed a period of intense media focus tialism’ sent shock waves through the feminist move on the issue of gender bias in the judiciary. The most ment. But a conundrum presented itself: how could notorious instance involved a remark by Justice Bollen there be a viable women’s movement without a unitary of the South Australian Supreme Court in the course category ‘woman’? In particular, how could law reform of a marital rape trial, to the effect that ‘rougher than and legal discourse accommodate a multiple category usual handling’ was acceptable on the part of a hus ‘women’, when law believes in clear lines and neat cat band towards a wife who was less than willing to egories? engage in sexual intercourse.4 Two teams of feminist legal scholars prepared materials on the themes of citi The attack on essentialism signalled the increasing zenship, work and violence.5 Copies of the materials acceptance of post-modern critiques of one-dimensional were sent to all law schools and were made available causal accounts. Post-modern feminism cannot be on the Internet, but it was left to individual academics defined in terms of a single theory, for it includes a to determine what use they would make of them. range of perspectives that reject universality, objectiv ity and the idea of a ‘single truth’, although it could be Apart from the core curriculum, feminist legal acade argued that feminism itself might be understood as mics have taught a cluster of dedicated electives, such post-modern because of its multifaceted assault on uni- as ‘women and law’, ‘anti-discrimination law’ and ‘fem versalism and orthodoxy. While not denying that inist legal theory’. The primary topics within the femi many women are subject to violence and exploitation nist legal theory ‘canon’ have tended to involve vio in their lives, post-modernism rejects subordination lence, the family, reproduction and economic rights, and victimhood as fixed characteristics of women’s closely parallelling the history of the reformist identity. A fluid approach is favoured which seeks to agenda.6 More recently, an interdisciplinary or cross- take account of difference and privilege, as well as disciplinary focus that challenges the autonomy of law resistance and individual agency. As a result of being has replaced the teaching of feminist legal theory in influenced by Aboriginal, non-English speaking back some law schools. ‘Law and literature’ or ‘law and cul ground, disability and lesbian feminist legal theorists, ture’, for example, have encouraged the deconstruction the ‘woman’ of legal discourse became more diverse. of legal texts themselves, as well as a focus on creative writing, film and television. The inclusion of fiction Legal education alised accounts within a law course disrupts the idea that the juridical voice is the only authentic and autho Most prospective lawyers, men as well as women, are rised voice in law. Popular culture, which may be as likely to have had some exposure to feminist legal close as many people get to law, allows justice to be theory during their law school experience, although imagined in ways not otherwise attainable.7

Reform ssue 83 2003 ~ Page 8 Women in the law

Despite this vibrancy in feminist legal scholarship, it Conclusion has been suggested that it has not exercised the impact on the curriculum that might have been I have sought to convey something of the transforma expected.8 This is difficult to gauge. It is not known tive potential of feminist legal theory over the past 25 how many law teachers utilised the prepared ‘gender years. I have suggested that it is a dynamic and bias in the law’ curriculum materials, for example. My diverse movement of reformers and scholars that is not own research suggests that there has been a move reducible to a single point of view. Feminist legal away from legal theory of all kinds in favour of purely theory has played a major role in campaigning for and applied knowledge, a change that has coincided with effecting changes to the law in order to make it more the decline in government funding of universities and equitable for women. Despite the trail-blazing nature the dramatic increase in student numbers that began of these reforms and the wealth of published scholar to occur in the 1990s. Elective subjects have clearly ship in recent years, feminist legal theory does not been deleteriously affected by declining staff numbers. seem to have made a significant impression on either the law school core curriculum or mainstream legal practice. The resistance would seem to underscore the Legal practice fear associated with social change, even when that change is rational and just. Feminist legal scholars have also turned their atten tion to legal practice to evaluate the impact of the dra * Professor Margaret Thornton is a Professor of matic change in the gender profile of the profession.9 Law and Legal Studies at La Trobe University, While approximately 50 per cent of law students, 40 Melbourne. per cent of legal academics and 30 per cent of practis ing lawyers in Australia are women (a picture that is Endnotes reflected in other parts of the western world), this ‘let ting in’ is not necessarily synonymous with an accep 1. O’Callaghan v Loder (1984) EOC 92-024 (NSW EOT). tance of either the reformist or the critical dimensions 2. Geduldig v Aiello 417 US 484 (1974). of feminist legal theory. 3. For example, J Huggins, ‘A Contemporary View of Aborigi nal Women’s Relationship to the White Women’s Movement’, Feminist legal theory may well have contributed to the in N Grieve and A Burns (eds), Australian Women: Contempo rary Feminist Thought (1994) Oxford, Melbourne. acceptance of women in legal practice in increasing 4. R v Johns, SA Supreme Court (unreported) 26 August numbers over the past two decades, but there has also 1992. been an unstoppable demand for the delivery of legal 5. The citizenship materials were prepared by Professor services at both the national and the international Sandra Berns, Ms Paula Baron and Professor Marcia Neave, levels. Accordingly, law firms have been happy to and the work and violence materials by Professor Regina accommodate women lawyers where they are expected Graycar and Associate Professor Jenny Morgan. The writer chaired the overseeing committee. to serve the needs of corporate clients, certainly not a 6. See, for example, R Graycar and J Morgan, The Hidden feminist agenda for reform. Although the corporate Gender of Law (2nd ed), (1996) Federation Press. law firm in Australia is now likely to have sexual 7. For example, M Thornton (ed), Romancing the Tomes: Pop harassment and maternity leave policies in place, such ular Culture, Law and Feminism (2002) Cavendish, London. policies invariably fall short of the rhetoric. It would 8. R Johnstone and S Vignaendra, Learning Outcomes and seem that legal practice is being revolutionised by the Curriculum Development in Law: A Report commissioned by power of corporate clients and economic rationality, the Australian Universities Teaching Committee (AUTC) (2003) Commonwealth of Australia, Canberra. key characteristics of the new political economy. Jus 9. M Thornton, Dissonance and Distrust: Women in the Legal tice and equity, the values underpinning Second Wave Profession (1996) Oxford, Melbourne. Feminism, would seem to be playing a secondary role to property and profits.

ssue 83 2003 ~ Page 9 Reform Women in the law

Effective effecting

m m

The Sex Discrimination Act and women in the legal profession

By Sally Moyle and Marissa Sandler*

ince Ada Evans became the first Australian Swoman to graduate from law more than 100 years ago, women have increasingly pursued careers in the legal profession. The profession is often considered to be particularly cautious and conservative, but this perception is belied by the speed and degree to which women have established themselves in this formerly highly male-dominated profession.

Yet the question remains—have women changed the profession to accom modate their presence, or have women themselves been required to adapt to the strictures and culture of the profession? Examining the role of the Sex Discrimination Act 1984 (Cth) in facilitating women’s progress in the legal profession may shed some light on this issue. It seems appropriate to do so on the eve of the 20th anniversary of the Act.

Structural change arguably requires three elements: legislation, precedent and a critical mass of change agents. We have had the legislative frame work for two decades, and are building up a body of precedent. We are also now seeing the legal profession focussing more closely on this issue as more and more women are willing to press for their rights. We will see an acceleration of the pressure on the legal profession in coming years to address issues of sex discrimination, sexual harassment and the disadvan tage women suffer as a result of their family responsibilities.

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Women in the law: Current to four years. The figure dropped experiences from 108 to 57 women during these periods.9 Women are at the Bar younger10 and in more junior roles The legal profession is committed to upholding concepts of justice and than men.11 Barriers to women’s equality. It provides services aimed at ensuring everyone can equally progress, including discrimination access the law. It is expected that the legal profession itself operates on in these middle career years, as these principles and, as a result, the success of the profession in eliminat opposed to at entry level, suggests ing sex-based discrimination and sexual harassment can be considered the that the discrimination within the litmus test for the effectiveness of anti-discrimination legislation. legal profession is structural and entrenched. The challenge to the Unfortunately, gender inequality, sex-based discrimination and sexual Sex Discrimination Act is to be able harassment continue within the legal profession. For example, although to redress sex-based discrimination the gender pay-equity gap in the legal profession is less than that experi in this form. enced by other professional women, it still exists.1 Pay inequity is one of the starkest indicators we have of sex inequality as well as being one of the major disadvantages that women suffer as a result of inequality. The legislation

True, the pay-equity gap may be partly explained by men holding the The objects of the Sex Discrimina more senior ranking and, therefore, better remunerated positions in the tion Act include: legal profession. Certainly, women are largely absent from the senior ranks of the legal profession, despite accounting for approximately 29 per • to eliminate, so far as is possi cent of the practising legal profession in Australia2 and 57 per cent of the ble, discrimination against per undergraduate law population.3 In NSW, for example, women account for sons on the ground of sex, mari only 7.2 per cent of partners in law firms.4 At the Bar, women make up tal status, pregnancy or poten only between 12 to 16 per cent of full-time barristers, although the tial pregnancy in the areas of number varies across the States.5 This gender imbalance at a senior level work; is reflected in the judiciary. There is now no female representation on the High Court bench and in 2001 women held only nine per cent of places in • to eliminate, so far as is possi the Federal Court and an average of six per cent of places in State ble, discrimination involving Supreme Courts.6 dismissal of employees on the ground of family responsibili However, the ‘pipeline’ argument, that pay inequity will disappear as ties; women move through to the senior ranks of the profession, only holds for a limited time. As we have passed the centenary of women’s first gradua • to eliminate, so far as is possi tion in law and it is 25 years since women have been graduating from law ble, discrimination involving school in significant numbers,7 that threshold should have long passed sexual harassment in the work and the argument can no longer be sustained. place; and

In any event, it is clear that pay inequity is embedded in the profession • to promote recognition and from the outset—when the incomes of solicitors with less than one year’s acceptance within the commu experience are compared, men still earn on average $8,200 more than nity of the principle of the their female counterparts.8 There must be other reasons to explain both equality of men and women.12 the gender pay-equity gap and women’s significant under-representation in the senior ranks of the law. Under the Sex Discrimination Act it is unlawful to discriminate on The lack of women in senior ranks can partially be explained by women the grounds of sex, marital status, leaving the profession in large numbers in their middle career years. pregnancy or potential pregnancy. NSW Bar statistics show that the number of women in practice between Sexual harassment and dismissal five and nine years is almost half the number of women in practice for up from employment on the basis of

ssue 83 2003 ~ Page Reform Women in the law family responsibilities is also unlawful, as is victimisa was an indirect sex discrimination case brought under tion associated with any of these grounds. This prohi the Act by a female solicitor at a Sydney law firm.16 bition of discrimination applies to a number of areas The solicitor, Ms Hickie, was a contract partner with including employment, partnerships, education, the Hunt and Hunt Solicitors. At the time of her appoint delivery of goods, services and facilities, clubs and the ment as a contract partner Ms Hickie was pregnant, a administration of Commonwealth laws and programs. fact known to the firm. She took maternity leave and returned to work part-time to find her practice had The Sex Discrimination Act relies upon an individual been severely reduced. A 'Partner Performance complaints mechanism. It is a successful and well- Appraisal’ was carried out and her contract was not tried model for dealing with individual incidents of dis renewed. Ms Hickie claimed to have been the victim of crimination. It also has the ability to effect structural discrimination and victimisation in the failure to make change over time. However, one of the limitations of proper provision to support her practice during her an individual complaints process is that it relies on the maternity leave and her later period of part-time work. courage and commitment of individual complainants to She claimed the decision not to renew her contract was pursue an application through the sometimes arduous unlawful discrimination and she was less favourably complaint and litigation process. This is often difficult treated on grounds of sex, marital status, pregnancy, for individual complainants, particularly where, as potential pregnancy and family responsibilities. with the legal profession, word of mouth and reputa tion are significant drivers in generating work and The Human Rights and Equal Opportunity Commis facilitating career advancement. In this culture, many sion, which at that stage still had a complaint-hearing female legal practitioners may put up with sex dis function, found that the requirement to work full-time crimination to preserve their jobs and reputation.13 would inevitably disadvantage women practitioners who, like all women, have the major responsibility for In this culture, the normative effect of the Sex Dis caring for children. The Commission found that the crimination Act is important as the very existence of requirement to work full-time imposed on the solicitor the law is intended to affect behaviour. For barristers, in order to maintain her position was not reasonable in this normative function is particularly useful as there the circumstances and amounted to indirect sex dis is little jurisprudence about how the Sex Discrimina crimination. tion Act can be used specifically by barristers to address the discriminatory barriers and harassment Although supporting legal precedent has followed, that they may face. It would be useful to see in the part-time work remains uncommon for female partners future creative uses of the Sex Discrimination Act by in law firms. In NSW, for example, only 14.7 per cent members of the Bar. The protection offered by the Sex of female solicitors work part-time.17 Comparing this Discrimination Act to female solicitors and partners in to the general part-time work rate for women of 45 per law firms is much clearer as they are covered by areas cent,18 women in the legal profession are three times of the Act relating to employment14 and partner less likely to work part-time then women in the gen ships.15 eral workforce.

This poor take up of part-time work arrangements by Developing a body of women in the legal profession can partially be legal precedent explained by the long hours culture of the profession.19 In the legal profession long hours are not only the norm but rewarded. The dominant view remains that An individual complaints mechanism facilitates wide ‘part time work is the mummy track which is a differ spread reform through the development of a body of ent path to that leading to partnership’.20 Working legal precedent. part-time can have a deleterious effect on a woman’s An early, and one of the most well known cases, con career advancement, even in those law firms that have cerning the discrimination women experience as they adopted part-time work as the most popular flexible attempt to balance work and family responsibilities work arrangement.

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Critical mass These forces will ensure the continued progress towards equality. The Sex Discrimination Act will con

Women in the future can rely upon this precedent tinue to play a pivotal role in this movement. It is when overcoming barriers and, as legal precedent increasingly creating legal precedent and being used emboldens more women to press for change, a critical by a growing mass of women within the legal profes mass is reached. In this environment, change can be sion to agitate for cultural change. demanded without fear of backlash. There is evidence * Sally Moyle is the Director of the Sex Dis that this is beginning to occur. In one law firm, female crimination Unit, Human Rights and Equal practitioners acknowledged their rights to employment Opportunity Commission. Marissa Sandler is a free from sex discrimination by holding a ‘women only’ Research Assistant, Sex Discrimination Unit, meeting within their firm planning day. The outcomes Human Rights and Equal Opportunity Com of their meeting were presented to the law firm and mission. Both are lawyers. issues such as combining work and family responsibili ties, workplace culture and flexible work practices were raised. Endnotes

1. Female solicitors earn on average 82 per cent of male solic Other change agents itors’ earnings: The Law Society of New South Wales, After Ada: A New Precedent for Women in the Law, 29 October 2002, 6. This compares with all female professionals who This intersection of legislation, legal precedent and earn on average 80 per cent of their male counterparts: ABS critical mass in an area where change is really needed 6310.0 Employee Earnings, Benefits and Trade Union Mem will generate reform. However, broader social and cul bership Australia August 2002, 13. tural changes can also impede or accelerate change 2. Australian Bureau of Statistics 8667.0 Legal Services towards equality. Industry 1998-1999 Canberra 2000, 15 as discussed in The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 7. Labour market trends are the most powerful change 3. Centre for Legal Education The Australasian Legal Educa agent and currently present a strong business case for tion Yearbook Law Foundation of New South Wales Sydney bringing about gender equality in the legal profession. 1999, 16 as discussed in The Law Society of New South Wales Although entering in large numbers, women are After Ada: A New Precedent for Women in the Law 29 October increasingly leaving the legal profession or at least 2002, 7. leaving the Australian legal profession. As global 4. The Law Society of New South Wales After Ada: A New labour markets shrink, young skilled Australian work Precedent for Women in the Law 29 October 2002, 35. 5. In Victoria the figure is 16 per cent; Queensland 13 per ers are joining the lucrative, mobile and growing global cent; South Australia 12.5 per cent; New South Wales 12 per economy. They go where there are good wages and cent and in Western Australia eight per cent: C Wall, social stability. Last year approximately 40,000 Aus ‘Women: Barristers v Barriers’, (2000) 22(9) SA Law Society tralians left Australian shores permanently to seek a Bulletin, 23. future elsewhere. In this increasingly competitive 6. Figures from address given by The Hon Justice Michael global market, where human resources are the most Kirby to the Victorian Women Lawyers Association Women in the Law—What next? Lesbia Harford Oration Melbourne 20 sought after commodity, Australia cannot afford to be August 2001. one of only two OECD countries that fails to provide a 7. Sharon Roach Anleu Women in the Legal Profession: national scheme of paid maternity leave. Theory and research paper presented at the Australian Insti tute of Criminology Women and the Law Conference 24—26 Other women are leaving the legal profession to September 1991. By 1983, women made up 40 per cent of all pursue more flexible work arrangements as they tire of university students enrolled in law and legal studies: Depart ment of Training and Youth Affairs Higher Education Stu juggling the demands of a legal career and family dents Time Series Tables 2000: Selected Higher Education responsibilities in an ‘un-family-friendly’ profession. Statistics Commonwealth of Australia 2001, Table 7. They may start their own business, move to the gov 8. The Law Society of New South Wales After Ada: A New ernment sector and corporate areas or, if plausible, Precedent for Women in the Law 29 October 2002, 6. leave the paid workforce entirely. 9. This cannot be explained by higher intake in the first cate- Continued on page 75

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Women in the LEGAL PROFESSION

By Alexandra Richards QC* n Australia, women first became eligi Ible to practise law in Victoria in 1903 by the pass age of the strangely titled Women's Disabilities Removal Act 1903 (Vic). This Act enabled Flos Greig to be admitted to practise as Australia’s first woman lawyer. The other states followed suit over the next 20 years: Legal Prac titioners Act 1904 (Tas), Legal Practi tioners Act 1905 (Qld), Female Law Prac titioners Act 1911 (SA), The Women's Legal Status Act 1918 (NSW) and the Women's Legal Status Act 1923 (WA).

The history of women’s admission to practise as lawyers both in Australia and overseas (in France, the legal profession was declared open to women on the same terms as men in 1900 and, in England, 1921) parallels the history of the movement for women’s suffrage in the late 19th and early 20th centuries.

As women successively became enfranchised throughout the western world, those behind the suffragette movement considered that equality for women would now be assured. But the battle was just beginning. With the events surrounding the Second World War there was a reversal both in government and social policy. Women were silenced and became silent. It wasn’t until some 50 years after women were enfranchised in most western countries that the feminist movement resurged, heralded by pub-

Reform ssue 83 2 0 0 3 ~ Page 4 Women in the law lications such as The Feminine Mystique in 1963, did not correspond, but were alarmingly low. This where Betty Friedan contended that deeply entrenched experience was neither unique to Australia nor to the attitudes and social barriers imprisoned women, and law. The passage of equal opportunity legislation, called for expanded career opportunities, equality with although important in the elimination of direct and men and the destruction of the myth of the happy certain indirect discrimination, had done little where housewife. Women burned their bras while others systemic issues were concerned and most notably divested themselves of their aprons and/or their hus within the male strongholds of society and the key bands. decision making areas such as the law and politics.

Emerging studies, such as the Keys Young Research on Thus, whereas it was once commonly Gender Bias and Women Working in the Legal Profes thought that it was all a matter sion: Report (prepared by Keys Young for the NSW Department for Women, March 1995) suggested that a of time, it was becoming clear matrix of discriminatory barriers forming part of the that the so-called ‘trickle up’ professional culture made it difficult for women to par theory was not working. ticipate fully in the work, aspirations, rewards and responsibilities of the legal profession. Thus, whereas it was once commonly thought that it was all a matter Legislative recognition of the feminist movement came of time, it was becoming clear that the so-called ‘trickle through the passage of sex discrimination laws that, in up’ theory was not working. the main, reflected and adopted the principles defining discrimination against women contained in the Con Women lawyers vention on the Elimination on All Forms of Discrimina tion Against Women (CEDAW) adopted in 1979 by the associations UN General Assembly. In Australia, we saw the enactment of the Sex Discrimination Act 1984 (Cth) In response to a growing acknowledgment amongst and the Affirmative Action Act 1986 (Cth). The States women lawyers that the ‘trickle up’ effect, without and Territories had enacted their own corresponding more, would not redress the imbalance, the mid-1990s laws commencing with the Sex Discrimination Act saw the emergence and re-emergence of the women 1975 (SA). lawyers associations as activists and vehicles for the advancement of women in the legal profession. But almost 100 years after women first were admitted to practise, 30 years after the resurgence of the femi At the launch of Australian Women Lawyers on 19 nist movement and some 15 years after the passage of September 1997, its patron, Justice Mary Gaudron, in sex discrimination legislation, the statistical profile of answering the question she posed ‘Why a women women practising in the law had altered little. In Aus lawyers association?’ said: tralia by the mid-1990s women had been graduating from law schools in equal numbers to men for two ‘It is, I think, a tribute to the women’s decades and in most states women had consistently movement, generally, and to the growing graduated in numbers in excess of men for close to a understanding that equality is a complex decade. The statistics were similar in the United issue that membership of a women States, Canada and New Zealand. lawyers association or even, participation in the activities of those associations is The same statistics disclosed that despite women’s now regarded as professionally accept increasing prominence as law graduates and articled able. It was not always so. Regrettably, clerks there was not a corresponding increase in the it is not universally so even now. number of positions held by women in the profession generally and, more importantly, that women’s ‘Certainly, 30 years ago in New South appointments to senior positions in the law not only Wales, many of the women then entering

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practice rejected membership of the tion in the law. The gathering of such empirical data Women Lawyers’ Association saying, ‘I’m was necessary as the mere assertion of discriminatory a lawyer not a woman lawyer and I have work practices etc, despite the growing anecdotal evi no intention of being identified as such. ’ dence, was oft met with disbelief or flat denial. It was an attitude born of the belief that I then shared, namely, that once the doors A plethora of information and studies, such as the were open, women would prove that they Equality of Opportunity for Women at the Victorian were every bit as good, and certainly no Bar report, commissioned and published by the Victo different from their male counterparts. rian Bar Council in 1998; Herron, Woodger and Beaton Therein, was an insidious untruth the Facing the Future: Gender, Employment and Best effects of which are with us still. The Practice Issues for Law Firms (Victoria Law Founda truth is that, in some respects, we are the tion, 1996); NSW Department for Women and NSW same but in others we are different. And Attorney-General’s Department, Gender Bias and the when we admit that difference, when we Law: Women Working in the Legal Profession: Report assert our right to be different, we are of the Implementation Committee (1996); and Taking going to be significantly better lawyers. Up the Challenge—Women in the Legal Profession Moreover, the legal profession is going to Report, commissioned by Victorian Women Lawyers in be a better profession and the interests of 1999, highlighted these formal and informal hurdles to justice are going to be much better served. ’ active and effective participation. They noted the low percentages of women in the senior ranks as partners The work of the women lawyer associations targeted in law firms, members of the Bar or of the Bench, the hurdles leading to the high attrition rates of women payment of lower salaries for purportedly the same or lawyers, and consequent discontinued participation in similar work and the allocation of work according to the law, through to its more senior ranks. Focus was perceptions of ‘female’ or ‘male’ attributes. placed on the removal or dilution of the more obvious obstacles to women’s continued participation in the In her speech delivered to NSW Women Lawyers Asso law, such as the establishment of child care facilities ciation on 15 October 1997, Justice Catherine Branson and committees, (in some States) the introduction of said: parental leave, subsidisation of chambers, amend 7 have a fear, however, that a significant ments to professional codes of ethics to incorporate problem does arise because, as women in rules prohibiting sexual harassment, the discourage our profession, we are made to feel that ment of sexual criticism and excessive scrutiny, the we are outsiders—not of the mainstream. establishment of complaints-handling procedures, the Those few women who do achieve promi establishment of protocols for court etiquette, the pro nence in the law provide no real challenge vision of mentoring systems, the establishment of flexi to this notion—we are easily categorised ble work practices, and the provision of educative and as exceptions; we do not exist in sufficient support networks. numbers to challenge stereotypes.

There are, of course, other problems. Jus The empirical data tice Gaudron, in the passage from her recent speech from which I have quoted, The women lawyer associations have also been respon identified some of them. Others, I expect sible directly or indirectly for the gathering and collat flow from what has been described as sex ing of the empirical data necessary to establish and based stereotyping of traits. That is, that prove that there exist discriminatory practices and men are generally perceived as naturally phenomena (albeit mostly unconscious or unintended) possessing the competency cluster of inherent in the legal profession and which operate as traits—strength, toughness, assertion, barriers to women’s continued and effective participa responsibility, authoritativeness, credibil

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ity, whilst women are seen as naturally are often not defined, or are loosely possessing the nurturing cluster—caring, defined by use of terms such as “merit” or vulnerability, passivity, indecisiveness. “best person for the job”. Choices are That is, men are assumed to be credible made which are based on assumptions, and competent, (ie, likely to make good inherited values and an attempt to find lawyers) until they demonstrated other the same sort of person who has previ wise; women are seen as lacking in ously done the same job well.1 assertiveness and credibility, (ie, unlikely The more informal barriers to women’s effective partic to make good lawyers) until they demon ipation in the law such as those adumbrated above strate otherwise. Thus, even when women are, for obvious reasons, difficult to prove when and remain in the profession, there is a ten where occurring and thus less easy to tackle and eradi dency for them to be easily siphoned off cate. A rare but stark example of stereotypical into supportive, back-room roles whilst assumptions operating in practice may be seen in the their male colleagues are encouraged into results of the Equality of Opportunity For Women at more prominent roles. ’ the Victorian Bar report which, in part, dealt with the With a view to stemming systemic discriminatory prac results of a survey conducted in 1998 of Victorian court tices based on stereotypical assumptions, the women appearances. The report confirmed that gendered lawyer associations advocated the adoption of trans briefing practices existed, summarising them as fol parent selection criteria in the making of appoint lows: ments. So, for example, Australian Women Lawyers in • A higher proportion of men than of women on the its Briefing Paper to the Hon Daryl Williams AM QC Bar Roll appeared in the courts and tribunal stud MP: Women in the Legal Profession, 5 May 1998 ied during the data collection period, and this dis stated: parity was not simply attributable to the relative ‘The effects of such assumptions include: seniority of female and male barristers; women not being selected, or being less • Male barristers appeared to have greater opportu likely to be selected for the sort of work nities for junior work than did female barristers; (e.g. direct contact with clients, highly remunerative areas of work) which • Female barristers made 13.6 per cent of total enhances young lawyers’ prospects for pro recorded appearances, but this proportion varied motion; assigning different values to dif considerably according to length of hearing, court, ferent areas of work (e.g. regarding family area of law and type of hearing; law as less important than mergers and • Female barristers made a higher proportion of acquisitions); choosing people for various appearances in cases of shorter duration and in the tasks because of their similarity to the Family Court, and a lower proportion of appear sort of person who has previously under ances in the trial division of the Supreme Court taken such tasks or because of assump and in commercial and personal injuries cases. tions about characteristics pertaining to a However, the case sample indicated a significantly person’s sex determining whether they higher volume of work available in the commercial would be suited to a particular area of and personal injuries areas than in family law; practice (e.g. family law is traditionally seen as an area in which women practise, • A limited amount of prosecution work offered virtu while business related law is seen as a ally the only opportunity for women barristers to more traditionally male area). gain criminal trial experience, and they were also largely excluded from civil jury trials; In other words, in choosing who is best for a particular task, or what qualities are • Women barristers were less likely to receive multi required for a particular task, the criteria ple briefs;

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• There was a difference between private and public barristers and within the public and private domain sector briefing patterns, but also a difference women lawyers in significant numbers at all levels of between public sector agencies in their prepared the profession. The use of the American noun ‘nor ness to brief women barristers.2 malcy’ might aptly describe the safe haven where, in future, the relevant differences and distinctions can With a view to redressing these discriminatory briefing dissolve and, in the words of Justice Branson above, practices, the report set forth various recommenda there exist sufficient numbers to challenge the stereo tions, which have been the subject of a working party types. established for that purpose by the Victorian Bar Council over the past five years. In 2003, the Victo * Alexandra Richards QC is a Victorian barris rian Bar’s Equality Before the Law Committee collated ter. She was President of Australian Women the results of a further survey of court appearances Lawyers from 1997 to 2000. conducted by the courts over certain periods in 2001 and 2002 with a view to ascertaining whether the adoption of the recommendations and the work of the Endnotes working party had been effective. According to the 1. See also M Thornton, ‘Affirmative Action, Merit and the then Chairman of the Victorian Bar Council, Jack Liberal State’, (1985) 2(2) Australian Journal of Law and Rush QC, the results demonstrated that not only had Society, 30: ‘the higher one goes in the hierarchy of jobs, the gendered briefing practices not been redressed but more significant is the notion of merit. Paradoxically, merit criteria become correspondingly more elusive so that the eval indeed seemed to have worsened.3 uative process becomes less visible.’ 2. R Hunter, Equality of Opportunity for Women at the Victo However, despite such statistics, all is not doom and rian Bar: a Report to the Victorian Bar Council, Melbourne, gloom on the legal landscape for women. It is the case Victorian Bar Council, 1998, 61. that since the resurgence of the women lawyer associa 3. The Australian Financial Review, 22 August 2003, 5. tions, the number of appointments of women to the Bench in state and territory courts, particularly the District and Local Courts, has escalated (whether through the application of affirmative action principles or those of‘merit’). In response to the Equality Before the Law Survey report the Victorian Attorney-General, Mr Rob Hulls MP, has announced that law firms acting for state government agencies will have to adopt equal opportunity principles when allocating work to barristers. It is likely that other States and Territo ries will follow.

Women’s experience in the law demonstrates, however, that although the more formal barriers to women’s participation in the legal profession are comparatively readily addressed with a modicum of goodwill and effort, the more informal barriers are less capable of detection and less easily eliminated. But how is that to be achieved in the face of these informal barriers? It is the writer’s opinion that the informal barriers will only be substantially removed when the numbers of women practising in the law are significant. The efforts to date have in the main removed the formal barriers. It is now incumbent on the legal profession to actively recruit both to the ranks of solicitors and

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Women in the law some milestones

1902 Ms Ada Emily Evans becomes the first woman to graduate from law in Australia. She was unable to practise until the Women’s Legal Status Act 1918 (NSW) was enacted. Ms Evans was admitted to the Bar in 1921, but declined to practise as too much time had elapsed.

1903 Women allowed to practise law in Victoria.

1904 Women allowed to practise law in Tasmania.

1905 Ms Flos Greig becomes the first Australian woman to enter the legal profession when she is admitted as a barrister in Victoria.

Queensland allows women to practise law.

1911 Women in South Australia allowed to practise law.

1918 Women allowed to practise law in New South Wales.

1923 Women allowed to practise law in Western Australia.

1925 Mary Tenison Woods (nee Kitson) and Dorothy Sommerville establish the first Australian female legal partnership, in Adelaide. Ms Sommerville also becomes the first female member of SA’s Law Society.

1962 Ms Roma Mitchell (later Dame Roma) becomes Australia’s first female Queen’s Counsel.

1965 Ms Roma Mitchell is appointed to the Supreme Court of South Australia—the first female woman in Australia to be appointed to a superior court. She later becomes the first female Acting Chief Justice.

1976 Justice Elizabeth Evatt is appointed the first Chief Justice of the Family Court of Australia.

1988 Justice Elizabeth Evatt becomes the first woman President of the Australian Law Reform Commission.

1987 Justice Mary Gaudron becomes the first woman justice of the High Court of Australia.

1990 Justice Deirdre O’Connor becomes the first female Judge of the Federal Court of Australia and President of the Administrative Appeals Tribunal.

1991 Dame Roma Mitchell is appointed Governor of South Australia, becoming the first female vice-regal representative in Australia.

1999 Justices Margaret Beazley, Carolyn Simpson and Virginia Bell become the first all-female Bench to sit on an Australian appeals court in the New South Wales Court of Criminal Appeal.

2000 Ms Diana Bryant QC is appointed the first Chief Federal Magistrate of the new Federal Magistrates Service. some milestones

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Women n t in e Bench

By The Hon Justice Margaret Beazley*

udging is an exacting business. It requires high levels of concentration. It demands an Janalytical mind. It calls for clear writing skills. It occupies enormous hours. And in my experience it is becoming more serious.

The last of these observations is, I believe, due to a variety of factors, including case management practices, alternative dispute resolution, and other restrictions placed on litigation. Alternative dispute reso lution has become institutionalised and is increasingly becoming part of a mandatory process before access to the traditional court system is permitted. The Farm Debt Mediation Act 1994 (NSW) is one example. Increasingly, many disputes in, for example, the District Court are being referred to arbitration before access to a hearing is granted. The Supreme Court may compulsorily order mediation.1 The rights of appeal to the New South Wales Court of Appeal have been restricted, so that, subject to certain exceptions, an appeal may not be brought without leave of the Court if the amount involved is less than $100,000.

There are many consequences that flow from these various require ments, practices and restrictions. From the judicial perspective, it means that it is the disputes that cannot settle or those involving more serious issues that are the daily fare of the Court. This is prob ably as it should be. But it does mean that the settlement rate, at

Reform Issue 83 2003 - Page 20 Women in the law least in the Court of Appeal, is very low and the legal within it a number of assumptions that a person’s life issues usually more complex. As I said, the business of may be affected by other circumstances that will judging has become more serious. impact upon future earning capacity. The ‘usual’ allowance is 15 per The view I have just cent and this has expressed is, I ...many judges groaned behind closed been recognised by believe, one that the High Court as doors as to how to make a sentence would be expressed being permissible by any sitting judge, flow using *him or her’ and complained without the need for male or female. of the need to do so. It was not obvious express findings or to many that a simple rearrangement of reasons. For my part, I under the sentence structure worked wonders. take the judicial task I find, however, that from the perspective in the Court of that there should be Appeal an unsuccess no difference in judicial style or, more importantly, ful defendant will often complain that a discount of outcome depending upon whether one is male or greater than 15 per cent should have been allowed in female. That is as it should be because there are as the case of a woman who may marry or is married, or many issues in litigation that directly affect males as who has or may intend to have children. In Sullivan v there are issues that affect females. The rights of Gordon in a judgment agreed in by the Chief Justice, both, as individuals, have to be recognised by the the President of the Court of Appeal, Powell and Stein system. There undoubtedly are differences in both JJA, I said: judicial style and outcome depending upon the individ ual judge, but that is a different thing altogether. To the extent that child bearing and rear ing might affect a person’s earning abil I was appointed at a time when there was a raised ity, it should, in my opinion be reflected consciousness of gender issues. This was apparent in in the usual contingencies, unless in a the use of language in particular, although many particular case there is evidence to sup judges groaned behind closed doors as to how to make port an increase in the percentage deduc a sentence flow using ‘him or her’ and complained of tion for contingencies.2 the need to do so. It was not obvious to many that a simple rearrangement of the sentence structure The lesson is only slowly being learnt. worked wonders. And it appeared to occur to none to structure the sentence so that ‘him’ followed ‘her’ as it There are other instances in the Court’s judgments naturally does in an alphabetical sense. Notwith that indicate that there are those who refuse to be standing these semantic squabbles, there has been a tamed. In a judgment that received some media atten major and systemic change in judicial language. tion, the inhabitants of a housing block were described in these terms: ‘The inhabitants of these flats were a My reference to judicial language may appear a small motley crew. Many of them had psychiatric disorders. matter but it demonstrates, in my opinion, two things. Some of them had been patients at institutions. Some Firstly, we have come a long way in recognising the were addicted to drugs or alcohol, or both. Many of existence of women in the commerce of everyday life in them were foreigners, and many of them were female.’ all its facets. That was missing for most of my time as a barrister. Secondly, it also demonstrates that it has For those who work daily with the author of these not been an easy transition and success is not com comments, they are seen to reflect an individual’s shaft plete. Again, this may be demonstrated by a simple at political correctness rather than an underlying bias. example. In New South Wales, an allowance is made That would never be apparent to the litigant or other in an award of damages for future economic loss for casual reader, and a judgment ought not be the place vicissitudes. The allowance for vicissitudes contains to play out such sentiments.

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There are also lifestyle issues that I venture to suggest female judge has the same standing as her male coun affect the female judge far more than their male coun terparts, and many, many others where this is not con terparts, especially those who have children. This is sidered an issue. An example of the former is when, being addressed in the Magistrates Courts with part sitting in the Court of Appeal with two other male time positions being available. It has been highly suc judges, I was consistently referred to with the title cessful. It is difficult to know whether and how this appropriate to a judicial officer in an inferior Court. My male colleagues did not ‘hear’ the mode of address until I raised the matter with the presiding judge. Another example, and one experienced by many, is to One has a myriad of experiences call the female judge by the first female judge’s name as a judge, some of which bespeak that comes to mind. Justice Ruth Ginsberg told me of an apparent inability to accept she has the same experience. On more than just the that the female judge has the same isolated occasion, she has been referred to as Justice standing as her male counterparts, O’Connor by male advocates in the US Supreme Court.

and many, many others where this Although my experience is thus variable, I suspect is not considered an issue. that the influence of women at the judicial level is sig nificant. The influence is occasionally overt, but more usually subtle. As one of my male colleagues fre could translate to judicial positions in other courts quently responds to any disagreement I might have on where trials are longer and more complex. However, a particular approach in a case involving a female liti flexible sitting practices might be an option that calls gant: ‘That’s what you’re here for Margaret—to keep for consideration. I experimented with these when sit us honest.’ I had thought my role went far beyond ting as a judge of the Federal Court. I commenced and that, but at least the point is usually made in the case finished my sitting day earlier so as to have an unin at hand. After all, the essence of our legal system is to terrupted period in the afternoon for judgment writing. provide individualised justice. The practice had its own difficulties and I do not know * The Honourable Justice Margaret Beazley is whether it would have been a successful long-term a Judge of the Court of Appeal, Supreme strategy. I was soon after appointed to the Court of Court of New South Wales. Appeal where such a practice is not feasible. However, it is encouraging that the Federal Court and its Chief Justice were amenable to the concept of flexibility. Endnotes

Another issue that I consider to be of significance is 1. Supreme Court Act 1970 (NSW), s 110K. the extent to which judges in a Court support male- 2. (1999) 47 NSWLR 319. only institutions and clubs. Unless the judiciary is prepared to lead in this respect and by its actions inform the entrenched interests in such bodies that the exclusion of a class of persons, in this case on the ground of gender, is inappropriate, I suspect that the status and interests of women in society generally will remain secondary.

I have not attempted in this short overview to provide an academic analysis of the influence women do have in their role as judicial officers. The raw data to do so is not available, nor is this the occasion for it. One has a myriad of experiences as a judge, some of which bespeak of an apparent inability to accept that the

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A PERSONAL PER S ECTIV E of a WOMAN BARRISTER

By Carolyn Sparke* m begin this article with a disclaimer—I have no I idea whether my experience is typical of those at the Bar. I have been at the Bar for about I I years. I do not practise in an area involving family law or children. (While many women do, there are plenty who don’t!) I broadly describe myself as having a commercial practice, with a speciality in deceased estates and dabbling in equity. I have found something of a ’market niche*. I do not have children. I have a very tolerant and supportive partner. What I will tell you is what life is like for me—I know that life for others can be different.

The Bar is an idiosyncratic, eclectic place. It has a variety of charac ters, generally robust, often arrogant, frequently charming and alto gether individualistic. There are those who are well-suited to vigorous cross-examination and others well-suited to studious intellectualism. Some really talented people never seem to make it, and others with busy practices can make you wonder how they got through law school. With that background it is difficult to say that anyone can have a ‘typi cal’ experience. However, most of the Bar are still men, so I guess the women’s experience is still not ‘typical’.

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Overt sexism still exists. Of the two recent batches of pat on the back and a touch on the arm. When wonen silks appointed, comments were heard around cham moved into the ‘club’ of his chambers, without being bers such as these—‘She would never have got that if outright abusive he was perceived as making their she was a man’, ‘token choice’ and ‘I wonder who she transition difficult. Did he do it because they were slept with’. The reality is that over the years there new or because they were women? While he is known have also been criticisms of choices of male silks as as being crusty he has not made life difficult for the ‘nylon silks’. Every year it is always a subject of dis younger men who came to the floor. However, he has cussion but usually without the vitriol directed at the happily worked with female juniors and, I understand, women who are perceived as ‘not up to scratch’. given them due respect. How does this old-fashioned crusty behaviour translate to our professional lives0 The last two ‘junior silks’, obliged to give the toast at For some it is water off a duck’s back—for me I am the Bar dinner, have both been women. They both able to have a laugh, have robust discussions with him gave excellent performances and this may well begin to and other men, and I feel it has no impact on my prac dispel the notions that the female silk is purely a tice at all. However, some will feel intimidated. Some token appointment. women will be unable to feel that they are treated as equals and they will feel that they get less than the You don’t need to be a silk to be a target of sexism. I professional respect they deserve. have twice in my career at the Bar been told by solici tors friendly to me that they were unable to brief me That perception is sometimes right. for a trial because the client did not want a woman running the case. One of those was early in my career The true gender divide at the Bar is far more subtle. and one was very recent. By the same token, early in Some of it is systemic. Because I do not have children my career I was specifi I do not suffer much of it cally asked to run a pros but there are real struc ecution in which I would We will never know if we do tural problems for self- be required to cross well, or badly, because of employed mothers. Those examine a young male who have children and gender, age, membership policeman about sexual understanding husbands of the ‘club’ of a particular matters in the hope that manage to combine moth a woman asking him speciality, or for reasons erhood and a career. How those questions would completely unrelated. ever, a budding young embarrass him. More prospective barrister recently, a client has friend of mine recently commented that she was glad a woman was running held off coming to the Bar in favour of having a baby. the case as she felt the primary witness on the other There are many women who take ‘time out’ or become side would not be able to ‘charm’ a woman in the way part-time barristers because they are unable to juggle she would a man. the needs of working mothers. I do not overlook the fact that there are fathers at the Bar who face the Is there any substance in any of this? Obviously we same structural problems. Their needs are probably would like to think not—we are all advocates who per identical. However, there are fewer of them and social form to the level of our competence. But you have to expectations are still that women will carry that load. wonder at the subtleties as to how we are received both by clients and the Court. My partner encourages Studies over the years have revealed that discrimina me to wear the bright lipstick which would go with tion can be far more subtle. We often get feelings of putting forward an ‘aggressive female persona’. I do being overlooked, of the briefing practices within firms not do it but I wonder if there is merit in the comment. working against us. But we will never know. We will never know if we do well, or badly, because of gender, One of the older male silks I know has a particular age, membership of the ‘club’ of a particular speciality, crusty reputation. He greets younger women with a or for reasons completely unrelated. We will never

Reform ssue 83 2003 - Page 24 Women in the a w know if solicitors’ briefing practices But for all of this description of how life is for me at the Bar, the statistics are based on pure merit, or other, are nonetheless revealing. A report commissioned by the Bar in 1998, subtle factors relating to the role of dealing with the equality of opportunity for women at the Bar, observed men and women—even more subtle that women in practice are still not running the big cases. Whether as a than the ‘old school tie’—male result of perceptions of competence, perceptions of women having to work solicitors not used to working in a shorter days to pick up children or simply a matter of generational change, team with women, not wanting to the statistics at that time were that although women were well repre place control into the hands of a sented in certain jurisdictions (family law and children’s law), and they woman? were reasonably well represented in the lower courts and at interlocutory stages, they were still under-represented in superior courts. Justice Mari- Save for the comments I made ear lier, I have never perceived either from client or solicitor any hesita ...an incompetent female silk will tarnish the tion in seeking my advice or send reputation of women forever. Her failings will ing me a brief just because I was a be held high. An incompetent female judge woman. In my first clumsy years, on a handful of occasions I experi will be similarly treated... enced what appeared to be patron ising comments from the Bench lyn Warren, a female judge appointed to the Victorian Supreme Court a and from opponents. One was few years ago, observed at a ‘welcome’ by the Women Barristers’ Associa overtly directed towards me as a tion that from the Bench at that stage she had observed a very small per woman from an opponent (a refer centage of women appearing before her. I gather from recent newspaper ence to me as a ‘little girl’, ridicu reports that she continues that observation and still anecdotally observes lous on any basis, especially ridicu that women are under-represented in serious contested matters before her. lous when I am 5’10” and broad shouldered!) but the others were To some extent the statistics are reflected in my practice. I am flat out hard to tell whether they were busy all of the time—a large number of mediations, lots of paperwork. directed to me as a newcomer to However, I run few major trials. It may be the case that so many of the the ‘club’ or as a woman. matters in my jurisdiction settle at mediations. Maybe it is the case that my reputation is not as good as I think it might be. Maybe it is the case Women are well represented in the that I suffer the hidden prejudice that I am talking about. The reality is probate area (my particular spe that I will never know. None of us will ever know. ciality). Women are represented in tribunal appearances of all types. We all know incompetent male silks. While there are private grumbles If women are still statistically about them, few people make overt comment. We have all experienced under-represented in the superior surprising decisions from male members of the Bench. Again, we grumble courts, why is it so? Is it a simple in private but no overt comment is made. However, an incompetent matter of generational change, female silk will tarnish the reputation of women forever. Her failings will with women yet to become numeri be held high. An incompetent female judge will be similarly treated—her cally senior enough in firms to frequency of appeal decisions will be a target of mirth. equalise briefing practices? Per haps when women become peers The flip side is that competent female appointments are held high—the and equals within those firms they Judge or silk held as a kind of ‘superwoman’. A currently sitting judge will be able to break the pattern told me once that she felt it was a great advantage to be one of the few and equalise briefing women at the Bar of her time. When she had a good day everybody knew practices—whether calling upon about it. They may initially have under-estimated her but she was able to the old girl’s network or simply achieve a good reputation probably more quickly than a man because she briefing those who are competent stood out, she was unusual and her successes were more noticed than a regardless of their connections. man’s would be. Continued on page 75

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rans-iasman experience.

By Christine Grice* n New Zealand, women lawyers currently hold Ithe positions of Governor-General, Attorney- General, Chief Justice, and presidents of the New Zealand Law Society and the Otago and Taranaki District Law Societies. New Zealand also has its second consecutive woman Prime Minister (nei ther lawyers). Is the alignment of these stars evidence that women lawyers in New Zealand have achieved full equality, even dominance? Not really.

The story begins in 1897, when Ethel Benjamin was the first woman admitted to the New Zealand Bar. She had to overcome many obsta cles. She caused headaches for the gentlemen lawyers of Dunedin about use of the law library, about court dress and about things as simple as walking in pairs for formal occasions. But the one insur mountable hurdle was cleared from her path when she was in her third year of study for an LLB degree at the University of Otago. The New Zealand Parliament, which three years previously had enacted the Elec toral Act 1893 to give women the vote, passed the Female Law Practi tioners Act 1896, enabling Ethel Benjamin’s admission.

The situation was rather different in Australia. There, in 1904, Edith Haynes was in every respect—except one, as it turned out—qualified for admission as a legal practitioner in Western Australia. However, the full court of the Supreme Court (WA) declined her application on the ground that women were not eligible, solemnly holding that the word ‘person’ in the Legal Practitioners Act 1893 did not extend to the female of the species. And, in England, the Court of Appeal refused four

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women graduates permission to register for Law Soci Eight thousand, eight hundred and twenty four ety examinations.1 The court relied heavily on a medi lawyers held practising certificates in July 2003 of aeval treatise which laid down that ‘all who are not whom 3,237 (36.7 per cent) were women. Women are prohibited by law may be attorneys but the law will most heavily represented in work for professional asso not suffer women to be attorneys nor infants nor serfs’. ciations, as employee solicitors and in government It was not until passage of the Sex (Disqualification) employment. They are, however, still significantly Removal Act 1919 that the barrier was removed. under-represented as partners/sole practitioners in firms, and in the ranks of Queen’s Counsel and the judiciary. Slow progress

Private practice The early head start in New Zealand did not, however, mean that droves of women practised law from then on. Women struggled to get a start in the law. It was Until recent years, getting a job in a law firm was not until the World War II years that a woman became much more difficult for a woman. Generally women a partner in a law firm and another woman set up her were not regarded as ‘real lawyers’. Gradually, how own firm. But at that stage there were still fewer than ever, the growing numbers of women in the profession 20 women in practice. shifted the perception and eased entry. The larger numbers at law school also played a part, with female Employment after the war was mixed but still students often more than matching their male counter favoured men. Society’s slow-growing recognition of parts in achieving the highest grades and thus attract the place of women in some professions was not ing the attention of the big commercial firms which reflected in the attitudes of most men in the law. traditionally recruit top students. More generally, female participation in the workforce It is still more likely for women to be found in certain was not encouraged. The post-war baby boom and a areas of practice. They predominate in family law and focus on motherhood deflected many women from law. are fairly equally represented in the resource manage ment, administrative and employment areas of law. The great leap forward Men still outnumber women in the areas of commer cial, civil, criminal, property, tax and trusts.

The 60s and 70s brought a change in attitude with Women make up 30.9 per cent of all barristers sole women being encouraged to return to the workforce (lawyers who have chosen to practise at the separate and the start of the women’s liberation movement. Bar). But few have yet penetrated to the most senior They brought growth, both in the numbers of women level. Of 82 Queen’s Counsel currently in practice, studying law and in the numbers of women lawyers only eight are women (9.8 per cent). visibly achieving—in private practice, as corporate lawyers, in academic circles, in the judiciary, in No discussion of the role of women in private practice politics—a progress which continues. would be complete without mention of the many women who, through the years, have worked in the In 1966, 31 women were in practice. By 1976 the ‘second tier’ of legal work as clerks, secretaries and number had risen to 142. From 1967 to 1977 the pro legal executives. By the mid-60s the New Zealand portion of women law students nationally increased Law Society (NZLS) had negotiated with technical from six per cent to 30 per cent. Quite suddenly institutes to establish a course for ‘legal executives’ women were entering the profession in reasonably sub and a certificate course was launched at the Auckland stantial numbers. From 1988 to 1999, women Technical Institute in 1972. The majority of those who accounted for 51.4 per cent of all new admissions to took up this option were women. The course is cur the bar. In 2002, women accounted for 56.2 per cent of rently offered nationwide. In 2002, there were 821 all admissions. students: 92 per cent of them were women. The New

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Zealand Institute of Legal Executives (an organisation with voluntary however, showed that women membership and an excellent working relationship with the New Zealand tended to be appointed lower on Law Society) currently has 670 members, 90 per cent of whom are women. the scale than men, resulting in slower promotion. The dean com mented that woman appointees Practice in government agencies tend not to have had significant and corporations experience in practice, and to be homegrown, with many leaving later for practice or overseas posts. Many women lawyers have found it easier to get a start in corporate law, working for the public service, local government, professional associations or major corporations. In past years, government jobs were generally The judiciary easier to find than work in law firms, and they offered equal pay for men and women. Women who work in the public service comment that it does far better by and for women than the private profession. These days there New Zealand’s first woman judge is a two-way flow between private practice and the corporate sector. was appointed to the District Court bench in 1975. There are now Some women with law degrees have made careers in the public service women judges in all the jurisdic and corporations, using their qualifications but without practising. One, tions. In 2002, there were 27 at age 38, was appointed to head New Zealand’s largest company. female District Court judges on the 120-person bench (22.5 per cent). One of the five Masters of the High The law societies Court is a woman. There are five women of the 32 permanent and The legal profession’s most important institution is the law society. As temporary judges of the High well as administering and regulating the profession, it has an important Court (15.6 per cent). Two women role in law reform, policy and consultation on legal and judicial appoint sit on the Court of Appeal—one ments. specifically appointed, and the Chief Justice, by virtue of her Justice Judith Potter led the way as the first woman district law society office. president in Auckland in 1987 and went on to become, in 1991, the first woman to lead the New Zealand Law Society.

In 1999, the three candidates for the presidency of the New Zealand Law Politics Society were all women, all NZLS vice presidents. Apart from those who have made Overall, however, women have been and remain under-represented on their mark in the profession, the both the New Zealand and district law society councils. judiciary and academia, women lawyers have slowly made their Academic circles way into politics. Ellen Melville, the second New Zealand woman to

The first woman law lecturer was appointed in 1959. She has been fol be admitted, became New lowed by many more, at all levels from junior lecturer to dean, including Zealand’s first woman city council the inaugural Dean of Law at Waikato University and a dean of the lor when she was elected to the largest law school, at Auckland University. Auckland City Council in 1913. She was twice passed over for the Universities offer some advantages to women in the law, with their trans position of deputy mayor but was parent appointment processes, equal opportunity policies and more flexible the longest-serving member of hours, which are more accommodating for women with family responsibili Auckland City Council when she ties than private practice. A recent review of the Otago law faculty staff, died in 1946. She also ran for Par-

Reform Issue 83 2003 ~ Page 28 Women in the law liament on seven occasions but, It is sometimes said that aspirations to the Bench and to partnership have while polling strongly on each occa been curtailed by women themselves giving up practice. However, com sion, never made it. paring admissions over a 20-year period with corresponding years at the bar, there is little difference in the leaving rates between men and women. It was 1978 before a woman lawyer was elected to Parliament: as at 2003 there have been 10 women Organised initiatives lawyer MPs, four reaching ministe rial rank. One of those four is Regional women lawyers’ groups have sprung up around New Zealand, Georgina te Heuheu who was, in offering networking opportunities, mutual support and, in some instances, 1972, the first Maori woman to be mentoring programmes. The Auckland District Law Society and the Auck admitted as a lawyer. land Women Lawyers Association have been very active in promoting equal employment opportunity policies to legal firms. The equal employ ment opportunities manual entitled Equal in the Eyes of the Law—Imple Remaining menting EEO in New Zealand Law Firms was launched in Auckland in barriers August 2000.

While the number of women enter Universities offer some advantages to women ing the profession has increased in the law, with their transparent appointment markedly, the numbers entering legal partnerships, in the senior processes, equal opportunity policies and ranks of the profession and on the more flexible hours... bench grow slowly. Most lawyers recognise that it is more difficult In 1994, the New Zealand Law Society’s Board established the Women’s for women than men to make Consultative Group (WCG), which focusses on issues for women in the pro progress in the profession. Subtle fession. One of the WCG’s main objectives has been a fairer judicial barriers are more difficult to iden appointment process. A Judicial Appointment Unit has now been estab tify and deal with than the blatant lished: its guiding procedural principles include clear public processes for ones of the not-so-distant past. selection and appointment, criteria for appointment, opportunities for These include lower pay in the expressing an interest in appointment and a commitment to promoting middle ranks and allocation of diversity. work of a lesser value, both in financial and prestige terms, and dealing with family responsibili Supporting each other ties. The issues of broken careers for child-rearing and juggling Statistics show that, over the past 20 years, more than 50 per cent of career and family commitments admitted women are still in practice. Why, then, does the level of partici remain impediments to the careers pation at partner level, in the ranks of QCs, and on the Bench not yet of women in the profession. These reflect the increasing body of qualified experienced women? are also becoming issues for more male lawyers who seek better bal Generations of lawyers have been educated to rely on the conventions and ance in their lives. Failure to decisions of the past rather than to look to the future. This may explain, redress imbalances has seen more in part, why men in the law have been slower than men in other profes women defect to their own firms sions to accept women as their peers. Women initially make their way in and the public service, and may the profession by taking on the ‘shell’ of their male colleagues and trying ghettoise women lawyers and their to emulate them. The title of ‘honorary bloke’ is bestowed, only partly in work. jest. Dame Silvia Cartwright, the Governor-General, speaks of the need for the older and more established women within the profession to support

Issue 83 2003 - Page 29 Reform Women in the law the less experienced women coming up through the ranks. The support and promotion of women lawyers by influential male colleagues has made the way easier.

The legal profession has been slow to respond to the winds of change. Militant feminists have been an anathema to its conservative members. Young women lawyers in the 1960s and 1970s, by and large, maintained a dignified silence on feminist LINE issues and allowed their intellect and personal qualities to do the talking. Some have since risen to the highest possible positions of standing and authority in the community, the law and com merce. With voices that are now both heard and respected, they promote the interests of women in a measured and positive manner. They do, nonetheless, owe a debt of gratitude to ‘the trou Almost 30 years of Australian blemakers’ who, either deliberately or unwittingly, Law Reform Commission sacrificed their personal business careers by reports are now available on the aggressively promoting the feminist cause, fighting popular opinion and precedent. Internet for the first time - dra matically improving access to * Christine Grice is the outgoing president of the New Zealand Law Society, a posi the ‘definitive collection’ of tion she has held for more than three national law reform work in years. She was convener of the New Australia. Zealand Law Society Women’s Consulta tive Group and former president of the Waikato Bay of Plenty District Law Society. While the ALRC's more recent She practises in the area of commercial liti publications are automatically gation and dispute resolution and has a large mediation practice. posted online at the time of release, the ALRC's older This article is based on a chapter Christine Grice has contributed to a book due for reports are now available on the publication later this year, entitled Law Sto homepage in PDF and ASCII ries: Essays on the New Zealand Legal Pro formats. fession 1969-2003.

Endnotes

1. Bebb v Law Society [1914] 1 Ch 286. www.alrc.gov.au

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UPPER

By Senator Marise Payne*

t is sometimes suggested that parlia Iments would be better places if they had more female representation because women are perceived to be less combat ive, good listeners, superior relationship- builders and are thought to be inclusive consensus-builders.

I’m sure that if you were to put this hypothesis to a random group of women parliamentarians, you would get wildly varying responses. Some may hold strong views for example that militarism and trans-national ter rorism are a direct result of women being disenfranchised from the political process and even that women are intrinsically better ‘people’. Others may hold that women’s participation makes no particular difference to policy outcomes—but that women nonetheless should be better represented in pol itics logically, if for no other reason, because not to do so runs the risk of ignoring 50 per cent of the world’s capacity.

Much of the current research into leadership and managerial style has been carried out with a focus on how corporations are managed, with the results extrapolated to apply to the world of politics. From experience, I would argue strongly that findings from the corporate sector are not easily transferred to the political environment.

Mountains of analysis are testament to the fascination of researchers with the leadership style of women, and in fact whether there is one. On this the jury is still out. For example, business research conducted by Elke Dobner1 indicates that women do have a different management style from men. Men, it is said, tend to exert pressure from the top down, whereas more commonly women use teams to reach a common solution. She argues that the EQ (emotional quotient) is simply higher in women than in men.

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Other writers, including German technical standard, but if they do not possess superior interpersonal skills, political and business adviser overall company performance will not be maximised. Gertrud Hohler go so as far as to By their nature, parliamentarians tend to be social creatures, and so the say that men might focus more, vast majority of political men and women alike tend to be skilled commu however women also take the nicators and relationship-builders—certainly the successful ones. Modern periphery of the spectrum into political parties are acutely aware of the importance of team-building to account. The same research electoral success, and so there is a high commitment to this value. argues that men pursue goals, women look at the people who are The best illustrator in my area of activity of how this is so, is in the work to achieve them. In terms of com of Senate Committees. Much of a Senator’s workload revolves around the munication, Ms Hohler observes parliamentary committee process. Away from the spectacle of the parlia that men communicate strategi mentary chamber—an environment that often reflects and rewards cally, women communicate in order aggression and combativeness—senators from a range of political persua to engender trust. sions come together with the prevailing motivation of working for the advancement and good governance of the country. Certainly political Over the past several years there points can be scored, and often are, through the committee system, but on has been an abundance of research balance arriving at recommendations for improving government policy and projects comparing traditional legislation is far more often the norm. intelligence (IQ) with emotional intelligence (EQ) in the business Report recommendations are arrived at after the committee members world. The findings highlight that focus on the issues, meet with experts, read background materials, and emotional qualities such as men ask questions and listen to witnesses’ answers during public hearings. toring, relationship building and Over many years I can vouch that the final stage of the process—debate team building are increasingly within the committee on drafting a report—has little if anything to do sought by employers. The basic with the gender of committee members. It is the strength of arguments, argument is that businesses can and of course the political numbers just occasionally, that will win over the train up staff in the necessary committee, not the employment of ‘wiles and guile’.

Women in Parliament 1894 Women in South Australia are given the right to vote and stand for Parliament. 1899 Women in Western Australian are given the right to vote. The right to stand for election came in 1920. 1901 Women in SA and WA are able to vote at the first federal election because it was conducted under the electoral laws of the state. 1902 Women in New South Wales are given the right to vote. They were granted the right to stand for the Legislative Assembly in 1918 and the Legislative Council in 1926. 1902 All women (with the exception of Aboriginal women in some states) are given the right to vote for—and stand for election in—the Commonwealth Parliament. 1902 Women in Tasmania are given the right to vote (right to stand: 1921). 1905 Women in Queensland are given the right to vote (right to stand: 1915) 1908 Women in Victoria are given the right to vote (right to stand: 1923). 1921 Edith Cowan (Nationalist Party) becomes Australia’s first woman parliamentarian after being elected to the Legislative Assembly of the WA Parliament. some milestones

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Another argument that stretches across the sectors is And in political terms, particularly in the fraught that women try harder to prove their competence in world environment, it is apposite to cite the words of male-dominated industries. In his interview in a Burma’s Nobel Peace Laureate Aung San Suu Kyi: recent BRW article, Ron Walker says: Women do more work in analysing board papers than men. By their It is not the prerogative of men alone to own instinct, they want to make sure they don’t miss bring light to this world. Women—with anything.’2 In the same edition, Mark Leibler, a senior their capacity for compassion and self partner at the Melbourne law firm Arnold Bloch sacrifice, their courage and perseverance Leibler and a director of Coles Myer, says: ‘Some men —have done much to dissipate the dark think it’s their God-given right to sit on boards, ness of intolerance and hate A whereas it is more unusual for women, so they make a * Senator the Hon Marise Payne is a Liberal better fist of it.’ 3 Party Senator for New South Wales. She plays an active role in the Senate and is It would certainly be interesting to know if these involved in a range of legislative and policy observations have been reinforced by any research. committees which impact on international My own casual observations on the effectiveness of affairs, social justice, national security and IT. parliamentarians, looking at political approach, work style, staff management, level of activity, preparation for meetings and so on, owes little to gender, but much Endnotes to enthusiasm, commitment, engagement and from 1. E Dobner, Frauen in Fiihrungspositionen [How Women time to time, ambition. Lead] (2001) Sauer, Heidelberg. 2. A Gome and E Ross, ‘The 20 most powerful women in Aus Most compellingly though, I return to the argument tralian business’, (2002) 24 (39) Business Review Weekly 50. that any endeavour, political or otherwise, that does 3. Ibid. not encourage and actively pursue the involvement of 4. Aung San Suu Kyi (Speech delivered by videotape to NGO women denies itself the benefit of 50 per cent of the Forum on Women, Beijing, 31 August 1995). community’s intellect, perspective and contribution.

1943 Dame Enid Lyons (United Party of Australia) is the first woman to enter the Australian House of Representatives after being elected to the federal seat of Darwin (Tasmania). On the same day, Senator Dorothy Tangey (Australian Labor Party) becomes the first woman in the Senate, representing the State of Western Australia. 1962 The Commonwealth Electoral Act 1962 extends federal enfranchisement to Aborigines, without the necessity that they have the right to vote at state level. 1986 Joan Child (Australian Labor Party) becomes the first woman to be Speaker of the House of Representatives. 1986 Senator Janine Haines becomes the first woman to lead an Australian political party (the Australian Democrats). 1989 Rosemary Follett (Australian Labor Party) becomes the first female head of an Australian government when she becomes Chief Minister of the Australian Capital Territory. 1990 Dr Carmen Lawrence (Australian Labor Party) becomes the first woman Premier of Australia (Western Australia), followed later in the year by Joan Kirner (Australian Labor Party) in Victoria. 1996 Senator Margaret Reid (Liberal Party) becomes the first woman elected as President of the Senate. ♦ 7 some mi lestones

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LOWER

By Julia Gillard MP* g— rom time to time, the national media becomes obsessed about the plight of women in politics. Interestingly, this obsession tends to occur when the national press gallery has a woman in its sights, either tearing her down or build ing her up as a prelude to tearing her down.

This media cycle is driven by the fact that women are still viewed as unusual in politics. The end to this cycle will only come when women are equally represented in our parliaments. Indeed, we need to strive for a time when it is so usual for women to be in parliament that no one feels the need to comment on it.

Much more needs to be done to ensure women and men are equally repre sented in our parliaments. In addition, much needs to be done to ensure that women who enter our parliaments do not have stereotypes limit the roles they can play. Equality of representation means women in parlia ment must be taken seriously if they focus on defence or finance or trade as well as if they focus on child care or social security policy.

It is important that the image women paint for themselves, and the image painted of women in the media, is as equally inclusive of the potential for a female treasurer as for a female family services minister.

Women are capable of doing anything and yet there remains a particular style about the way in which women are treated. It is a hard job being a parliamentarian, a hard job for anyone, man or woman, but with an extra

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degree of difficulty for women given the historic male be recognised as every bit as likely to be capable, sea definition of the job and the power structures. soned, experienced and tough as their male colleagues.

We should be concerned about and support our women While much needs to be done to cut this media cycle, parliamentarians. But it struck me when I was first and to achieve true equality for women in our parlia elected that, particularly in media commentary, there ments, a quick review of the statistics shows women in is a tendency for this culture of concern to become one law are actually doing it harder. of condescension. Currently in federal Parliament there are 60 women, As an incoming Labor MP you get the delight of being meaning women comprise 26.5 per cent of the Parlia written up by newspaper columnists who snapshot you ment. The ALP disproportionately contributes to this and other incoming MPs and muse about your total with 33.7 per cent of its total number of federal prospects for the future. In that coverage it always parliamentarians being women. struck me that the way in which women were described differed markedly from the way in which In Victoria, there are 40 women state parliamentari men were described. A woman was likely to be ans, equalling 30 per cent of the total. Once again, the described as ‘young’ when a man of the same age ALP is doing better, contributing 36 women to the would not be. The condescension would also arise in total. The story is even better at Cabinet level with the way in which past careers were summarised in seven of Victoria’s 20 Ministers being women. these articles. The careers of the incoming men were appraised and described in terms like ‘seasoned’, ‘expe Let’s compare these figures with comparable figures rienced’ and the like. Yet when women were written for women in the law. Of the 170 Supreme Court up, irrespective of their past careers, it is with a sort of judges around Australia, only 22 are women, which breathless ‘will they cope in this tough world’ kind of equals 12.94 per cent. Victoria is slightly behind on spin. 11.43 per cent but is way ahead of New South Wales with only nine per cent. Tasmania and the ACT have In dealing with this issue we have to be careful not to no women Supreme Court judges. As we all know, throw the baby out with the bath water. It is good there are no women on the High Court. that there is some media and party recognition that it is tougher for women. But there is a creeping conde Around the nation there are 775 Queen’s or Senior scension in this reporting which must be understood Council. Of these, only 5.8 per cent are women. Victo and resisted. Women in parliament are not some polit ria is slightly in front with 7.85 per cent being women. ical version of little Alice who, having gone through the looking glass, now find themselves in a strange Should we be alarmed by these figures? I believe we world. should. Clearly there are all sorts of explanations that can be proffered for these results. While women now Women, like men, come to parliament at all sorts of outnumber men as law school graduates, this is a rela ages with all sorts of skills and experiences behind tively recent phenomenon. Consequently, it will take them. Some individuals will find it tougher than time for the highest positions in law to be filled by others and we would expect that sort of diversity. women in equal numbers. I am sure many would say Women in parliament should not be judged as if they it is sufficient to stand back and let time even up the are in some sort of concessional class. Women should scoreboard.

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suffers from a male stereotype that no longer reflects But will time heal the gender gap in law? In my view, reality, but from male parliamentarians and men the gender gap in politics has been closing more aspiring to be parliamentarians who worried about the quickly than it otherwise would because particular personal cost they could bear as a result of such a rule policies were adopted by Labor to address the issue. change. This progress made for women in politics largely stems

from the cultural shift within the Labor Party signi Following the adoption of the affirmative action rule fied by the passage of the affirmative action rule change by Victoria, which applied to preselections for through National Conference in 1994. Victorian State Parliament and federal Parliament, the 1994 National Conference of the Party agreed to Affirmative action for multi-member internal party adopt a similar set of affirmative action rules. This committees has been a feature of the party’s internal rule has seen Labor around the country ensure that structure since 1981. While successful at generating women are preselected for at least 35 per cent of increased female involvement in party committees, the winnable seats. There is now agreement to increase guarantee of at least one-third membership of internal the percentage to 40 per cent. The affirmative action party committees did not, in and of itself, solve the rule has also affected the quality of the seats for which problem of getting more women into parliament. women are preselected, with six of Labor’s 20 safest

With Labor state governments providing Australia’s federal seats now held by women. first two female Premiers, Joan Kirner in Victoria and The ALP is Australia’s oldest political party and could Carmen Lawrence in Western Australia, it was easy no doubt claim to carry almost as much of the male for a period in the 1980s to think that women were baggage of history as the law does. However, for making steady inroads into the parliamentary sphere Labor the affirmative action rule changed our culture and that this trend would continue. Indeed, many in and changed it quickly. the law might believe this now.

Clearly, you cannot pick up a mechanism that has In Victoria, in particular, the shattering defeat of 1992 worked in one context and laud it as the solution to a exploded that illusion. The truth was women had gender gap in a completely different context. But made inroads but had tended to be clustered in mar maybe those who are legal advocates and adjudicators ginal seats. As a result, when Labor hit its bedrock can look to Australia’s law makers for proof that vote, few women were left. The 1992 election defeat changing women’s representation requires specific poli halved the number of women in Victoria’s Labor cies and efforts, not just a hope that effluxion of time Caucus. Federally, a similar crunch point was hit will bring change gently. after the 1996 election, with the number of Labor women in the House of Representatives cut by more * Julia Gillard is the Shadow Minister for than half to a mere four parliamentarians. Health and the Member for Lalor.

As a result of the 1992 defeat, Victorian women and in particular, Joan Kirner, organised an extensive cam paign for an affirmative action rule that would guar antee women a specified percentage of winnable seats. Interestingly, the greatest opposition to these propos als came not from the trade union movement, which

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Equality before the law (ALRC 67 and 69)

By Jonathan Dobinson*

n I 994, the ALRC completed its inquiry Iinto equality before the law for women with the release of the report Equality

before the law: Women’s equality (ALRC 69 Part II). The ALRC report identified a number of issues that hinder women’s equal ity before the law, including the extent of women’s participation in the legal profession. This is a summary of the report and its implementation to date.

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The inquiry commenced in February 1993 as part of In 1994, women made up 50 per cent of law school the then federal government’s New National Agenda graduates, and 25 per cent of the legal profession as a for Women. The inquiry conducted extensive consulta whole. However, the ALRC found that women leave tions, receiving more than 600 submissions—including the profession at a much higher rate than men and are hearing submissions in person in every State and clustered in its lower ranks. The ALRC report exam mainland Territory and Norfolk Island. The key ined the reasons for the situation of women lawyers, issues identified for consideration were women’s access including discrimination, sexual harassment, and to justice; women’s legal rights in family life and rela structural and cultural barriers. The ALRC noted that tionships; legal rights to social security; the position of equality for women cannot be achieved using anti-dis women in employment and in the unpaid workforce; crimination and affirmative action legislation alone. and media portrayals of women. Submissions received by the inquiry called for profes sional associations to become more actively involved in A number of major recommendations came out of the changing the work practices and culture of the profes inquiry, including: the passage of an Equality Act- sion. The ALRC recommended that professional asso establishing national standards for the administration ciations should: of justice that enshrine the principle of equality; and the establishment of a National Women’s Justice pro • play an educative role on the obligations of legal gram to coordinate reforms necessary to ensure firms under the federal Sex Discrimination Act; women’s equality before the law. Of particular rele • collect information on and monitor the career pat vance to this issue of Reform was the ALRC’s finding terns and experiences of women lawyers; that, for gender bias in the law to be corrected and lawyers to become more responsive to women’s needs, • encourage increased compliance with affirmative there must be training for the legal profession to action obligations; understand issues relating to women. • promote women’s full and equal participation in The ALRC found that legal education has a critical their governing bodies, councils and committees; role in helping future lawyers detect and eradicate • develop codes of conduct dealing with sex discrimi gender bias from the common law and statutes. nation, including sexual harassment, in consulta Therefore, a number of the ALRC’s final recommenda tion with the federal Sex Discrimination Commis tions were aimed at tertiary legal education. These sioner; recommendations had two components: the introduc tion of feminist legal theory as a subject in the law • develop model equal employment policies and pro curriculum and the integration of the experiences of mote their benefits to the profession; women into the content of courses. • provide employers with appropriate interviewing After the completion of an undergraduate law degree, guidelines; and a graduate generally is required to undertake practical • establish complaint mechanisms—for example, legal training or articles to be eligible for admission to through the appointment of equal opportunity offi legal practice in Australia. The ALRC identified a cers or senior counsellors. number of strategies that could be implemented at this stage of legal education to assist in combating gender Submissions received by the ALRC inquiry commented bias in the law, including that: all practical legal train on the relative absence of women in the legal system. ing should be required to include content on the expe Women felt excluded by the all-male environment of riences and perspectives of women; and (in practical the law, especially in the judiciary. The ALRC’s legal training courses using simulated training) hypo research at the time found that men held over 90 per thetical cases and trials should avoid the use of gender cent of all federal judicial offices. specific language and avoid stereotyping the roles of women and men. Parallel recommendations focussed The ALRC noted that more women judges are needed on continuing legal education1 and specialist accredita to increase public confidence in the judiciary—the com tion.2 munity cannot be expected to respect a judiciary that

Reform ssue 83 2003 ~ Page 38 Women in the law is drawn from a narrow sector of society and does not * Jonathan Dobinson in the ALRC’s Manager, represent the diversity of the community. Further, Policy and Secretariat. there is also the potential of women judges to bring dif ferent perspectives, experiences and methods to their Endnotes work. Women judges may be able to help eliminate gender bias in the law by using their understanding of 1. CLE is offered to practitioners in all jurisdictions. It is education undertaken after admission to practice and not women’s experiences in their decision making. part of a degree. Some Australian jurisdictions require prac titioners to undertake a number of hours of CLE annually in The ALRC recommended that a body should be estab order to maintain a current practising certificate. lished to advise the Attorney-General on suitable can 2. Accreditation is a procedure by which a legal practitioner, didates for judicial office. The ALRC stated that the with expertise in a particular field, may apply to the profes advantages of this model would be the independence sional association to become formally recognised as a special ist in that area. from the political process; the provision of a forum for 3. At the end of June 1999, 73.3 per cent of all legal practi increased consultation with the community; and the tioners were male. This is despite the fact that approxi identification of candidates who may not otherwise mately equal numbers of males and females graduate from have been considered—promoting a judiciary more law school. The gender division is particularly pronounced in reflective of the diversity of Australian society. The specific parts of the legal profession. For example, 84.1 per cent of all solicitors who were sole practitioners or partners ALRC stated that membership of the advisory commis were male and 89.3 per cent of all barristers were male: Law sion should reflect the ethnic and cultural makeup of Council of Australia 2010 A Discussion Paper: Challenges for the community, with a balance of women and men. the Legal Profession, September 2001. See also Fergus Shiel “Old boys’ bar code doesn’t scan well on gender equality’ The The ALRC also recommended that selection criteria for Age 22 August 2003, 1; Kate Marshall ‘Highest Courts Still Lack Women’ The Australian Financial Review, 31 May 2002; judicial appointment should be identified and publi George Williams ‘Diversity and Australia’s highest court’ The cised; and that federal judges should be able to be Australian Financial Review, 22 August 2003. appointed on either a full-time or part-time basis—to 4. Law Society of New South Wales, After Ada: A New Prece enable women and men to take proper account of their dent for Women in the Law, 29 October 2002, 19. family responsibilities.

Although many of the recommendations made by the ALRC were accepted by the then federal government and have been implemented, men continue to domi nate the legal services industry—especially in the upper reaches of the profession and the judiciary.3 The report’s findings were recently echoed in a paper published by the NSW Law Society:

The [legal] profession is failing to recog nise that there are flaws in the profession that mitigate against women securing senior positions within it. Further, the profession also needs to recognise that it is incumbent on the profession to identify and fix the flaws or risk losing a signifi cant segment of their profession. As the professional association, the Law Society has a leadership role to assume to assist the profession to work through these com plex issues to ensure substantive and sus tainable change,4

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# 82: National and international security (Autumn 2003) # 81: Older People and the Law (Spring 2002) # 80: Customary Law (Autumn 2002) # 79: The Challenge of the New Genetics (Spring 2001) # 78: Federalism and Regionalism (Autumn 2001) # 77: On the Bench: Perspectives on Judging (Spring 2000) # 76: Globalisation and Law Reform (Autumn 2000) # 75: Arrivals & Departures: Issues in Immigration Law (Spring 1999) # 73: The Future for Community Justice (Spring 1998) D,us postage and handling orp

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Why regulate

n May 2003, the report, Essentially Yours: The IProtection of Human Genetic Information in Australia (ALRC 96), was tabled in federal Parlia ment. The report was co-authored by the Aus tralian Law Reform Commission (ALRC) and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council (NHMRC). Trudo Lemmons* reviewed some of the report’s findings and recommendations as they relate to clinical genetic testing and research.

After two years of inquiry, the ALRC and AHEC launched in 2003 their report on the protection of human genetic information in Australia. Not unlike other reports in this area, the title—Essentially Yours—already evokes the idea that genetic information is indeed highly personal and inti mate information. The use of the word ‘essentially’ also points, however, also in a clever way to the fact that, even if genetic data falls very much within the domain of privacy, personal rights over this information should not be absolute. A person’s genes are essentially something that ‘belongs’ to her or him, that reveals intimate characteristics of the person, but there are also other aspects that bring it outside of the personal realm. Genetic infor mation is fundamentally shared with family members; it may tell us some thing about ‘shared’ ethnic or racial background; and there may be circum stances, such as in the criminal law context, where a person’s right to pri vacy may have to be limited for reasons of public interest.

The balanced and sensible approach conveyed by the title is found through out the two-volume report and is a reflection of the impressively thorough

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background work on which it is issues will emerge and that an on-going review of these developments is based. While the October 2001 warranted. For that reason, the report recommends the establishment of Issues Paper, Protection of Human a Human Genetics Commission of Australia, which would have an advi Genetic Information (IP 26), pro sory function as well as a role in the context of policy making. I am vided an in-depth review of the lit inclined to agree with this recommendation, having been involved in the erature, with more extensive refer drafting of a similar report as a member of an advisory committee for the ences to the literature and foreign Ontario government, which led to the establishment of a similar advisory jurisdictions, the final report has committee in this Canadian province.2 I also agree to some extent with benefited from an impressive set of the warning of the report against the introduction of rigid legal structures interviews, discussions, and sub that would not be amenable to change. missions by individual scholars, various organisations and inter ested citizens from all over the ...the final report has benefited from an impressive world. Members of the team set of interviews, discussions, and submissions by involved in this report have also individual scholars, various organisations and been travelling extensively and interested citizens from all over the world. gathered opinions from various experts in the field. The way in which the authors of the report But I would like to emphasise here one of the major reasons why the have managed to integrate these implementation of a solid regulatory review structure in the context of contributions is remarkable. It genetics requires more than the establishment of an advisory commission. gives the report not only wider A general advisory commission on genetics can play a vital role in promot public legitimacy, but it also makes ing debate, in exploring new ethical, social and legal issues, and in making it a very useful background docu important policy recommendations. A more stringent regulatory structure ment for anyone interested in is needed, however, to ensure appropriate public control over a technology these issues. that can contribute to improving health care, but that also has the poten Various commentators have argued tial of impacting significantly on societal values and could lead to stigmati that genetic information shares sation of, and discrimination against, individual people, their families and many characteristics with other their communities. forms of health information and In an Ontario report that we are currently finalising with some Canadian that increasingly they will be inte colleagues, I framed the crucial questions that a regulatory agency should grated in everyday medical prac ask as follows: tice.1 A regulatory and legal response to the new genetics, • Who can conduct genetic testing? therefore, has to be solidly inte grated in legal and regulatory • Who can order it? regimes dealing with the use of • For what purpose can it be done? and access to more common forms of medical information. Following • What is the impact of this testing? this approach, the report devotes • Who has access to the information gained by the test? much attention to how these regimes can handle various specific • How will the information be kept, and for how long? legal, ethical and social concerns raised by genetics, and whether These questions should be at the core of the review of any form of genetic changes are warranted. But the testing before approval is given for its use. The first four questions refer report also recognises that the fast to issues of both value and validity. They also relate to genetic testing pace of change in genetic knowl undertaken in the context of research as well as genetic testing under edge makes it likely that new taken for clinical or other purposes such as criminal prosecution, employ-

Reform Issue 83 2003 - Page 42 Women in the law memt or immigration. The latter questions deal more samples combine all of these characteristics and con witlh the issue of data protection and privacy. tain a truly staggering amount of intimate informa tion. Moreover, the technological advances that But if genetic information should not be fundamentally accompany its development are a source of concern: distinguished from other health information, one computer technology is one of the cornerstones of the migjht ask, why recommend a regulatory review and genomics revolution, but this technology can also be approval structure in the context of genetics? Why not used to easily transfer, trace, analyse and interconnect sinqply rely on existing legal and regulatory regimes? sensitive health information.3 And finally, genetic Thrcee immediate reasons can be pointed out, which testing and the use of genetic information have to be are largely also recognised in the report. First of all, placed in a larger social, cultural and historical con the protection of personal health information is still text. The concerns we may have about the unregu the focus of considerable debate, and various countries lated use of such technologies are intimately connected are : still working on how to improve the protection of to the particular societal and cultural context in which senssitive health information and the control over its they are applied. These technologies are being devel use through privacy and human rights legislation and oped in a way that may escape detailed societal debate thrcwugh an amelioration of research governance sys- and they may, at the same time, have a profound temas. If there are overall weaknesses in the system, impact on societal values. theyy also have to be pointed out in the context of geneetics, as the Australian report very aptly does. ...computer technology...can also Secoondly, in some areas, genetic testing or the use of be used to easily transfer, trace, geneetic technology escapes the governance mechanisms analyse and interconnect sensitive thatt have been put in place for other medical technolo health information... gies.;. For example, in several countries, including Aus tralia and Canada, some forms of genetic research in the i private sector do not fit the categories of research The history of eugenics, in particular, functions as a thatt are covered by existing forms of research gover reminder of how medical knowledge and technology nance. Genetic research in the private sector is not can develop within a given societal and cultural con covesred by research regulations related to clinical text and not only reaffirm, but also become a powerful trialls for drugs or medical devices, and it is not subject force in the promotion of values which, in retrospect, to tbhe research ethics guidelines of the funding agen seem highly questionable. Although much effort has cies,, in Australia the National Statement issued by the gone into distinguishing the new genetics from its NHAMRC. Here again, the Australian report puts its ‘eugenic’ counterpart, the difference between the two, fingeers on many of the problems. The report contains as Allen Buchanan, Dan W Brock, Norman Daniels one (of the most detailed discussions of the research and Daniel Wikler have pointed out, is mainly one of revieew system in Australia, and how it relates to degree and context.4 Genetic testing and potential dis geneetic research. It points out how certain forms of criminatory use of genetic information do convey and geneetic research fall outside of the scope of the reaffirm values about what constitutes normalcy and Natidonal Statement and it highlights the need to look about what traits ought to be avoided. An in-depth into ( an all-encompassing more rigorous review system. discussion of these values exceeds the scope of this article, but it is important to emphasise that new bio Thircdly, although genetic information shares many medical technologies are not just the result of neutral charracteristics with other forms of health information, scientific advances. They are the result of a specific I beHieve that there are reasons for increased concern desire for control and they re-emphasise values. Mem abouit potential abuse of genetic testing and genetic bers of the disability community have argued, for inforrmation. While individual characteristics of genet example, that offering pre-natal genetic testing ics (ssuch as its familial character, its potential links to expresses the idea that certain ‘disabled’ lives are to be ethnnic groups, and its predictive nature) can also be avoided and that this devalues their own lives. Our founad in other forms of health information, genetic culturally determined drive for control over our health

ssue 83 2003 ~ Page 43 Reform Women in the law and the health of our offspring may thus clash with weighing the validity and value of new technologies the interests of others and impact on important social and therapies, and for determining whether they values. It may increase the pressure towards genetic should be funded through the health care system. It is testing. In a recent article, Deborah Heilman explores therefore crucial that the research process be indepen why there are calls for genetic-specific regulations. dent, transparent and reliable and not biased by a She stresses that it is important to look at what commercialisation agenda. Furthermore, genetic genetic discrimination ‘expresses’ in a particular social research creates ‘informational risks’ and a solid evalu and cultural context in order to determine whether a ation of the balance between these risks and the poten specific genetic-focussed protective regime is needed; tial benefits of this research is necessary to protect and she also invokes the history of eugenics.5 respect research subjects and their families. As already pointed out, the report joins the chorus of While the social and cultural context is now very dif those who have pointed to serious deficiencies in the ferent from the time of the eugenic movement, other existing review system based on research ethics review contextual factors are a reason to support strict regula boards (referred to as Human Research Ethics Com tion. I am thinking here, in particular, of the commer mittees (HREC) in Australia, and Research Ethics cial context in which genetic technologies are being Boards (REB) in Canada). As in other countries, there developed and promoted. The commercialisation of is little or no regulatory oversight over these boards, genetics plays out at different levels: it affects genetic there are no clear professional standards and there is research, genetic databases, the development and pro a lack of expertise and training among the members of motion of genetic testing, whether pre-natal testing, many of the committees. In the context of growing clinical testing, or testing for employment or insurance commercialisation, it can be questioned if these boards purposes. This is not to say that the private interests will be able to provide solid and independent review. of biotechnology compa The report makes impor nies cannot contribute to tant recommendations the public good. Private with respect to improved Private interests can stimulate research interests can stimulate training (which is partic and contribute positively to improving research and contribute ularly important in new positively to improving health care, but they frequently also areas such as genetics), health care, but they fre conflict with public interests. accreditation, and the quently also conflict with inclusion of private public interests. Com research under the exist mercial interests cur ing governance system. rently push private companies to bank genetic mater It is somewhat surprising that it does not discuss in ial of individuals, which raises issues about adequate more detail growing problems of conflict of interests of compensation, ownership of genetic material, and these ethics committees. This is, certainly in North potential financial impediments on access to genetic America, one of the major challenges of the research technologies developed for private gain. Private inter review system.6 In an increasingly commercial envi ests can help to stimulate certain forms of research, ronment, research review boards have become more but generally only such research that leads to mar vulnerable than ever to conflict of interest situations.7 ketable products. Diseases affecting developing coun Within academic institutions, members of the review tries and the poor will receive little attention, and boards need to evaluate conflicts of colleagues and research will focus on treatment, rather than preven hierarchical superiors, but they also have to make tion of disease, or on technology-based health care, decisions that may impact significantly on the finan rather than on public health measures based on, say, cial interests of their academic institutions. Moreover, nutrition and hygiene. commercial review boards have taken a large share of the ‘research review market’, while they do not fulfil, There is also increasing concern about the impact of in my view, basic requirements of administrative inde commercialisation on the integrity of the scientific pendence. Since medical research has become a busi process itself. Scientific research provides the basis for ness, it needs an adequate regulatory system and

Reform ssue 83 2003 ~ Page 44 Women in the law solidly independent review boards to counterbalance penetrating question indicates how important it will be the commercial interests. to have a review system that remains critical of the values expressed through approval or disapproval of Once genetic technologies are developed, regulatory genetic testing and that integrates solid human rights review is needed to determine their use. Some forms standards in the evaluation process. of genetic testing may be valuable in the context of clinical care, while marketing these tests for other pur Although genetics creates very different risks than poses could be unacceptable. Without regulation, com other medical technologies, some of which clearly touch mercial interests could create markets for predictive on societal values, it seems inappropriate to have the genetic tests that are stigmatising and discriminatory, values expressed in genetic technologies reinforced and or simply invade human dignity. This is already a promoted through marketing strategies. A regulatory concern. Some US-based companies currently invite review of these new technologies should thus not only parents through worldwide web advertisements to involve a control of the validity of the scientific data submit clothing samples of their adolescent children to and of the quality standards of the laboratories con detect whether they engage in premarital sex. If mar ducting the testing, but also a detailed review of their kets for such tests can be created, surely we will see impact on societal values. As with drugs and medical commercial campaigns trying to sell future parents the devices, this review should also lead to a determina idea of prenatal testing for various behavioural condi tion of the parameters of their use. tions, even in the absence of solid scientific data sup porting the tests. Do we really want to see a commer The value of the Australian report lies in the detailed cial promotion of prenatal testing for Down syndrome, discussion of the various concerns I have discussed for short stature, or in the future perhaps even ‘gay here, as well as many others concerns, and in the genes’? And should we allow biotech companies to detailed analysis of how the Australian regulatory develop an aggressive campaign pushing employers system is currently apt to deal with them. It does dis and insurers to use highly stigmatising genetic tests? cuss these issues in much detail and deals with them A regulatory regime should at least enable an indepen separately. In addition, the report makes important dent analysis of the implications of allowing certain and balanced recommendations to improve, for exam forms of genetic testing. Most countries currently have ple, the research review system and privacy protection some form of regulatory control over drugs and med in the context of genetics. It also, at times, makes ical devices in place. Although many of these review strong recommendations that go in the direction of a systems are being criticised, they evaluate to some strict regulatory approach. When discussing genetic extent the efficacy and safety of products to determine testing, it recommends, for example, that a criminal whether they should be allowed into the market. A law provision be introduced that would make it a crim regulatory review system should allow us to evaluate inal offence to conduct genetic testing without consent. the risks involved with new genetic technologies. The report also contains a strong argument in favour of a new Human Genetics Commission of Australia. It has to be recognised, however, that regulating This report points to various important policy roles for genetic technologies will also create important social this type of committee. and moral responsibilities. While I strongly believe that it would be unwise to leave the development of While, in my view, a more stringent regulatory struc genetic technologies and its use up to market forces, I ture is needed, the strength of an official report often also realise that there is something uncomfortable lies in its realistic character and balance. While it is about the idea of governmental review and ‘approval’ easy to write a critical academic commentary in isola of genetic testing. When discussing the need for regu tion, it may be more realistic, however, in the Aus lating the use of genetic testing and genetic informa tralian political context, to introduce a strong advisory tion with a journalist, she asked what the difference system. It certainly will provide flexibility and allow a was between such a governmental review committee further exploration of the benefits of new genetic and the advisory committees that were part of eugenic research. As in Canada, constitutional divisions of governmental policies in the previous century. This power may hamper attempts to introduce a federal leg-

ssue 83 2003 ~ Page 45 Reform Women in the a w islative scheme to regulate Member (2003-2004), School research. But I believe it is crucial of Social Science, Institute for that research review is removed Advanced Studies, Princeton. from those with a vested interest in the—increasingly profitable— Endnotes research. Combining the mandate of promoting research, and often 1. For example, TH Murray, ‘Genetic Exceptionalism and ‘Future Diaries’: Is also the mandate of promoting eco Genetic Information Different from nomic development, with that of Other Medical Information?’ in MA protecting subjects seems unwise Rothstein, ed, Genetic Secrets: Protect in the context of the growing com ing Privacy and Confidentiality in the Genetic Era (1997), Yale University mercialisation of research. Press, New Haven, 60; LO Gostin & JG Hodge (Jr), ‘Genetic Privacy and the The future will tell us whether the Law: An End to Genetics Exceptional development of a Human Genetics ism’ (1999) 40 Jurimetrics, 21-58; T Commission will be sufficient to Lemmens, ‘Selective Justice, Genetic Discrimination and Insurance: Should control some of the risks created by we single out our genes in our laws?’ the same technology. The report (2000) 45 McGill Law Journal 347—412. should be taken as a basis by regu 2. Genetic Services in Ontario: Map latory authorities, both at the fed ping the Future. (Report of the Provin eral and state level, to reflect fur cial Advisory Committee on New Predic tive Genetic Technologies), 30 November ther on what can be done to 2001 (2002) Queen’s Printer for improve the regulatory oversight. Ontario, Toronto. The fact that the report’s very criti 3. T Lemmens & L Austin, ‘The Chal cal analysis of particular issues is lenges of Regulating the Use of Genetic often not followed by a strong argu Information’ (2001) 2(3) ISUMA, Cana dian Journal of Policy Research, 26—37 ment for stringent regulatory con 4. A Buchanan et al, From Chance to trol should not be used as an Choice: Genetics and Justice (2000) excuse by various governments to Cambridge University Press, Cam rely on self-regulation and regula bridge. tion by professional organisations. 5. D. Heilman, ‘What makes genetic discrimination exceptional?’ (2003) 29 As I have tried to indicate briefly Am J L & Med 77-116. here, the potential impact of new 6. See, for example, the attention paid genetic technologies should be to this issue in: Committee on Assess analysed in its social, cultural and ing the System for Protecting Human historical context. The commercial Research Participants, Institute of Medicine, Responsible Research: A Sys interest in genetic research and tems Approach to Protecting Research genetic technologies, and the Participants, (2003) National Acade values raised by its applications, mics Press, Washington DC. are a sufficient reason to do more. 7. T Lemmens & B Freedman, ‘Ethics The Australian report is a very review for sale? Conflicts of interest and Commercial Research Ethics good first step. It is not an end Review Boards’, (2000) 78(4) Milbank point. Quarterly 547-584.

*Trudo Lemmens, Lie Jur, LLM, DCL Assistant Professor, Faculty of Law, University of Toronto.

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Essentially Yours

A REVIEW

£/ Dr Thomas H Murray* ong, long ago, in the infancy of the LHuman Genome Project—that is, in the early 1990s — people began to ask who might be interested in the avalanche of genetic information expected to follow. Individuals, certainly, would want to know whether their genes might betray them. That assumption turned out not to be universally true—many people at risk of Huntington’s Disease decided that they preferred a life of hopeful uncertainty to one with a 50-S0 chance of a dire near certainty. Who else might have an inter est in knowing the intimate details coiled within one’s chromosomes!

As a member of the US Human Genome Project’s first Ethical, Legal and Social Issues Working Group—ELSI for short—I mulled over this very question and listened to a great many thoughtful people, experts and con cerned citizens, describe their hopes and fears. The most frequent and urgent worry, we quickly learned, was that third parties for whom the individual’s well being was not the primary concern would seek genetic information and use it for their own purposes. Insurers and employers came most readily to mind as the likely villains.

Scientists distinguish between those stretches of our genomes that are bio logically active—so-called coding and regulatory regions—and those much

ssue 83 2003 ~ Page 47 Reform Women in the law more plentiful regions that have no the people killed in New York City’s World Trade Towers on 11 September currently known biological func 2001. Matches can be made even in cases in which we have no DNA sam tion. Interestingly, both the bio ples from the missing individual if there are surviving biological logically active and the inactive relatives—parents or children, for example. portions of the genome have pro voked concern. Insurers and Because we share half of our genes with each of our biological parents as employers would be curious about well as our children, we can often tell with reasonable certainty whether the former, that is, about poten two people are genetically related. Billboards spotted in the US asked in tially prophetic genes that might the form of a telephone number an awkward and potentially painful ques foretell, however dimly and uncer tion: T-800-WHO’STHEDAD?’ DNA fingerprinting has become a tainly, what diseases we may frequent—and at times grievously destructive—tool in legal battles over develop that would shorten our divorce settlements and child support. Those same DNA fingerprints can lives or send us to physicians and show up in disputes over inheritance rights to estates, immigration cases, hospitals. The acolytes of genetic and, in a painful reminder of the legacy of American slavery, whether prophecy often fail to mention how descendants of Sally Hemmings, a slave owned by Thomas Jefferson, cloudy and uncertain these predic ought to be admitted to membership in an association of Jefferson’s tions are in practice—more about descendants. that later. Australians are now wrestling with how, if at all, to use genetic informa Why would anyone be interested in tion of this sort to help decide whether someone should be given the status genetic information that is, by defi of Aboriginal or Torres Strait Islander. This turns out to be much more nition, biologically meaningless? complicated scientifically, politically, and symbolically than deciding Only because it can become swept whether two people are related. up in the human dramas of blood, family and betrayal, money, lust The Australian Law Reform Commission (ALRC) working with the Aus and love. That’s why. tralian Health Ethics Committee (AHEC) of the National Health and Med ical Research Council, deals with all of these questions (except for the Jef For you see, from that meaningless ferson descendants dispute) and many more in its report, Essentially mass of so-called ‘junk’ DNA, sci Yours: The Protection of Human Genetic Information in Australia (ALRC entists have cobbled together sets 96). The two-volume report is encyclopaedic in its coverage of the issues of signposts that yield a genetic raised by genetic information, and nearly encyclopaedic in its heft, run ‘fingerprint’—a distinctive genetic ning to more than 1,100 pages. It explains what genetic testing is, how it signature that can be used to is regulated, how genetic samples and information are gathered and used determine who was the source of in health care and research, and why they are collected and stored in data whatever DNA is at hand. Foren bases and tissue repositories. A US Presidential bioethics commission, on sic scientists use DNA fingerprint which I served in the late 1990s, wondered how many specimens of human ing to link suspects to crimes such biological materials potentially useful for genetic research there were. A as sexual assaults. The most mas quick survey uncovered more than 280 million such specimens in the US sive matching task undertaken alone, with the number growing by millions each year. thus far with DNA fingerprinting is the effort to identify the Quite a few national, international and professional bodies have bitten off remains, often in the form of tiny, small chunks of the massive challenge that is genetic information and severely damaged fragments, of have issued reports of variable usefulness and merit. I know of no notable

Reform Issue 83 2003 ~ Page 48 Women in the law body that has attempted to cover it all within a single trying to purchase life, disability income, or other poli report. Despite the difficulties the quest for compre cies. The disadvantage of this approach is that it hensiveness must have posed, the ALRC and AHEC obscures the differences in what one might call the have done an extraordinarily fine job of explaining the moral purposes of the different kinds of insurance. science, identifying what is important for the people of Australia, and offering sensible advice. They have Disability income insurance, for example, can spare a advice, it should be noted, for many parties, not only family from the financial devastation that would other for those who make and interpret the laws. The report wise result from a disability that prevents the insured offers recommendations for professional bodies, indus from earning a living. Bad enough that the individual try trade associations and governmental advisory com and his or her family has to learn to deal with disabil mittees as well. Consider a few highlights from the ity and its economic and social consequences; with dis sections regarding discrimination in insurance and ability income insurance, at least a portion of the indi employment. vidual’s salary is replaced. Term life insurance can serve multiple functions, but the most morally com The use of genetic information in health insurance pelling one is throwing a financial lifeline to one’s sur worried people in the US much more than genetic vivors. Attending to these moral purposes illuminates information’s impact on the anxiety provoked by any other type of insur hints that insurance ance. Among prosperous Billboards spotted in the US asked companies are using or nations, only the US fails in the form of a telephone number might want to use to provide some basic an awkward and potentially painful genetic information. form of health insurance Despite the report’s question: * I-800-WHO’STHEDAD?’ system for all its citizens. glossing over such moral Insurance is a method matters, the careful for spreading risks for evaluation of evidence, losses uncertain in their timing, magnitude, or both. the sound and thoughtful analysis of arguments and Some losses are uncertain both as to whether and alternatives, and the sage recommendations that run when they occur: I may get cancer and it may kill. throughout the report show that not much was lost in But no one, least of all me, knows if I will ever get the approach chosen by the authors. Then again, this cancer. Other risks are uncertain only as to their would not be much of a review if it could find nothing timing: I will die, I just don’t know when. The latter at all to complain about. uncertainty is the rationale behind life insurance. The former pair of uncertainties underlies health, disability So far, insurers have made little use of genetic infor income, trauma, sickness and accident, and, to a mation per se. They have long used family history to degree, travel insurance. evaluate the risks an applicant may have. The record of an applicant’s family’s encounters with disease and ALRC 96 does not single out health insurance, I early death reflects in some measure the applicant’s assume because the Catch-22 at the heart of insurance inherited risks. ALRC 96 recognises this and dis does not provoke the same moral unease in Australia cusses it with intelligence and sensitivity. According as it does in the US given the stark difference in to information collected during a two-year survey run accesis to basic health care in the two countries. ning from 30 November 2000 to 30 November 2002, Instead, the report focusses on features that all forms 235 applications received by life insurance companies of insurance that might want to consider genetic infor in Australia contained genetic information. In the cal mation have in common. This approach has its advan endar year 2001, those same companies issued 1.23 tages;. After all, the same company may sell different million new policies. This paltry number—235—might insurance products, the laws governing discrimination seem inconsequential unless, that is, you were one of and privacy apply broadly across types of insurance, the 58 who received a policy with other than standard and t he mechanics of evaluating and rating applica terms, one of the 26 whose applications were deferred, tions for insurance are similar whether someone is or—especially—one of the 29 who were declined, when

ssue 83 2003 ~ Page 49 Reform Women in the law this may feel very consequential indeed. Genetic infor point of particular significance to readers in countries mation was identified explicitly as the cause for the without universal access to health insurance such as adverse decision in 24 per cent of the cases. the US. Then further: ‘Giving more favourable under writing treatment to applicants because of the generic Critics of the use of genetic information in insurance [my emphasis] basis of their disease creates an arbi warn that such information may be misunderstood. trary distinction between individuals according to tiie Genetics has not received much attention in the train source of their ill-health or disability.’3 ing of physicians other than specialists in medical genetics, so odds are that the medical directors of With this last claim, the ALRC and AHEC reject the insurance companies may be at sea when a report of notion of ‘genetic exceptionalism’—in their words an abnormal genetic result is thrust upon them. Like again, ‘the idea that genetic information is so funda wise, given the relative newness of most genetic tests, mentally different from, and more powerful than, all it would be difficult or impossible to have valid actuar other forms of personal health information that it ial data on their significance for medical underwriting. requires different and higher levels of legal Aware of the possibilities that genetic information may protection’.4 This is, in my view, the single most be misinterpreted, the report recommends that the courageous and wise judgment in the report. Genetic proposed Human Genetics Commission of Australia information remains mysterious and threatening to (HGCA) should assess those genetic tests used in many. Our judgment is easily skewed by its novelty insurance underwriting, particularly their scientific and our suspicions of its occult powers. Yes, genetic reliability and actuarial relevance, and that industry information can be misused either through misunder codes should ensure that insurers use genetic test standing or malevolence. ALRC 96 offers cogent and information only in accordance with the HGCA’s rec thorough recommendations to guard against both. In ommendations. its thoroughness, its candor, and its analytic depth Essentially Yours: The Protection of Human Genetic What is the magnitude of the problem of genetic dis Information in Australia sets the standard for advice crimination in insurance? The ALRC and AHEC do a to the public and policy makers on how to understand commendable job in weighing the evidence, which and protect genetic information. remains primarily anecdotal. On the one hand, the relatively small number of cases, some of them not * Thomas H Murray, Ph D, is President of The unambiguously clear cases of wrongful discrimination, Hastings Center in Garrison, New York, USA. suggests that the phenomenon might be rare at this time. On the other hand, insurers’ standard practices The Hastings Center is an independent, non of risk rating and the rapidly increasing supply of partisan, and non-profit bioethics research genetic information lead to the conclusion that it will institute founded in 1969 to explore funda become commonplace in the near future. What then mental and emerging questions in health care, should be the public policy response? biotechnology, and the environment.

ALRC 96 takes a firm stand and argues for it sensibly. First, the report notes: ‘Although insurance can pro Endnotes vide insureds and their families with significant finan 1. Australian Law Reform Commission and Australian cial support in adverse circumstances, private insurers Health Ethics Committee, Essentially Yours: The Protection of should not be expected to provide a social safety net for Human Genetic Information in Australia, ALRC 96 (2003), Australians regardless of their genetic status—that ALRC, Sydney, para 26.96. function is more appropriately performed by the social 2. Ibid, para 26.97. security system and the public health system.’1 It goes 3. Ibid, para 26.100. on to note that ‘Australians do not appear to regard 4. Ibid. private insurance of the kind presently in question as an essential good’.2 The reference here is primarily to life insurance, and not at all to health insurance—a

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Gene patenting and human health: The ALRC Issues Paper By Professor Anne Finlay*

BBI he. Australian Law Reform Commission

(ALRC) has released an Issues Paper—Ceme \ ' 4 , , „ Patenting and Human Health (IP 27)—as the fiirst 4- K „«« 4, stage of its inquiry into intellectual property rights and practices with respect to genetic materials and related technologies. The main *.f / f focus of the inquiry is on the effect that patemts and licences over genetic materials have on th*e provision of healthcare, further genetic research and Australia’s developing biotechnology indus try.

IP 27 notes the tension between the use of patents to reward inndvaition and encourage research and development, and the potential for suchi patents—if overly broad or inappropriate—to increase the cost of healthcare and hinder research and development. Problems may anise because, once a gene patent is granted, the holder of the patent can pre vent others from making use of the patented material unless they have a licence. If a licence is (overly) restricted or if the fees are too costhy, this may inhibit treatments, tests and further research.

Concerns surrounding gene patenting are often attributed to the prac tices of the United States Patent and Trade Mark Office in particular, especially during the 1990s, in too readily granting patents over somie genetic materials. Dr Francis Collins—the US scientist who led the Human Genome Project—recently told the World Genetic Congress iin Melbourne that the United States had ‘led the world into a mess’ in

ssue 83 2003 ~ Page 51 Reform Women in the law gene patenting. The ALRC is seeking to identify the analysis of a particular test. Genetic testing varies in extent to which problems identified overseas are cost from less than $100 to more than $1,000. Depend having an impact in Australia on healthcare and ing on the test and the laboratory, testing may be free research. to the patient or fees may be charged. Because mos: medical genetic tests are ordered as part of healthcare IP 27 canvasses possible areas for reform that might services provided by state and territory public clinical assist research and ensure that improvements in genetics services, there is concern among health healthcare are not stalled by licensing practices. Such departments that high licence fees will have an reforms include new defences to claims of infringement adverse impact on their budgets. of gene patents, such as where patents are used for research, for private non-commercial purposes, or for Many of the concerns relate to those circumstances medical treatment. Additionally, the Issues Paper dis where patent holders grant exclusive licences that cusses those circumstances in which existing provi allow a monopoly over testing. Where a person is sions of the Patents Act 1990 (Cth) covering Crown being tested for a genetic-related condition, the test for use, Commonwealth acquisition, or compulsory licens a gene or genetic sequence associated with the condi ing might be invoked. tion needs to identify a mutation in the relevant sequence in that individual. This requires the use of Impact on healthcare the genetic sequence of the normal gene, as well as that of the mutation. If a patent has been granted over genetic material that contains the genetic Developments in genetics hold considerable promise sequence, the use of the sequence in testing may con for healthcare. Rarely a week passes without news of stitute an infringement of the patent unless a licence a promising test or an exciting new treatment for a is obtained from the patent holder or testing is con genetic-related disease but there has been interna ducted through another licensee. tional concern about the possible adverse consequences of existing patent laws and practices on the provision As well as impacting on public health budgets, higher of healthcare—especially on the use of medical genetic costs may limit access to tests. Other concerns include testing and novel therapies, such as gene therapy, the whether patent laws and practices could have an production of therapeutic proteins and the use of stem adverse effect on the quality of genetic testing and cells. Some of these concerns are speculative and will associated medical practice. A recent study of clinical depend on the behaviour of patent holders or licensees. laboratories in the United States concluded that gene

Areas that raise most concern are predictive or diag patents and licences had inhibited publication of nostic genetic testing involving the use of patented iso research findings and information sharing thereby hin lated genetic material and sequences. Concerns relate dering the development of new genetic tests for clinical to monopoly control and its impact on the cost of test use.1 ing, access to testing and related services, the quality Governments in Europe and Canada have raised par of testing and medical practice, and the development of ticular objections to the behaviour of Myriad Genetics, new or improved testing techniques. The Issues Paper the owner, internationally, of patents over two breast asks a number of questions about the impact of gene cancer genes, BRCA 1 and 2. One of the concerns has patents on various aspects of healthcare provision. related to the anticipation that Myriad will require all There are presently about 220 medical genetic tests testing for the gene mutations to be undertaken at available from 44 laboratories across Australia. Some their premises in Salt Lake City, which will increase genetic tests offered overseas are not available in Aus the cost of testing and provide Myriad with tissue for tralia. Likewise, some types of tests offered in Aus further research. In Australia, Myriad has granted an tralia are not available, or not widely performed, in exclusive licence relating to predictive genetic testing other countries. The availability of genetic testing in for breast and ovarian cancer genes to the Australian Australia may be dependent on decisions about which biotech company, Genetic Technologies Limited (GTG). tests are ethically acceptable, and on a cost-benefit GTG has stated publicly that it will not enforce its

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rights under this licence and will biotechnology industry concerned with obtaining access to patented inven allow health providers in Australia tions which are needed to develbp new prodttets. and New Zealand to conduct diag The United States Patents and Trademarks Office has acknowledged that: nostic testing for BRCA 1 in their own laboratories and without One of the biggest public concerns voiced against the granting paying royalties. GTG has, how of patents by the United States Patent Office (USPTO) to ever, begun enforcing other patents inventions in biotechnology, specifically inventions based on its holds over the non-coding por genetic information, is the potential lack of reasonable access tions of DNA. to the technology for the research and development of commer cial products and for further basic biological research? Impact on The potential for gene patents and licences to have a negative impact on research and research is attributed to concerns about infringing patents; reluctance to i n n ovat i o n put information in the public domain in the light of the possibility of com mercialising research; and the cost and complexity of negotiating licences especially where multiple patents operate in a single area. IP 27 notes As well as considering the impact that there have been conflict ing results from overseas studies about the of gene patents and licences on impact of patents and licences on research, with one study finding that the healthcare, the ALRC is also asked need to pay licence fees is inhibiting research,3 while another suggested to examine their impact on that ‘patents and licenses for genetic inventions seem to stimulate research and its application. This research, knowledge flows, and the entry of new technology into markets’.4 highlights the complexity of the ALRC’s task and the need for a One of the areas of most concern is that of patents over ‘research tools’. careful balancing of potentially Research tools are the range of resources that scientists use in their labo competing interests. Reforms that ratories that have no immediate therapeutic or diagnostic value but which may be attractive to health are needed for further research and development. Genetic research is providers, might have an adverse somewhat unusual in that patents are commonly held not only over the impact on biotechnology compa end products of research but also over the basic information and tools nies. Biotechnology is one of the needed for further research. Researchers are concerned that patents may world’s fastest growing industrial prevent or delay access to research tools by the need to negotiate licence sectors and Australia is no excep agreements and their cost. tion. Internationally, Australia One issue for the ALRC is to identify the extent to which the problems compares favourably with the that have been identified overseas are having an impact on Australian United States in terms of the j research and ^commercialisation. It is difficult to obtain empirical evidence number of biotechnology companies of problems being encountered in Australia and the Issues Paper asks a relative to the size of the labour 9J number of questions that seek to elicit this information. force, and is well ahead of the European Union. There is strong support for the development of a Possible areas for reform biotechnology industry from federal and state governments. IP 27 identifies a number of areas where there may be scope for reform. Not all involve legislative reform. For example, IP 27 discusses whether One of the major debates in this government funding and purchasing power might be used to control the area is whether gene patents and cost of medical genetic testing that is subject to patents. licences inhibit research and inno vation, rather than promoting Among possible legislative reforms, IP 27 discusses new defences to claims therm. These concerns are voiced of infringement of gene patents, such as where patents are used for by scientists undertaking basic research, for private non-commercial purposes, or for medical treatment. research and echoed hy some in the A ‘research use’ defence might overcome some of the problems discussed

Issue 83 2003 - Page S3 Reform Women in the law above. Currently the Patents Act does not expressly exempt research application. The Act does not stip involving patented inventions from liability for infringement although ulate any limitations on the cir many researchers often assume that non-commercial research is exempt. cumstances in which the Commcn- Both the United Kingdom and United States patents laws provide for wealth may acquire an invention research use exemptions. However, the Commonwealth must compensate a patent holder for However, an exemption for research is not without its problems particu such an acquisition of a patent. larly in relation to defining its scope. A key issue is the need to distin While this provision has the poten guish between ‘pure’ or ‘basic’ research and research that may have (or be tial to allow the Commonwealth to intended to have) some commercial application. A further issue is the dis exercise some control over the cost tinction between research on a patented invention (which may be exempt of healthcare involving the use of from claims of patent infringement) and research involving the use of a patented genetic materials and patented invention (which would not be exempt). This distinction may be technologies, it is arguable that the significant in relation to patented genetic materials and technologies. For provision should not be relied upon example, using a patented diagnostic genetic test to establish whether it too readily and should only be accurately identifies particular mutations may fall within the scope of a invoked in exceptional circum research use defence, as it is currently formulated in most jurisdictions. stances to preserve confidence in However, using the same test to conduct research on a genetic mutation the patent system. and its relationship to a particular disease may fall outside the scope of such a defence. The Patents Act also provides for compulsory licensing and these Some countries have addressed concerns about the impact of patents on provisions may provide another healthcare by excluding certain diagnostic, therapeutic or surgical meth mechanism to address concerns ods of treatment from the scope of patentable subject matter. Australia relating to access to gene patents, has not adopted this approach to date. Provided that an invention meets including for use in research and the requirements for patentability set out in the Patents Act, the Aus the provision of healthcare. A pre tralian Patent Office will allow patents on diagnostic, therapeutic or surgi scribed court may order the grant cal methods of treatment. IP 27 asks whether the Patents Act should be of a compulsory licence if: amended to include a defence to allow for the use of a patented genetic material or technology for the purposes of medical treatment of humans. 4 the reasonable requirements of the public with respect to the IP 27 also considers the circumstances in which the provisions in the patented invention have not Patents Act relating to Crown use, Commonwealth acquisition, or compul been satisfied; and sory licensing provisions may be invoked and asks whether these provi sions are adequate to remedy the possible adverse effects of gene patents 4 the patent holder has given no and, if not, how patent laws and practices might be reformed. satisfactory reason for failing to exploit the patent.5 Under the Crown use provisions, the Commonwealth or a State, or some one authorised by them, may exploit an invention covered by a patent. The court must be satisfied that The extent to which the Crown use provisions may allow the provision of the applicant for the compulsory healthcare services by the Commonwealth or a State using patented licence has tried, unsuccessfully, to genetic materials or technologies without infringing patent rights is not negotiate a licence on reasonable always clear. IP 27 asks whether the current Crown use provisions in the terms and conditions for a reason Patents Act are capable of applying to the provision of healthcare services able period of time. The patent using patented genetic materials and technologies and, if not, whether holder is entitled to be paid for use these provisions should be amended to apply to such use. of the patent at an agreed rate or one determined by a prescribed In a similar vein, s 171 of the Patents Act provides for compulsory acquisi court. IP 27 seeks comments as to tion by the Commonwealth of an invention covered by a patent or patent whether the existing compulsory

Reform ssue 83 2003 - Page 54 Women in the law licensing provisions are adequate to address concerns about access to gene patents and, if not, how these provisions should be amended. Inquiry In considering proposals for reform, IP 27 examines con straints imposed by Australia’s obligations under interna TIMEFRAME tional treaties and the degree to which the constraints affect practical options for reform. Issues Paper 27 Gene Patenting and Human Health was released at the end of IP 27 also considers the interplay between patent law and July 2003, after a period of intense back competition law. The issue is addressed because of the ground research by the Australian Law potential for the holder of a gene patent or licence to behave Reform Commission. in an anti-competitive manner. The Trade Practices Act 1974 (Cth) proscribes a range of anti-competitive con The IP set out the parameters of the duct.6 However, some of these provisions do not apply to inquiry and invited submissions from patents and licences. One provision that does is s 46, which individuals, organisations and govern deals with misuse of substantial market power. IP 27 dis ment instrumentalities. Submissions in cusses whether this section might have a role to play where response to the questions or issues in IP a patent or licence holder makes improper use of its monop 27 closed on 30 September 2003. How oly position. IP 27 also asks whether there is a role for the ever, the ALRC will produce a further Australian Competition and Consumer Commission in mon community consultation paper, a Discus itoring the impact on competition of gene patents and sion Paper, which is expected to be licences. released early in 2004. This Discussion Paper also will invite public comment. * Professor Anne Finlay is a full-time Commissioner The final report is due to be handed to of the ALRC and is a lead Commissioner of the the Attorney-General on 30 June 2004. inquiry into gene patenting and human health. All ALRC publications can be downloaded from the ALRC website at Endnotes www.alrc.gov.au. Alternatively, they are available on CD or in book format from the ALRC (consultation papers are free 1. M Cho and others, ‘Effects of Patents and Licenses on the Provi for the life of the inquiry). sion of Clinical Genetic Testing Services’ (2003) 5 Journal of Molec ular Diagnostics 3, 8. To ensure the Discussion Paper is sent to 2. United States Patent and Trademarks Office, Patent Pools: A you upon release, please register an inter Solution to the Problem of Access in Biotechnology Patents? (2000), est in the inquiry—either through the United States Patents and Trademarks Office, Washington, 2. registration form on our website or by 3. M Cho and others, ‘Effects of Patents and Licenses on the Provi providing the ALRC with your full contact sion of Clinical Genetic Testing Services’ (2003) 5 Journal of Molec details. ular Diagnostics 3, 8. 4. Organisation for Economic Co-Operation and Development, Short Summary of the Workshop on Genetic Inventions, Intellectual Australian Law Reform Commission Property Rights and Licensing Practices, (2002) OECD, Paris, 2. GPO Box 3708 5. Patents Act 1990 (Cth) s 133(2). SYDNEY NSW 2001 6. Trade Practices Act 1974 (Cth) Part IV, s 4D. Ph: (02) 8238 6333 Fax: (02) 8238 6363 TTY: (02) 8238 6379 E-mail: [email protected] Website: www.alrc.gov.au

ssue 83 2003 - Page 55 Reform Women in the law Protecting classified and security sensitive information

ne element of any government strat Oegy for securing the safety of the community is providing adequate protec tion for security sensitive information.

There is no real doubt that there is some information that, in the national interest, should not be made public. There are occasions, however, where the public interest in open justice and open government comes into conflict with a proper need for secrecy. This tension can give rise to problems, particularly in the administration of justice. While these problems are not new—courts and governments have long sought to strike the right balance—events in recent years have thrown the spotlight on them. As always, where public interests collide in this way, our response must be to find solutions that draw an accept able balance between the rights of the individual and the rights of the com munity.

What's the problem?

The trial in the United States of Zacarias Moussaoui, an alleged conspirator in the terrorist attacks on the World Trade Centre and the Pentagon on 11 September 2001, illustrates the problem in the context of criminal proceed ings. Moussaoui, who is representing himself, sought access to Ramzi bin al Shibh—a prisoner held overseas by the US Government as a member of al- Qaeda—to testify as a witness in his defence. The United States Attorney- General has refused to allow bin al-Shibh to give evidence on the basis that it would necessarily result in the unauthorised disclosure of classified infor mation and would be damaging to national security. But what of Mous- saoui’s right to properly defend himself against serious criminal charges, some of which carry the death penalty? The question now before the US judicial system is whether, in the absence of Ramzi bin al-Shibh’s evidence,

Reform ssue 83 2003 ~ Page 56 Women in the law the interests of justice can be served or whether it is arising from the suicide of her husband, Merv Jenkins. necessary to dismiss some or all of the charges against Mr Jenkins was an Australian intelligence officer who, Moussaoui on the grounds that he is unable to conduct at the time of his suicide, was under investigation for a proper defence. allegedly passing classified information to allies. A key feature of this case could be Mrs Jenkins’ ability to Moussaoui is not a US citizen and, if the courts decide obtain access to classified or security sensitive infor to cismiss the charges against him, the United States mation relevant to the presentation of her claims. executive has the power to transfer the proceedings to a military commission. The Presidential Military It is against this background that the Attorney-Gen Order issued on 13 November 2001, Detention, Treat eral has asked the Australian Law Reform Commis ment, and Trial of Certain Non-Citizens in the War sion (ALRC) to inquire into and report on the protec Against Terrorism, states that: tion of classified and security sensitive information in the course of court or tribunal proceedings and in other Given the danger to the safety of the contexts such as freedom of information applications. United States and the nature of interna The ALRC has been asked to consider whether exist tional terrorism, and to the extent pro ing mechanisms, such as claims of public interest vided by and under this order, I find con immunity, the closure of court proceedings and restric sistent with section 836 of title 10, United tions on publication of court proceedings, provide ade States Code, that it is not practicable to quate protection for classified and security sensitive apply in military commissions under this information or whether there is a need for further order the principles of law and the rules measures in this area. In considering these mecha of evidence generally recognized in the nisms, and any proposals for reform, the ALRC will trial of criminal cases in the United take into account the strong democratic values and States district courts.1 public interest in open government and fair and public Transfer of proceedings to such a commission would trials. not solve the questions of principle, rather it would give the prosecution greater control of the proceedings What is classified and and diminish the defendant’s rights. The Australian, David Hicks, currently detained by the United States security sensitive Government in a military jail at Guantanamo Bay, is i nf ormat ion? facing trial by military commission.

A similar conflict of public interests arose in Australia Information may be sensitive or classified for a variety in the case of Simon Lappas, a former Defence Intelli of reasons—because it is highly personal, commercially gence Organisation (DIO) analyst, prosecuted for pass valuable or relevant to ongoing law enforcement opera ing classified information to an unauthorised person. tions, for example. The information that is central to The ACT Supreme Court upheld the prosecution’s this inquiry, however, is information that relates to claim (based on public interest immunity) that certain Australia’s security, defence, international relations or documents containing national security sensitive infor other national interests. The Commonwealth Protec mation should not be disclosed, but on the condition tive Security Manual (PSM)3 defines ‘national security that one of the charges against Lappas be stayed.2 In information’ as any official resource that records infor the circumstances, the trial judge was of the view that, mation about or associated with Australia’s: without access to the documents in question, it was not possible to conduct a fair trial in relation to that • security from espionage, sabotage, politically moti charge. vated violence, promotion of communal violence, attacks on Australia’s defence system or acts of for These issues are not limited to the criminal courts. eign interference; Sandra Jenkins is currently bringing a civil action against the Australian government for compensation • defence plans and operations;

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• international relations, that relate to significant tected by the procedures established for dealing with political and economic relations with international ‘Restricted’ and ‘Confidential’ material. The PSM rec organisations and foreign governments; or ommends that the ‘Secret’ marking be used sparingly and the ‘Top Secret’ marking be used with the ‘utmost • national interest, that relates to economic, scientific restraint’. or technological matters vital to Australia’s stabil ity and integrity. While it is relatively straightforward to identify classi fied information, the ALRC has also been asked to con The PSM also defines ‘non-national security informa sider security sensitive information. The terms of ref tion’. This includes sensitive information about gov erence define ‘security sensitive information’ as ‘infor ernment business, commercial interests, law enforce mation that has implications for Australia’s security, ment operations and personal information. Non but is not formally classified, for whatever reason’. national security information is not the focus of the This might include information that ought to have current inquiry. It can, however, give rise to similar been classified but was not—whether through error, issues and concerns as disclosure of such information oversight or otherwise. may threaten the interests of groups or individuals other than the nation. For this reason, in developing its recommendations the ALRC will also examine What are the existing mechanisms for dealing with non-national consequences of security information in courts and tribunals. The classifying information? ALRC’s recommendations in relation to national secu rity information may also have wider application. Once information has been classified, agencies are The PSM sets out how and why information is to be required to observe certain minimum procedural classified. There are separate regimes for national requirements in handling, using, storing, transmitting security and non-national security information. Where and disposing of the information. For example, agen necessary, national security information may be given cies must take all reasonable and appropriate precau one of four national protective security markings based tions to ensure that only people with a demonstrated on an assessment of the consequences of the unautho need to know and the appropriate security clearance rised disclosure of the information: gain access to the information.

• Restricted—if compromise of it could cause ‘limited One of the more specific issues the ALRC has been damage’ to national security; asked to consider is the extent to which the security standards set out in the PSM are, or might be made, • Confidential—if compromise of it could cause legally enforceable. The PSM itself states that: ‘damage’ to national security;

Although the minimum standards and • Secret—if compromise of it could cause ‘serious general guidelines provided in the PSM damage’ to national security; are not legally prescribed, they reflect the • Top Secret—if compromise of it could cause ‘excep aims and objectives of the Commonwealth tionally grave damage’ to national security. government and legislation relating to protective security. Therefore, agencies The PSM stresses that government policy is to keep and their employees must adhere to at classified information to a minimum. The mere fact least the minimum standards in order to that information relates to national security is not suf fulfil their portfolio responsibilities A... ficient to require it to be classified—that becomes nec essary only if unauthorised disclosure of the informa The security classification system and the tion could cause damage to national security. The protective markings carry no direct impli PSM also notes that most national security informa cations in law; they are instead adminis tion reauiring classification will be adequately pro trative labels that indicate the mandatory

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requirements for a minimum level of pro litigation to protect commercially sensitive informa tection. They will, however, help agencies tion. Undertakings may be made by agreement or to meet legislative requirements for pro imposed by court order and may cover particular docu tecting official information.5 ments or information or may be enforced more gener ally. Such undertakings may also be required in rela While a breach of the standards per se would not tion to security sensitive information, and various appear to give the government a cause of action undertakings were in place in relation to the prosecu against the breaching party, there are a number of tion of Simon Lappas noted above. ways that the standards could be indirectly enforce able. This could occur where a breach of the standards Apart from express undertakings, parties to litigation also amounted to a breach of: are subject to an implied undertaking to the court not to use or disclose information received through the • a contract between the agency and an employee or court’s compulsory processes, except for the purpose of contractor; those proceedings, without the court’s leave or the con sent of the owner of the information. The undertaking • the Australian Public Service (APS) Code of Con ceases upon the information being admitted into evi duct which binds APS employees, agency heads and dence in open court. A breach of any undertaking, for statutory office holders; or example, by disclosing information to the media, is a • legislation such as the Crimes Act 1914 (Cth), the contempt of court. It might also be a criminal offence. Freedom of Information Act 1982 (Cth) or the Pri Other mechanisms for protecting classified or sensitive vacy Act 1988 (Cth). information include restricting access to documents; The ALRC is examining whether these mechanisms for example, parties may only be permitted to inspect are appropriate and sufficient or whether further mea documents rather than to take copies away with them, sures are necessary or desirable. and editing or blacking out sensitive parts of particu lar documents. Because this may limit a party’s abil ity to access or use certain information, these mecha Classified and security nisms have the potential to impact adversely on a sensitive information in party’s ability to run or defend a case. courts and tribunals Other mechanisms for dealing with classified and sen sitive information include the closing of court proceed The major issue the ALRC has been asked to consider ings to the public—that is, holding of hearings in is the use of classified and security sensitive informa camera—and court orders restricting publication of tion in courts and tribunals. It appears that investiga proceedings and restricting access to documents on the tions and proceedings that involve classified and secu court file. A recent example of in camera proceedings rity sensitive information are fairly rare in in Australia was the committal hearing in the Lappas Australia—but they attract significant publicity when case in which the classified documents allegedly they do occur. In part, this may be because cases passed by Lappas to an unauthorised person were ten involving classified or security sensitive information dered as evidence in camera. The Western Australian are not pursued in order to protect the information or District Court recently prohibited publication of the to avoid the exposure and cross-examination of intelli police statement of facts and the defendant and wit gence agents, even in restricted circumstances. ness statements in the case of Jack Roche, who is accused of plotting to bomb the Israeli embassy in Where classified or sensitive information does, or Canberra with three al-Qaeda members.6 might be, used in open court, Australian courts and tribunals have a number of mechanisms available to Closing a court to the public or the media, or restrict them to ensure that the information is dealt with ing publication of court proceedings, may not impact appropriately. Confidentiality undertakings from par on the administration of justice in a particular case ties and their legal advisers are regularly required in but it does run counter to the principle of open justice,

ssue 83 2003 ~ Page 59 Reform Women in the law an essential and well established feature of the common law judicial tradi • requiring legal representatives tion. This principle ensures that the judicial process is open to scrutiny, who need access to the informa discourages abuses and encourages public confidence in the integrity and tion to be security-cleared at independence of the process. The right to a hearing in an open court is the appropriate level. not, however, an absolute right. Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) establishes the right to a The Government also announced fair and public hearing at international law but also provides that a court an addition to its legal aid guide may be closed for a number of reasons, including national security. lines that would require legal aid lawyers to obtain a security clear While leading evidence designated ‘Top Secret’ might justify the closure of ance before they acted in cases a court, it is unclear whether leading any information that has been prop relating to Australia’s national erly marked with one of the other, lesser national security protective security. markings could justify the closure of a court, especially given Nowak’s commentary that ‘national security’ for the purpose of the ICCPR requires The ALRC will consider all these proof of a ‘grave case ... of political or military threat to the entire issues in the course of its inquiry nation’.7 but remains open on the question of whether these or any further The ALRC is also examining other practices and procedures including the measures are necessary or appro exclusion of one party or that party’s legal representatives from proceed priate. ings, the tendering of secret evidence and the holding of secret hearings. While such mechanisms clearly give rise to major concerns in relation to the proper administration of justice, they have been used, in particular, in Conclusion immigration proceedings in the United States. It is not the ALRC’s task in this inquiry to examine broadly Aus Closing a court...may not impact on the tralia’s current or proposed anti administration of justice in a particular case terrorism or other crimes and intel but it does run counter to the principle of open ligence legislation. However, it is important to consider whether the justice, an essential and well established feature current circumstances require any of the common law judicial tradition. substantial departure from the existing principles and procedures that underlie our justice system and balance the conflicting public Do we need to do more? interests of secrecy and openness, which have been developed over The Australian Government has expressed the view that further measures many years in periods of peace and are necessary. In May 2003 the Attorney-General issued a media release war, threat and stability. The stating that the Government would introduce legislative and administra mere fact that security concerns tive measures to further protect classified and security sensitive informa are heightened may not of itself tion in criminal proceedings including: justify new methods of handling classified and security sensitive • enabling closed hearings on the use, relevance or admissibility of such information, especially if civil liber material before it becomes an issue in open court; ties might be unreasonably cur • enabling the court to allow summaries or stipulations as to the facts to tailed and safeguards against be substituted; • administrative and executive abuse are not also introduced. • requiring all persons to obey, under threat of criminal penalty, any court order or direction relating to the custody, handling and disclosure The ALRC is due to report to the of such information; and federal Attorney-General by 29

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February 2004. In July 2003 the 6. M Russell and N Lawton, ‘Top Al- Commission published a Back Qaeda ‘in Canberra Plot”, The Courier Mail (Brisbane), 2 May 2003, 7. ground Paper, Protecting Classified and Security Sensitive Information 7. M Nowak, UN Covenant on Civil and Political Rights: CCPR Commen (ALRC BP 8) outlining the issues Want more tary (1993) NP Engel. the ALRC is required to consider information and as a stimulus for preliminary on the consultations and submissions. Although the deadline for submis inquiry? sions in relation to BP 8 has now passed, there will be further oppor tunity for public comment on the Copies of the Background inquiry. The Commission antici Paper, Protecting Classified pates publishing a Discussion and Security Sensitive Paper later in 2003 to outline its Information (BP 8), are preliminary views. The DP will be available free of charge used as the basis for further con either from the ALRC’s sultation and submissions. website at *Carolyn Adams is a Senior www.alrc.gov.au Legal Officer with the Aus or in printed or CD format tralian Law Reform Commis from the ALRC. sion and is currently assigned to the ALRC inquiry into clas You can register an sified and security sensitive interest in the classified information. and security sensitive information inquiry and Endnotes automatically receive copies of all consultation 1. President G Bush, ‘ Military Order of November 13, 2001: Detention, papers and regular updates Treatment and Trial of Certain Non on the inquiry by Citizens in the War against Terrorism’ contacting the ALRC and (2001) 66(222) Federal Register 57833, s 1(f). providing your full contact details. 2. R v Lappas and Dowling (ACTSC, Gray J, 26 November 2001). In July 2000 Lappas was charged with official secrets offences under the Crimes Act

1914 (Cth), s 79(2). In 2001 additional Australian Law Reform espionage charges were brought under Commission the Crimes Act 1914 (Cth), s 78(1). The GPO Box 3708 offence of espionage has now been SYDNEY NSW 2001 transferred to the Criminal Code Act 1995 (Cth), ch 5. Ph: (02) 8238 6333 3. Attorney-General’s Department, Fax: (02) 8238 6363 Commonwealth Protective Security TTY: (02) 8238 6379 Manual (2000) Commonwealth of Aus E-mail: [email protected] tralia, Canberra. Website: www.alrc.gov.au 4. Ibid, A 18, para 5.1. 5. Ibid, C 19, para 4.17.

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Managing Justice: The Government responds

he Australian Law Reform Commis federal courts and merits review Tsion’s report Managing Justice: A tribunals. review of the federal civil justice system The inquiry was completed with (ALRC 89) will become the centrepiece of the tabling of Managing Justice in federal Government initiatives to develop Parliament on 17 February 2000. a national civil justice strategy.1 In June The final report contains 138 rec ommendations covering a wide 2003, the Government released a point- range of issues and problems—and by-point response to the report, describ aimed at the variety of participants ing it as one of the ’most significant’ ever and institutions which influence produced by the ALRC. the general quality, and the partic ular practices and procedures, of The ALRC’s review of the federal civil justice system was initiated in the federal civil justice system. November 1995 after concerns that Australian legal proceedings were becoming excessively adversarial and that this was having a damaging The Government’s formal response effect on the delivery of justice. The ALRC was specifically directed by the addresses each of the recommenda terms of reference to consider ‘the need for a simpler, cheaper and more tions of the report, and notes that accessible legal system’. ‘almost half of the Commission’s 138 recommendations are directed The inquiry focussed on practice, procedure and case management in fed at procedural matters that are pri eral civil courts and tribunals, such as the Federal Court of Australia, the marily the responsibility of the fed Family Court of Australia and the Administrative Appeals Tribunal eral courts and tribunals’. ‘Some (AAT), as well as on issues such as costs, delay, legal ethics, legal and recommendations are addressed to judicial education, judicial accountability, alternative dispute resolution, legal practice and legal profes legal aid and expert witnesses. sional bodies, in particular the Law As part of its research for the inquiry, the ALRC undertook—and also Council of Australia. Some are commissioned—important empirical research in a number of areas. The directed to universities and other ALRC also engaged in a broad-based, national, community consultation bodies with responsibilities for program, releasing six preliminary consultation documents, six issues legal education. The remaining papers, a background paper and a major Discussion Paper: Review of the recommendations are matters for Federal Civil Justice System (DP 62). The ALRC met with, and received the Government.’ approximately 400 written submissions from, litigants, lawyers and legal professional associations, community groups, state and federal legal aid The Government’s response notes commissions, community legal centres, legal academics and legal educa that the report calls for a holistic tional institutions, government departments and agencies, and the various approach, and ‘rightly places

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responsibility’ for the system on many bodies and indi Some ALRC recommendations did not receive Govern viduals, in addition to government... ment support, including those relating to the abolition of the distinction between corporations and non-corpo [w]hat is needed from among all those rations for determining the rate of court fees; and the responsible for the fairness, effectiveness expansion of the Government’s dedicated ‘expensive and accessibility of the federal civil justice case’ legal aid fund. Most of these are relatively system is a range of responses that are minor, one-off issues—their non-implementation, in tailored to address the range and com isolation, does not detract from the Government’s gen plexity of legal problems faced by the com eral support for the Commission’s recommendations. munity. A number of other recommendations continue to be The Government notes that many of the ALRC’s rec considered and debated in a range of different organi ommendations already have been implemented sations and forums. The Government’s response iden through: tified a number of these ongoing issues, including: the • the establishment of an Australian Judicial College establishment of an Australian Academy of Law; (in August 2002); review of Part IVA of the Federal Court Act on class actions; the institution of event-based fee scales; a • the establishment of a Council of Australasian Tri single scale for setting court fees in the federal juris bunals (which met for the first time in June 2002); diction; and review of the Commonwealth ‘model liti

• the development of a Guide to Standards of Con gant’ obligation. The Government stated that it will duct for Tribunal Members (published in Septem continue to refer to the report ‘in equipping the federal ber 2001); civil justice system to meet the challenges of the future’. It is expected that the report will continue to • the establishment of new data collection systems by influence reforms in years to come. the federal courts; The Managing Justice report, further informa • the introduction of arbitration of family law prop tion on implementation of its recommenda erty matters under the Family Law Act by the tions, and the full text of the Government’s Family Law Amendment Act 2000 (Cth); response to the report are available on the • the amendment of the Federal Court Act to allow a ALRC’s website at . single judge to dismiss an appeal for want of prose Copies of the report—in CD or book cution or for failure to comply with a direction of format—can be purchased from the ALRC. the Court;

• increased community access to legal information Endnotes through the Australian Law Online website estab lished in June 2001; and 1. The ALRC’s report on the Judiciary Act—The Judicial Power of the Commonwealth: A Review of the Judiciary Act • the evaluation of the Family Law Assistance Pro 1903 and Related Legislation (ALRC 92), and the final report gram (completed in April 2001). of the Attorney-General’s National Pro Bono Task Force—chaired by the ALRC President—are also central to Other recommendations have Government support, the development of this strategy. but are yet to be implemented. These include the 2. On 7 August 2003, the Attorney-General announced that Commonwealth, state and territory Attorneys-General development of nationally uniform laws for the regula (SCAG) had agreed to endorse comprehensive model provi tion of the legal profession, including rules relating to sions as a basis for consistent laws to facilitate a national costs disclosure;2 a protocol governing the handling of legal profession. serious complaints against federal judicial officers;3 3. The Attorney-General’s Department has produced a draft and a ‘best practice’ blueprint applicable to dispute protocol, which is currently being considered by the federal courts. avoidance, management and resolution for federal gov ernment departments and agencies.

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claims are neither assessed on their merit nor according to the limitations principle that appropri ate resolution should be timely res olution. Therefore, the report adopts a third objective of prevent ADVERSE ing stale claims. POSSESSION With these three objectives in mind, the report considers three closely related claims that arise By Sandra Petersson* between an owner of land and cer tain persons in possession of the owner’s land. The first claim is the owner’s right to recover possession. lothed in a ragged patchwork of common law The second claim arises when the owner fails to bring a claim to principles and lumbering along between the C recover possession within the pre twin pillars of land titles and limitations legisla scribed limitation period. This tion, adverse possession has been a problem child second claim allows the person in for law reform. possession to quiet title in his or her own name on the basis of rights acquired by adverse posses Judged by some to be an unman In addressing the issue of adverse sion. The third claim is a statutory ageable delinquent in the modern possession, the Alberta report one. Where adverse possession is world, adverse possession has been offers a different perspective on the not made out but allowing the banished from numerous jurisdic relationship between land titles owner to recover possession would tions. In others, it has been shuf and limitations principles. As dis carry an element of unjust enrich fled from one reform project to putes arising from the ownership ment, the Alberta legislation offers another—though thought to be a and use of land are inevitable, the relief for some improvements made source of mischief, there were law needs to provide an efficient under mistaken belief in owner graver threats on the horizon and and appropriate mechanism to ship. This third type of claim is adverse possession would wait for resolve them, not only to determine not discussed further in this arti another day. the parties’ interests in a current cle. dispute but also to prevent the dis It may not signal that we have pute from troubling future owners. The report examines the law’s reached a benchmark in the quest Protecting future ownership development in Alberta. The adop to perfect the law but several juris implies that land can be trans tion of a Torrens land registration dictions have recently taken on the ferred. Consequently, transferabil system raises two questions. First, insidious issue of adverse posses ity is a further objective the law is registered land subject to sion (aka squatters’ rights). Eng must ensure. The report adopts adverse possession? Alberta courts land, Ireland, and the Australian these objectives of protecting held that, regardless of Torrens states of Queensland and Tasma future ownership and ensuring registration, an owner’s claim to nia have all issued recent reports.1 transferability. While these two recover possession remains subject The Canadian province of Alberta objectives are well served by land to limitations legislation. Second, adds to this body of work with its titles legislation, the report also what is the effect on adverse pos 89th report: Limitations Act recognises that sole reliance on the session of an indefeasible transfer? Adverse Possession and Lasting register is an arbitrary approach to Although registered land was sub Improvement (2003). dispute resolution. Competing ject to adverse possession, Alberta

Reform issue 83 2003 ~ Page 64 Women in the law courts protected the Torrens touchstone of indefeasibil division approval a pre-requisite to registering title. If ity. If land is transferred in circumstances conveying approval cannot be obtained, the interest acquired by indefeasible title, any period of adverse possession will adverse possession cannot be registered or caveated, be wiped out. From a limitations perspective, the leaving title with the owner. Only in the rare circum effect of indefeasibility is to allow the new owner a stances where the owner falls outside these many new limitation period. layers of protection, is there scope for an adverse pos sessor to successfully quiet title. This logical balancing of land titles and limitations principles was upset by the coming into force of a new *Sandra Petersson, Counsel, Alberta Law Limitations Act in 1999 (the ‘new Act’). While the Reform Institute. absence of a provision to automatically extinguish an The report Limitations Act: Adverse Posses owner’s rights when the limitation period expires has sion and Lasting Improvements (Final Report attracted considerable attention, this change ulti No 89) is available online at mately raises little cause for concern. The cancellation < www.law.ualberta.ca/alri/>. of former rights is covered by land titles legislation; amendments are recommended to address the concept of acknowledgment and to prevent the mischief of late Endnotes re-entry by the owner. However, the report identifies a more serious problem in determining when the limi 1. Ireland, Law Reform Commission, Title by Adverse Posses tation period to recover possession of land begins. sion of Land (2002); UK, Law Commission, Land Registration Under the new Act, claims based on a continuing for the Twenty-First Century: A Conveyancing Revolution course of conduct do not arise until the course of con (2001) and Limitation of Actions (2001); Queensland Law Reform Commission, Review of the Limitation of Actions Act duct ends. As adverse possession is based on continu 1974 (Qld) (1998); Law Reform Commissioner of Tasmania, ing trespass, the owner’s claim to recover possession is Report on Adverse Possession and Other Possessory Claims to postponed until the adverse possessor leaves the land. Land (1995). Consequently, the owner may claim to recover posses sion at any time, contrary to the intent that such claims would remain subject to a 10-year limitation period. Reform seeks to provide a forum for debate on matters of national While other Torrens jurisdictions within Canada allow this result, the Alberta report questions whether and international law reform, and exempting landowners from a limitation period is justi invites other law reform agencies fied. The report concludes that there is no sound to contribute short articles policy basis to distinguish landowners from other on aspects of their current work classes of claimants and recommends that claims to programs. Please contact the recover possession of land should be subject to a limi tation period that runs from when the owner is dispos Editor before submitting articles. sessed. This is not to suggest that land is readily vul nerable to adverse possession in Alberta. On the con For further information on law trary, the law provides landowners with several layers reform initiatives being conducted of protection. Firstly, indefeasibility under land titles in Australia and overseas, please see legislation protects an owner against prior claims. the 'Reform roundup' and 'Clearing Secondly, limitations legislation affords an owner 10 house' sections of the journal, years to bring a claim if dispossessed. Thirdly, as the common law has evolved in Alberta, the test for dispos beginning on page 76. session is very high and there are relatively simple means for the owner to reassert title. Planning law also offers a further level of protection by making sub

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Reform ssue 83 2003 ~ Page 66 Women in the law Reviews

Restorative Justice and and trying to solve them as an alternative to imposing penalties. His work in this area was a significant Responsive Regulation by resource for the Australian Law Reform Commission John Braithwaite, Oxford during its inquiry into civil and administrative penal University Press, New York, ties. As a member of the Advisory Committee to the 2002; pp3 I 4; $58.95 inquiry, Professor Braithwaite made a valuable contri bution to the development of the Commission’s report Principled Regulation: Federal Civil and Administra John Braithwaite, tive Penalties in Australia (ALRC 95). Professor of Law in the Research School The book currently under review brings together his Restorative of Social Sciences at theories of restorative justice and responsive regulation the Australian and applies this integrated theory in a range of regula Justice and National University, tory environments as diverse as the promotion of sus has written exten tainable economic development and international Responsive sively on restorative peacekeeping. Restorative justice is placed at the justice, including in bottom of the responsive regulation pyramid. This Regulation the criminal context, means that the less costly and less coercive options for and on responsive encouraging regulatory compliance are tried first. If JOHN BRAITHWAITE regulation in the these are not successful, the regulator escalates up the business context. pyramid to more coercive methods of deterrence such This book is not the as penalties and finally to methods which incapacitate first time he has drawn these two concepts together, but the actor such as suspension or revocation of a licence it does present a comprehensive and developed state to operate. ment of his research and theories on the integration and The writing style is clear and at times lyrical—the local application of these strategies to move towards better ism of the restorative movement makes it to justice what outcomes for individuals and communities. jazz is to music. He finds a good balance between con Victim-offender mediation, family group conferences tent dealing with historical context, theory, empirical and whole school anti-bullying programs are examples evidence and practice. The text includes boxed inserts of restorative justice at work. These processes aim to setting out specific illustrative examples of the theories give those affected by an injustice an opportunity to be discussed. While the information contained in these heard within a framework designed to heal and restore boxes is generally of interest, the physical placement of rather than punish. the boxes can be distracting.

In the past Professor Braithwaite’s responsive regula Professor Braithwaite is passionate about his subject tion work has focussed largely on the business environ without being uncritically evangelical. In discussing ment. The key concept here is identifying problems restorative justice and responsive regulation he notes

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their potential dangers, weaknesses and limits. The • What form should international criminal justice real strength of this book, however, is the strong links take? he draws between restorative justice and responsive regulation and the forces that drive and motivate • What law should apply? For example, French lawyers were opposed to the Nuremberg Tribunal human beings. While his ideal world in which ‘the being based on Anglo-Saxon common law rather forces of law are listening, fair and therefore legiti than Roman law. mate’ seems like an utopian dream, it is not hard to be convinced that the mechanisms he champions do have • How are defendants chosen? The choice of defen a valuable place in regulating society’s ills. dant at Nuremberg was the product of a great many different strands of political argument. — Carolyn Adams

• How are charges framed? The difficulty in Nuremberg was to define crimes that could be From Nuremberg to The applied to the defendants, few of whom could be Hague: The Future of shown beyond any reasonable doubt to have directly ordered or perpetrated particular crimes. International Criminal This raised the complexity of proving ‘conspiracy’. Justice by Philippe Sands • How does international criminal justice interact (Ed), Cambridge University with the principle of state sovereignty? Press, April 2003; pp206; $49.95 • How can the notion of retrospective justice be jus tified? At Nuremberg, the crimes of which the defendants stood accused were not regarded as From Nuremberg to crimes when they were committed. The Hague is a collec tion of essays that The second essay, by Andrew Clapham, explores examine the evolution three concepts that are central to the issues raised in of international crimi this collection: complexity, complicity and comple nal justice from its mentarity. ‘Complexity’ refers to the difficulty caused post-Second World War by the vague nature of crimes tried by earlier tri origins at Nuremberg bunals. Clapham also discusses the notion of ‘com through to the prolifer plicity’—why such a concept is needed, and how those ation of courts and tri concerned with violations of human rights are using bunals with interna the concept today. The paper concludes with a dis tional criminal law cussion of the ICC and the concept of ‘complementar jurisdictions based at ity’—the idea that priority must be given to trials for The Hague and Arusha, and the International Crimi international crimes at the national level, rather than nal Court (ICC). the international level.

The first essay ‘The Nuremberg trials: international The third paper ‘After Pinochet: the role of national law in the making’ by Richard Overy provides a fasci courts’ by Philippe Sands continues to examine the nating account of the establishment and operation of notion of complementarity, and asks, which the Nuremberg trials. This paper raises a number of courts—national or international—are best suited to political issues that are echoed throughout the collec exercise jurisdiction over individuals accused of tion: • crimes against humanity, war crimes and genocide. The primacy accorded to national courts under the • What is the purpose of international criminal jus ICC statute has not been the governing principle for tice? other international courts. For example, the statutes

Reform ssue 83 2003 ~ Page 68 Women in the law establishing the International Criminal Tribunals for Macon o c h i e 9 s Gentlemen: Rwanda and the former Yugoslavia recognise the con The Story of Norfolk current jurisdiction of national courts, while the Con Island and the Roots of stitution of the Nuremberg Tribunal was silent on its Modern Prison Reform by relationship with national courts. Norval Morris, Oxford Uni versity Press (USA), 2002; ‘The drafting of the Rome Statute’ by James Craw ford looks at the work of the UN International Law p p 2 4 0; $45.00 Commission in preparing the Draft Statute of the ICC and the transformation of that draft into the In Maconochie’s Gen final statute as it emerged at Rome in 1998. Not sur prisingly many of the issues involved in establishing Maconochie's tlemen, author the ICC are similar to those faced by the originators Gentlemen Norval Morris asks of the Nuremberg Tribunal. why law-abiding citi The Story of NORFOLK ISLAND zens should care The final paper by Cherie Booth, ‘Prospects and artd the Rooto of about prison systems Modern Prioon Reform issues for the International Criminal Court: lessons and the conditions from Yugoslavia and Rwanda’, addresses the under which offend prospects of the ICC in terms of its legitimacy and ers are incarcerated. credibility, function, and as a truly international Morris suggests that ‘institution’. In this paper, Booth raises an issue of the treatment of a particular relevance to this edition of Reform—the convicted criminal is appointment of women to the ICC. She argues that a measure of a to be effective, legitimate and credible, the Court requires representation of the principal legal systems, civilised society appropriate geographical representation, and an ‘The beginning of an answer is to be found in the fact appropriate gender balance. that the criminal justice system exercises the greatest This excellent and thought-provoking book celebrates power that the state can legally exercise against it citi the many positive developments in the international zens. Consequently a prison regime defines the razor criminal justice system over the past 50 years. How edge between power and freedom, authority and ever, at a time when the United States argues for autonomy.’ immunity from prosecution by the ICC, these essays also remind us that the creation of war crimes trials, Maconochie’s Gentlemen is the story of Alexander and their successes and failures, have always Maconochie and his work to change the brutal convict reflected the diplomatic concerns of the time and the settlement on Norfolk Island into a model of civilised struggle amongst political leaders to determine the prison reform. In telling Maconochie’s story, Morris future order. seeks to cast light on the present day American penal system. — Jonathan Dobinson

In 1840 Norfolk Island was home to the worst crimi nals in the colony. Norfolk was the prison of last resort, where a convict was sent after they had offended more than once. The convicts worked in shackles, had unhygienic, overcrowded sleeping and living quarters and vicious beatings by guards were commonplace.

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Maconochie was a retired naval captain who Despite Norfolk becoming a peaceful settlement over requested his transfer to Norfolk. Over the four this time, and many of the prisoners (known as years he was commandant of the prison colony, he ‘Maconochie’s Gentlemen’) being settled into the com instituted a series of reforms directed at rehabilita munity, Maconochie’s methods were questioned by tion and empowerment of the 2,000 prisoners on the authorities back in England and he was sent back island. Morris writes that Maconochie started with a there in 1844 where he continued to advocate for firm premise that ‘banishment to Norfolk was punish prison reform. ment enough. Subjecting the prisoners to further tor ment would only render them more bitter and For most of the book, Morris tells Maconochie’s story broken’. as a novel through his three major characters: Maconochie, his daughter Mary Ann and a convict. Maconochie’s methods were based on his own ‘marks This device works well, and through the different system’ of rewarding good behaviour. The system, on voices Norris effectively captures some of the conflicts which Maconochie wrote extensively, was based on inherent in his approach to prison reform. When the following elements: Mary Ann falls in love with a convict, Maconochie must confront his own prejudices and the limitations • prison sentences should be of indeterminate of his views on rehabilitation. length, based on ‘work and behaviour’ rather than ‘time’; In the final sections of the book, Morris briefly out

• marks were to be allotted for good work and lines the remainder of Maconochie’s life and discusses behaviour, the accumulation of which would ulti modern American correctional practice. He is highly mately reduce a sentence; critical of the current system of incarceration, in par ticular zero tolerance polices and the creation of iso • progress or regress in marks will be known by the lated, super-max prisons to house the ‘worst of the prisoner; worst’ in lock-down conditions. Morris argues that

• increasing autonomy is given to the prisoner as the main public debate on incarceration—whether marks increase; deterrence or rehabilitation is the more powerful technique for crime reduction—‘remains shatteringly • convict groups should work together, with the superficial and does not seriously address either the incentive that more marks can be earned as a social utility of incarceration or the rights of the indi group than as individuals; viduals who are imprisoned’. • optional and voluntary additional cell work should be available to allow a prisoner to earn more Splitting the book into two styles is risky and there is marks; a slight jarring between the fiction and the academic debate that follows. However, in both sections, • release procedures should be graduated, including Maconochie’s Gentlemen is a fascinating story. As supervised settlement back in the community, Australian governments continue to bow to pressure leading to eventual freedom. to lock criminals up and throw away the key, this book serves as a reminder of our long history as a Central to the system was restoring a sense of per sonal autonomy and dignity. During his period of penal colony, and the basis of early prison reform. leadership, Maconochie brought musical instruments — Kate Connors to the prison, established a library with books read to illiterate prisoners, permitted the use of eating uten sils and allowed gardens to be planted. His system of rewards for marks earned also included offering increased privacy for prisoners.

Reform Issue 83 2003 ~ Page 70 National and Internationa security

The Book of The Board: The book reprints an extract from a work by Nathan Effective Governance for Garber dealing with models of governance. He identi fies five different models. These are the advisory Non-Profit Organisations board, patron, cooperative, management team and by David Fishel, The Federa police board models. As Garber notes, the advisory tion Press, Sydney, 200 3; pp board model is often chosen where the CEO is the founder of the organisation and needs some additional 289; $49.95 skills and credibility that might come from the board. However, as Garber also notes the ‘hands-off approach of such boards may expose members to liability if the David Fishel, board fails to put into place sufficient accountability together with seven mechanisms. Patron boards may provide even less specialist contribu influence over the organisation than the advisory tors, has written the board model, but can be useful to establish credibility first comprehensive where there is also a governing board. work for board mem

bers and other senior The cooperative model, where members seek to management of non manage using a democratic, collective approach, is also profit organisations the most difficult one to maintain because it requires in Australia and New compromise, which may be difficult if members hold Zealand. strong ideological views, and there may be difficulty in implementing effective accountability structures. The The Book of the management team model was for many years the dom Board: Effective Gov inant model for non-profit organisations. The struc ernance for Non-Profit Organisations is particularly ture of the board and its committees may reflect the valuable because board members of non-profit organi administrative structure of the organisation itself. sations are drawn from a diverse range of back Such boards are characterised by a high degree of grounds, experience and training and frequently take involvement in the management and administration of up such positions with little training or materials to the organisation but can run the risk of seeking to guide them. While it is directed at governance of non micro-manage the organisation and failing to distin profit organisations, there is much in The Book of the guish between governance and management roles. Board to assist neophyte members of boards of statu The risks of this approach led to the development and tory corporations. growing popularity of the final model: the policy board

The legal environment in which non-profit organisa model, drawn from the influential writing of John tions operate is increasingly complex, and the fact that Carver. In this model, boards establish guiding princi an organisation does not seek to make a profit does not ples and policies; delegate responsibility and authority excuse the board from its management, monitoring to the relevant staff of the organisation; monitor com and compliance roles. However, texts aimed at direc pliance; and ensure appropriate accountability by both tors of profit-making companies often emphasise the the board and the staff. duties of the board in the context of the long-term prof The book provides an outline of the responsibilities of itability of the company, a concept that may be unhelp the board and their processes including meetings, ful for members of non-profit organisations. Non-profit strategic planning and the relationship between the organisations also face issues that are not a feature of CEO and the board. There is a section of resources: 16 most corporations such as the need to raise funds short chapters of checklists covering a range of matters through donations, the use of a significant number of from recruitment of a CEO; insurance; conflict of inter volunteers and, potentially, a board with little busi est; volunteers; training; discipline; and performance. ness experience. While these checklists would be no substitute for pro-

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fessional advice where needed, nor even for careful political order in Adam and Eve’s fall from Eden are deliberation, they do provide members with an outline addressed, as are Aristotelian theories on the origins of matters they might consider as part of their overall of the normative citizen. The book explores ‘underly monitoring functions. The final chapter provides ing histories’ with a view to addressing the reasons useful lists of further reading and helpful websites. surrounding the vast inequities of citizenship includ ing those between men and women, white and Indige Fishel and his contributors enliven their material with nous persons, and British and non-British migrants. case studies and interviews with heads of a number of While the historical exploration serves a purpose in non-profit organisations in Australia and New demonstrating that exclusion has been a core aspect Zealand, putting issues in a real-life context and pro of citizenship since its inception, the book’s considera viding real world examples. The Book of the Board has tion of the historical context is disproportionate to its much to offer anyone who finds him or herself taking attention to the vast array of citizenship experiences part in the running of a non-profit organisation. of women in Australia.

— Anne Finlay A key theme of the book is the historically exclusion ary nature of citizenship based on race, gender, social class, property, religion, marital status and language. Women As Australian Cit The book presents an alternative to writings on citi izens: Underlying Histo zenship that assume that the normative citizen is male and that citizenship merely entails voting and ries edited by Patricia other formal political rights. The editors restate citi Crawford and Philippa Mad- zenship in broad terms and explore the concept of dern, Melbourne University ‘subterranean’ citizenship—the ways in which women, despite their exclusions, have enacted their Press 2001; pp 296; $32.95 own alternative versions of citizenship by participat ing in philanthropic, social, religious, and educational ventures as well as matters of public concern such as The title of the book the anti-slavery campaigns. suggests that its focus is on the citizenship expe In dealing with the exclusionary nature of citizen riences of women in ship, the book clearly demonstrates the role that Australia. However, women have played in excluding other women from only the last three chap citizenship. Women, because of race or class, can be ters, which are particu the oppressors as well as the oppressed. The explo larly engaging, ration of ethnicity as a potent axis of exclusion is focussing on women in incisive. Consideration is given to Aboriginal colonial Australia, femi women’s criticism of white Australian feminists who nism and racism in 20th failed to realise that race, rather than gender, was century Australia and the most significant factor in their exclusion from cit the citizenship experi izenship. The divergent treatment given to white, ences of migrant women in Australia, deal with the non-European and Indigenous women in relation to Australian context. motherhood is also explored. Asian and Indigenous women were barred from receiving the maternity A large portion of the book is directed to placing the allowance, and while the government actively inter Australian experience of citizenship in a very broad vened to deny motherhood to Indigenous women, ranging historical context, which is ambitious in its white women were encouraged to ‘breed up’ the breadth, stretching back to the Middle Ages and the supply of white Australian citizens. The book raises early modern period. St Augustine’s and Thomas the pertinent question of whether it is meaningful to Aquinas’ theories on the origins of household and talk about ‘women’ when they are divided by many

Reform ssue 83 2003 ~ Page 72 Women in the law differences, principally along race and class struc tures that influence their respective access to political rights.

The book acknowledges the role of English as a lan ADVERTISE guage of exclusion and states that it seeks to counter the trend of Australian feminist research that unwit tingly places Anglo women at the centre. However, in the chapter on Anglo-centralism in multicultural Aus tralia deals with only three migrant groups: the Ital ians, the Vietnamese and the Yugoslavs. By omitting Reform consideration of the experiences of women living in Australia from a broader range of migrant back grounds the book commits a form of exclusion, which is disappointing given that one of its key themes is the historically exclusionary nature of citizenship. Reform captures a The chapter dealing with migrant women could have diverse, informed also benefited from a consideration of the treatment of refugee women in Australia, including the limited national audience that citizenship rights afforded to those granted a tempo includes rary protection visa. policy-makers, With a view to modelling a more equal and more academics, tertiary inclusive citizenship for the 21st century, the editors conclude that the ‘idea implicit in constructions of cit & secondary izenship from Aristotle to the 1990s—that full citi students and zenship entails governing or protecting other less- than-complete citizens has long outstayed its wel community based come’. They state that the way forward lies in recog organisations, nising diversity and difference, and striving for a more egalitarian society where citizenship is based on as well as legal mutual care, rather than protection. professionals.

— Isabella Cosenza

Rates available on request.

Contact: The Editor, Reform GPO Box 3708 Sydney NSW 2001 Ph: (02) 8238 6333 Fax: (02) 8238 6363 E-mail: [email protected]

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that the courts cannot ignore them, even if legislatures Continued from page I manage to do so. Holmes referred in this regard to Comment ‘the felt necessities of the time’—the sort of jurispru Unlike the United States Supreme Court, which is now dential Zeitgeist that led Lord Mansfield to abolish almost exclusively a constitutional court, the High slavery in the late 1700s (the British Parliament took Court has retained its key role as the final court of until the 1830s to abolish it in the colonies); or led the appeal in Australia in all fields of law. This means majority of the House of Lords in 1932 to develop the that the High Court deals with a diverse range of sub duty of care in Donoghue v Stevenson, the foundation ject areas of public importance that arrive via the of modern negligence law, over the opposition of more lower courts, whether or not these might have a consti ‘timorous souls’; or led the majority of the US Supreme tutional dimension—for example, matters of statutory Court to discover ‘reproductive rights’ in the 1960s construction, criminal liability and common law negli (Griswold v Connecticut)-, or the High Court of Aus gence. tralia finally to recognise native title in the 1990s {Mabo, Wik). It is not widely appreciated in the general community that the Mabo case—which first recognised the exis Although the common law system is based, properly, tence of native title in Australia, where this can affir upon strong adherence to precedent (and thus change matively be established by Aboriginal communities normally comes through slow accretion rather than —was based upon common law property rights, rather bold changes in direction), the work of the superior than constitutional rights or international treaty oblig courts invariably provides some opportunities for the ations. The High Court does not shrink from this development of the law, whether this involves the responsibility, despite its heavy workload and the interpretation of statutory provisions, the resolution of added challenges of Australian federalism. For exam direct conflicts in the law, the filling of gaps or the ple, there have been suggestions from time to time remediation of incoherencies in the law, or the applica that there is no unitary Australian common law’, but tion of old principles to dramatically new circum rather nine different federal, state and territory ver stances. sions. However, in 1997, the High Court made plain its view in Kruger that there is a single Australian All of these contexts also provide the basic subject common law, and that it is the final expositor, binding matter for institutional law reform. For example, to all other courts, state and federal. draw on recent controversies as well as recent ALRC inquiries, how do we develop existing fields of law and In Australia, as in other common law countries, there regulation—privacy, anti-discrimination, criminal lia are seemingly endless—and almost entirely unproduc bility, occupational health and safety, intellectual tive—arguments about whether judges should make property, family law and so on—to accommodate the law, or simply find it. The great American jurist, rapid advances in the ‘New Genetics’? Do we need to Oliver Wendell Holmes, is often cited for the proposi rethink the strictures of our ‘double jeopardy’ rules tion that judges, even at the apex of the justice system, when improvements in forensic science make available do not have a general roving brief to engage in law compelling evidence after the completion of the trial? reform: Has the law kept pace in all areas with changing sen

The common law is not a brooding sibilities about the role of women in society? Or about omnipresence in the sky, but the articulate the nature of adoption? Or about the nature of the voice of some sovereign or quasi-sovereign family? that can be identified. It always is the Whatever one’s views about the extent to which courts law of some state. ... Judges do and must can, or should, be ‘bold’ or ‘activist’ in such areas, there legislate, but they must do so only inter is little doubt that the courts are very limited in how stitially: they are confined from molar to far they can go in this direction. Courts may seize on molecular motions.1 the circumstances of a particular case to articulate a On the other hand, Holmes recognised that sometimes new guiding principle (‘some persons are owed a duty the pressures for social change become so powerful of care’; ‘native title exists’; ‘there should be a right to

Reform Issue 83 2003 ~ Page 74 Women in the law privacy’; ‘serious criminal offences should always 19. The Law Society of New South Wales 1998 Family require proof of mens rea’; and so on), but detailed Responsibilities Study found that respondent solicitors worked longer hours than the average working hours identi elaboration will require a large number of diverse fied by the Australian Bureau of Statistics. Female respon cases over a long period of time. dents worked an average of 49 hours while male respondents worked an average of 52 hours a week. Average working Legislative and law reform processes are much better hours by all women employed full-time in 1996 was 36 hours suited to this sort of systematic development. Institu and for men employed full-time, 44 hours. Source: The Law tional law reform provides the opportunities and Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 9. resources for the comprehensive, comparative and 20. The Law Society of New South Wales After Ada: A New multi-disciplinary research needed; for public engage Precedent for Women in the Law 29 October 2002, 10. ment and consultation; for balancing competing sec tional interests, and carefully weighing costs and bene fits. Not least, development of the law in this way is more in keeping with democratic theory—recognising that while a superior court may have to develop the Continued from page 25 A personal perspective of a woman barrister common law sufficiently to do justice in a case where precedent is unavailable or clearly inapplicable, ulti This is the discrimination that has yet to be overcome. mate authority for shaping the legal framework of the The high profile members of the profession are nation must rest with the people’s elected representa expected to speak for and represent the women of the tives in Parliament. profession. They carry a huge burden and it is a burden that will only be lifted when ordinarily compe Endnotes tent women, or even incompetent women, are given I. Southern Pacific v Jensen 244 US 205, 221-222 (1917). exactly the same level of treatment as ordinarily com petent, or even incompetent, men. When women no longer receive either the ‘token’ or the ‘superwoman’ comment but are simply judged for who we are, that is Continued from page I 3 Effective law effecting change when the change will have come. gory as intake was steady at 25 per cent across both cate I must admit that a lot of this is invisible to me, but gories: NSW Bar Association Statistics Booklet Volume 3 rational logic means that it must have an effect on my (August 2002), 6. practice. If I have a bad day in court, perhaps I am 10. The mode age of women at the NSW Bar is 35—39 years criticised behind my back more than a man having a of age: NSW Bar Association Statistics Booklet Volume 3 bad day in court. Perhaps the flip side is that if I have (August 2002), 6. a good day, I am commended more than otherwise I II. Women account for 14.8 per cent of juniors at the Bar and only 3.3 per cent of Seniors at the Bar: Membership of would get. the NSW Bar Association as at 24 February 2003. Statistics supplied by the NSW Bar Association. The mode age of men In the meantime my days are long just like everyone at the NSW Bar is 45-49 years of age: Statistical Profile of else’s. I generate advices, affidavits and pleadings just the NSW Bar Volume 3 (August 2002), 4. like anyone else. I enjoy being a woman but I suspect 12. Sex Discrimination Act 1984 (Cth), s 3. it makes little difference to my own practice. 13. Geraldine Neal Madonnas, Seductresses, Pets and Iron Maidens—Women in the legal profession in Queensland Paper * Carolyn Sparke LLB, BSc has been a barrister presented to International Sociology Congress Brisbane 2002, 24. in Victoria since 1991. She specialises in 14. Sex Discrimination Act 1984 (Cth), s 14. equity/wills and probate law and has a practice 15. Sex Discrimination Act 1984 (Cth), s 17. in general commercial work, including prop 16. Hickie v Hunt and Hunt [1998] EOC 92-910. erty law, insolvency, intellectual property and 17. The Law Society of New South Wales After Ada: A New corporations. Precedent for Women in the Law 29 October 2002, 32. 18. Australian Bureau of Statistics 6203.0 Labour Force Aus tralia February 2003, 16.

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Articles in Reform Roundup are contributed by the law reform agencies concerned

constitutional aspects of the scope of judicial review Contents and other relevant factors such as:

• justiciability; Administrative Review Council 76 • deference; Family Law Council 77 • the nature of certain grounds of judicial review; New South Wales Law Reform Commission 78 • resource-related considerations; Legal, Constitutional & Administrative • the nature of the decision maker; Review Committee (QLD) 80 • the nature of the decision; Tasmania Law Reform Institute 81 • alternative remedies; and Victorian Law Reform Commission 83 • ways of legislatively limiting or excluding judicial Law Reform Commission of Western review. Australia 86 Uniform Law Conference of Canada 87 On the basis of responses to the discussion paper and Manitoba Law Reform Commission 88 related consultations, the Council will commence work Law Reform Commission of Nova Scotia 90 shortly on the second stage of the project—develop Law Reform Commission of Ireland 91 ment of a set of guidelines. Law Reform and Development Commission of Namibia 93 Automated assistance in New Zealand Law Commission 94 administrative decision Scottish Law Commission 96 South African Law Commission 98 making

The Council’s issues paper, Automated Assistance in Administrative Decision-making was released in June Administrative 2003. Submissions on the paper closed at the end of Review Council August.

The paper surveys the current use of computer based The scope of judicial ‘expert systems’ for primary decision making within review the Commonwealth agencies and considers the impli cations for administrative decision making of the use The scope of judicial review project reached a signifi of this technology. The paper raises issues such as the cant milestone with the publication and distribution of potential ‘de-skilling’ of decision makers, and the rela a discussion paper in March 2003. The paper explores tionship between the administrative law system and a number of aspects of judicial review, including the decisions made by computer-based systems.

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The Council is currently planning stakeholder consul The project will identify and categorise the current tations, which are likely to include public forums over variations in these three areas across Commonwealth the next few months in several cities. Input from a legislation, and the reasons for these variations, with a wide range of interested parties is being encouraged. view to achieving increased consistency across legisla tion. A final report will be published taking into account submissions in response to the issues paper and forum A possible outcome of the project will be recommenda outcomes. It is anticipated that the report will serve tions to government on suitable amendments to the as a guide to Government on the appropriate use of procedural discretions provided to tribunals and the expert systems in administrative decision making. circumstances when such amendments are appropri ate.

Coercive investigative powers of government Council membership agencies Several new members have recently been appointed to the Council. Ms Sue Vardon, CEO of Centrelink, Ms The Council has commenced a new project that will Melanie Sloss SC, Barrister and Mr Andrew Metcalfe, look at the range of investigative powers conferred by Deputy Secretary of the Department of the Prime Min legislation on Commonwealth agencies which have ister and Cabinet have all joined the Council in the penalties attached to compel compliance. The project past six months. Professor John McMillan, as Com will focus on those powers of agencies that require the monwealth Ombudsman has also recently joined the production of documents and answers to questions, Council in an ex officio capacity. where the decision to exercise the power does not involve an application to the courts. Departing members in the past six months include Mr Bill Blick PSM, Inspector-General of Intelligence and The project’s principal objective will be to determine Security, Ms Christine Charles, Group Executive, whether greater consistency in these powers across External Affairs, Newmont Australia and the former government is either desirable or achievable. It will Commonwealth Ombudsman, Mr Ron Mcleod AM. also consider the accountability mechanisms associated with the exercise of coercive investigative powers and Further information is available from the the protections available to individuals against whom Administrative Review Council’s website at such powers may be exercised. .

The Council anticipates that a discussion paper will be produced outlining the current range of coercive inves tigative powers conferred on Commonwealth agencies Family Law and the issues surrounding the possibility of establish Council ing a model set of coercive investigative powers. Pathways References Procedural discretions of Committees review tribunals Guidelines: The Family Law Council and the Family The Council has commenced research into aspects of Law Section of the Law Council of Australia recently procedural discretions of review tribunals, which have finalised a draft of the Best Practice Guidelines for been the subject of legislative innovation in recent Lawyers Doing Family Law Work and distributed years. This paper is focussing on three areas of tri copies to a range of interested persons and organisa bunal discretion, time limits, standing and stays of tions for consultation. decisions.

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This Pathways recommendation was provided as a ref reference concerning issues relating to relocation erence to the Family Law Council, to be undertaken as cases. There have been significant developments in a joint enterprise with the Law Council of Australia, relation to the operation of the paramountcy principle by the federal Attorney-General. in the context of relocation cases culminating in a recent High Court decision U v U (2002) 191 ALR 289. The joint Committee agreed to take as a model a recently released publication from the Law Society of Parliamentary inquiry—joint custody: The Coun the United Kingdom, Family Law Protocol (2001). The cil will be formulating its position with respect to the Committee obtained the Law Society’s permission to inquiry launched by the House of Representatives’ use the Family Law Protocol as a template and sub Standing Committee on Family and Community stantially adapted its content to reflect Australian cir Affairs on 24 June. Of considerable interest to the cumstances. Council is whether, as set out in the terms of refer ence, there should be a presumption that children will Indigenous child-rearing practices and kinship spend equal time with each parent and if so, in what obligations: The Council is finalising a letter of circumstances such a presumption could be rebutted. advice to the Attorney-General which makes recom mendations relating to the recognition of fundamental Further details of the Family Law Council’s elements of Aboriginal and Torres Strait Islander work program are available on its website at family structures in the context of the mainstream . family law system. The Council has taken into account the work being New South Wales done by the Family Court of Australia through its Indigenous Consultant’s Programme, and the effect Law Reform this has had in terms of positive education of the Court, government, Aboriginal and Torres Strait Commission Islander peoples and the public at large. Cross-examination in Child representation: The Council is finalising a report to the Attorney-General which makes recom sexual offence trials mendations targeted at clarifying the role of child rep resentatives in family law proceedings. The report will In July 2003, the New South Wales Law Reform Com take into account the Family Court’s recent promulga mission released Report 101 on the questioning of com tion of Practice Guidelines for Child Representatives. plainants by unrepresented accused in sexual offence It will also make recommendations concerning trials. The report, in response to a reference from the national training standards for child representatives. Attorney-General in March 2002, follows extensive consultation, and evaluates the law and practice in other jurisdictions. Other references The right to a fair trial is a fundamental element of

The Paramountcy Principle: This principle is con the criminal justice system. This includes testing, by tained in s 65E of the Family Law Act and provides, cross-examination, the prosecution’s evidence. Nor ‘In deciding whether to make a particular parenting mally, the accused’s lawyer will conduct the cross order in relation to a child, a court must regard the examination, but, where the accused does not have a best interests of the child as the paramount considera lawyer, the accused is entitled to cross-examine wit tion’. nesses in person, including the complainant. In a sexual assault trial, this means that alleged offenders The dimension of the project increased recently when could cross-examine their alleged victims and cause the Attorney-General approved an additional term of them great distress.

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The report recommends that: The report proposes that the penalties generally avail able in sentencing corporations should (in addition to, • accused persons should not be able to cross-exam or in place of, a fine) include: ine complainants in sexual offence trials in person; • Incapacitation orders, which wind up a corpora • a legal practitioner must cross-examine the com tion (‘dissolution’), or prevent a corporation from plainant where the accused is unrepresented; and carrying out certain commercial, trading or invest • where the accused fails to provide for a lawyer, the ment activities or from participating in government court can order the Legal Aid Commission to pro contracts (‘disqualification’); vide assistance. • Correction orders, also referred to as ‘probation The report further recommends that all complainants orders’, which require a corporation to alter its sys in sexual assault trials should be able to give evidence tems, policies and procedures (its ‘corporate cul by means of closed circuit television. ture’) to prevent re-offending; or to undertake inter nal discipline measures; The Attorney-General announced that he would imple ment the Commission’s report, and legislation was • Community service orders, which direct a corpo introduced into the Parliament on 2 September 2003. ration to undertake or contribute to work or pro The legislation was fast-forwarded through the Parlia jects that benefit the community or a part of the ment, and the Criminal Procedure Amendment (Sexual community; and Offences Evidence) Act 2003 (NSW) commenced opera tion on 3 September 2003. While the Act implements • Publicity orders, which involve the publication of the substantive recommendation of the Commission, a conviction (including information about the there are some significant departures from the Com offender, the offence and its consequences, and any mission’s recommendations. The Act allows the Court other penalty imposed) to a specific group of people to appoint a person to examine a complainant, but this or the general community. person does not have to be a legal practitioner, as the Commission recommended. Furthermore, the person Contempt by publication appointed by the Court may not give any legal or other advice to the accused person. A major report, Contempt by Publication (Report 100), Sentencing: corporate was tabled in the New South Wales Parliament by the Attorney-General on 16 September 2003. offenders The report recommends that media outlets, journalists Report 102, Sentencing: Corporate Offenders, was and radio broadcasters who publish material about released in September 2003. The report focusses on pending court cases should not be liable for contempt the extent to which corporations, being legal abstrac unless they are at fault. tions without a physical presence, can be punished for breaking the criminal law. Unlike its officers or One way to achieve the right balance in the law of con employees, a corporation cannot be imprisoned. In tempt is by formulating a more precise test of liability practice, the fine is the major sentence imposed on cor for contempt. Another is by reversing a long line of porations in New South Wales. court decisions making members of the media guilty of contempt even if they did not know that there was a The report recommends that courts should generally case pending in court, which might be affected by their have the power to impose additional or alternative publication or broadcast. sanctions on corporations. At present, this power is only available in the context of specific statutes, princi The report endorses a proposal by the NSW govern pally concerned with environmental protection, occupa ment to make media organisations contribute to the tional health and safety, and fair trading. costs incurred by the accused, the government and

ssue 83 2003 ~ Page 79 Reform Women in the law others where a court case is discontinued as a result of Legal, prejudicial media publicity. Constitutional & However, under the Commission’s recommendations, publishers and others responsible for the publication Administrative must be prosecuted and convicted for contempt before they can become liable for the costs. Moreover, it must Review be proved that the contemptuous publication was Committee (QLD) either the sole or a substantial cause of the termina tion of the trial. Consequently, the situations in which a costs order could be made would be rare. Queensland Ombudsman

The report also extends, as well as defines more pre The Committee’s responsibilities include monitoring, cisely, the circumstances in which journalists and reviewing and reporting on the performance of the members of the public may obtain access to documents Queensland Ombudsman’s functions. In fulfilment of used in court proceedings. This enables the public to this responsibility, on 29 April 2003 the Committee exercise its right to scrutinise and criticise courts and met with the Queensland Ombudsman to discuss court proceedings. On a practical level for the media, issues relating to the office. These issues included it enables better reporting of legal proceedings. complaint closure rates, the effect of office restructur ing, and budgetary issues. Other developments On 6 June 2003, the Committee tabled a report to Par liament on its meeting.

In the next six months, the Commission will publish the following consultation papers or reports: Entrenchment of the • Review of the Community Justice Centres Act 1983 Queensland Constitution (Discussion Paper)

• Sentencing: Young Offenders (Report) In its February 2000 report, the Queensland Constitu tional Review Commission recommended referendum • Relationships and the Law (Report) entrenchment of the most fundamental aspects of the • Legislative Sentencing (Discussion Paper) Queensland Constitution, and that certain procedural • Eligibility of Jurors: Should People Who are Blind requirements should apply to all sections of the Consti or Deaf be Able to Serve on Juries? (Discussion tution. The Committee is currently considering these Paper) recommendations.

• Surveillance (Report) On 27 August 2002, the Committee tabled a paper con • Informed Consent to Medical Treatment by Minors taining proposals for comment in relation to this issue. (Issues Paper) The paper called for public comment on the Commit tee’s proposals. The Committee plans to report to the Details of projects and publications of the New Parliament in August 2003. South Wales Law Reform Commission can be found at . Hands on Parliament

One of the recommendations of the Queensland Consti tutional Review Commission was that the Committee

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‘conduct an inquiry into the possibility of special repre Due to the short period of time the amended regime sentation for Aborigines and Torres Strait Islanders’. had been in operation when the Committee reported, The Committee broadened the scope of this inquiry to the Committee recommended that the LCARC review Aboriginal and Torres Strait Islander people’s partici the new fees and charges regime in a year to assess pation in democratic processes and released an issues whether it is operating fairly and efficiently. paper, Hands on Parliament—Inquiry into Aboriginal and Torres Strait Islander Peoples’ participation in In late 2002 the Committee sought to gather informa Queensland’s democratic processes, in December 2002 tion to inform its review of the new regime. After to stimulate public submissions to its inquiry. reviewing information gathered from various sources, the Committee has decided that there is insufficient From March 2003 to July 2003 the Committee engaged information regarding the operation of the new regime in an extensive program of face-to-face consultation for it to proceed with its review at this stage. How throughout Queensland by way of public meetings and ever, the Committee intends to reassess this position meetings with key bodies and individuals. The Com in the short term. mittee has tabled submissions made to the inquiry and a summary of consultation. The Committee plans to Information on Committee inquiries and reports report to the Parliament in September 2003. is available at or by contacting the Com mittee’s secretariat on (07) 3406 7307 or Treaty making — review of lcarc^parliament.qld.gov.au. tabling procedure Tasmania Law The Committee’s predecessor conducted a review into the role of the Queensland Parliament in treaty Reform Institute making. As recommended by that Committee, the Pre mier tables in Parliament advice from the Common Adoption by same sex wealth Parliament’s Joint Standing Committee on couples* • Treaties concerning proposed treaty actions under negotiation and tabled in the Commonwealth Parlia The Institute released its final report on this topic on ment, together with other information relating to the 19 May 2003. This followed the release of an issues proposed treaty actions under review. paper in February considering whether the current The current Committee recently reviewed this proce law should be amended so that same sex couples are dure and, in its report tabled in July 2003, recom eligible to apply to adopt. More than 1,300 responses mended that in the absence of any evident difficulties to the issues paper were received, many of them took the procedure continue. the form of duplicate letters. Of the original responses, 134 were against any change to the law and 61 in were in favour. Review of the FOI fees The final report considers: and charges regime • changing family structures and attitudes to same

The Committee finalised a comprehensive review of sex parenting; Queensland’s Freedom of Information Act 1992 in • adoption law, process, trends and rates; and December 2001. As part of its review, the Committee • whether same sex couples should be eligible to considered the resource implications of the Act for adopt. agencies and the Act’s regime of fees and charges. However, just prior to the Committee tabling its The Law Reform Institute carefully considered the report, a new fees and charges regime commenced. arguments put forward in response to the issues paper.

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Despite the limited practical impact of changes the and that no qualifications be required in addition to issue is clearly an emotive one as the volume and tone the current qualifications. of the responses to the issues paper demonstrate. While most of the responses opposed same sex adop The Institute did not recommend allowing same sex tion, it is the Institute’s view that to continue to deny adoption in the ‘known child’ category only. The Insti same sex couples eligibility to adopt is not in the best tute agreed with those respondents to the issues paper interests of children and unjustifiably and unfairly dis who argued that to so limit adoption would not address criminates against gay and lesbian couples and their the issues of stigmatisation of lesbian and gay people children. The beliefs of those opposing same sex adop and their children in particular, nor the issues of tion are no doubt strongly and sincerely held. How human rights and discrimination. ever, underlying this opposition is a view that homo Since the release of the Institute’s final report the Tas sexuality is wrong and unnatural, an inability to manian Attorney-General has introduced the Relation divorce the issue of sexual orientation from that of par ships Bill 2003 and the Relationships (Consequential enting, and fear that same sex parenting poses a Amendments) Bill 2003 to Parliament. The latter Bill threat to society. It is no longer the majority view that would amend the Adoption Act to allow same sex cou homosexuality is wrong and unnatural and the sugges ples to adopt where they have been the parties to a tion that same sex parenting poses a social threat is significant relationship, which is the subject of a deed implausible. Adoption decisions are made on a case- of relationship registered under the Relationships Act by-case basis and gay and lesbian couples should be 2003. However, contrary to the recommendations of evaluated individually as suitable parents for a partic the Institute, the Bill limits the eligibility of same sex ular child rather that being denied eligibility because or unmarried couples to adopt to the ‘known child’ cat of their sexual orientation. egory. This is done by providing that an adoption

The Institute recommended that: order may not be made in favour of a person who is in a significant relationship unless the other party to the • section 20(1) of the Adoption Act 1988 (Tas) be relationship is the natural or adoptive parent of the amended to permit a couple to apply for adoption child proposed to be adopted, or either party to the regardless of the gender or marital status of the relationship is a relative of the child proposed to be partners making up the couple; adopted.

• the profile of potential adoptive parents include the As of August 2003, the Bills had been passed by the sexual orientation of the adoptive couple; Tasmanian House of Representatives and were due for imminent consideration by the Legislative Council. • the preferences of relinquishing parents as to sexual orientation of the adoptive couple be taken into account in the selection of adoptive parents; The forfeiture rule

• both step-parent and relative adoption should be This project considers the operation of the common law available to the same sex partner of a parent or rel forfeiture rule and the need for the enactment of legis ative of a child; lation to modify this operation. The forfeiture rule can be described as a fundamental principle of justice, • the Status of Children Act 1974 (Tas) s 10C be embodied in one form or another in most—if not amended to apply the conclusive presumption of all—legal systems. In relation to succession law, the parenthood to the same sex partner of a woman principle can be said to embody the view that if a who, with her partner’s consent, conceives a child person is criminally responsible for the death of as the result of an artificial fertilisation procedure; another, and that death is a material fact in the vest and • ing of property in favour of that person, then the inter • that the length of the relationship of adoptive cou est in that property is forfeited. The effect of the rule ples remain at three years for eligibility to adopt is that the killer cannot inherit from the deceased

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either by will or intestacy, nor can a benefit be Endnotes obtained over property through the right of survivor ship. A person ‘shall not slay [their] benefactor and 1. Hall v Knight and Baxter [1914] P 1 at 7 per Hamilton LJ. thereby take [their] bounty’.1 2. Permanent Trustee v Freedom from Hunger Campaign (1991) 25 NSWLR 140; Dunbar v Plant [1997] 4 All ER 289. Over time the forfeiture rule has been modified. Cir 3. Public Trustee v Evans (1985) 2 NSWLR 188; In Re K cumstances in which the courts have found that the [1985] Ch 85. forfeiture rule does not apply (or at the very least 4. (1994) 33 NSWLR 269 per Meagher JA at 299. should be modified) include deaths resulting from sui 5. K Mackie ‘The Troja Case—Criminal Law, Succession and cide pacts2 or in response to serious domestic violence Law Reform’ (1998) 5 Canberra Law Review 177. (although not necessarily amounting to self-defence).3 While most would see such modifications as just, the common law took a sharp right turn in 1994 when it was held by the New South Wales Court of Appeal in Victorian Law Troja v Troja4 that ‘all felonious killings are contrary Reform to public policy and hence, one would assume, uncon scionable’. The project examines whether this decision Commission has the potential to result in injustice when women lose any entitlement to the property left by a deceased husband when they have killed following a history of Sexual offences domestic abuse. New South Wales, the ACT and the UK have introduced legislation to alter this effect. As noted in the last edition of Reform, the Commission is currently undertaking a comprehensive reference in It has argued that ‘other jurisdictions would be best to relation to sexual offences. In June 2003, the Commis turn to legislative action to address this problem’ and sion published its interim report on Sexual Offences. recommended that the forfeiture rule be placed on the The report makes recommendations for legislative, agenda for detailed consideration by the National administrative and procedural changes to ensure that Committee for Uniform Succession Laws,5 however the criminal justice system takes sufficient account of this recommendation has not been followed. the needs of complainants in sexual offences cases. The recommendations span the entire criminal justice Different options for the possible legislative reform of process, from disclosure to reporting, interviewing and the rule in Tasmania are discussed by examining the charging, through to prosecution and complainants’ different forfeiture acts in NSW, the ACT and the UK experiences in court. and the Draft Succession (Homicide) Act proposed by the New Zealand Law Commission in 1997. Giving evidence: The Commission’s consultations

The Board of the Institute agreed to undertake this revealed widespread dissatisfaction with the criminal project in May 2003, following its proposal by an justice process among complainants and organisations undergraduate student of the University of Tasmania, that provide support to victims of sexual assault. The Ben Bartl. This is particularly pleasing as one of the report contains recommendations to reduce the trauma aims of establishing the Institute and basing it within that complainants often experience in giving evidence. the Faculty of Law at the University was to stimulate The major recommendations include that: and provide further opportunities for staff and stu dents to be actively involved in the process of law • closed-circuit television (CCTV) should be the stan reform. Mr Bartl is assisting in the preparation of an dard way in which complainants in sexual offences issues paper on this topic, which will be released later cases give evidence at committal or trial; in the year.

For further information on the Institute or any • a person charged with a sexual offence should be of its projects visit prohibited from personally cross-examining com . plainants and other ‘protected witnesses’;

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• there should be further restrictions on the admissi establishing a specialist sexual offences jurisdiction in bility of evidence about complainants’ prior sexual Victoria, similar to the specialist court, to try sexual history; and offences against children currently being trialled in New South Wales. • there should be limitations on the admissibility of evidence of the contents of a complainant’s confi The Commission is undertaking extensive consultation dential counselling communications. in relation to the recommendations contained in the interim report, as well as further legal and empirical The needs of children: Child complainants face par research. A final report is planned for the first half of ticular barriers to participation in a criminal justice 2004. system that was designed for adults. The report makes a series of recommendations designed to improve the ability of children to participate, including that: Eligibility for assisted

• specialist child witness support should be provided reproduction and to child witnesses and their families; adoption

• child witnesses should be able to give their evi dence in its entirety at a special hearing in advance The Commission has recently released a consultation of the trial at which the judge presides and both paper for its reference relating to eligibility for prosecution and defence are present. The evidence assisted reproduction and adoption. The Commission should be recorded and introduced at the eventual has been asked to consider the desirability and feasi trial as the child's evidence. This process should bility of changes to the Infertility Treatment Act 1995 also be available for witnesses with impaired (Vic) and the Adoption Act 1984 (Vic) to expand eligi mental functioning (a similar process operates suc bility criteria for both assisted reproduction and adop cessfully in Western Australia); tion. In addition, the reference involves some issues in relation to altruistic surrogacy, including clarification • children should be deemed competent to give sworn of the legal status of any child born of such an evidence if they understand the obligation to tell arrangement. The terms of reference require the Com the truth; and mission to take into account a range of factors, includ ing social, ethical and legal issues, with particular • hearsay evidence of children should be admissible regard to the best interests of children. The Commis in sexual offences cases, where the court is satisfied sion has also been asked to take into account the that the evidence is of sufficient probative value to public interest and the interests of parents, single justify admission. people, people in same-sex relationships, infertile The culture of the criminal justice system: Educa people and donors of gametes. tion that fosters cultural change within the criminal justice system is an essential component of the refer This reference is linked to earlier changes to the law to ence. The report recommends: remove discrimination against people in same-sex rela tionships. In its March 1998 report, Same Sex Rela • continuing education for prosecutors in sexual tionships and the Law, the Equal Opportunity Com offences cases; and mission of Victoria identified the issues of access to

• that the Judicial College of Victoria provide a pro reproductive technology and adoption for people in gram for judges and magistrates to facilitate dis same-sex relationships as issues requiring further con cussion of issues that commonly arise in sexual sideration and community consultation, before any offences committals and trials. changes are proposed. The Infertility Treatment Act 1995 and the Adoption Act 1984 were not amended in A specialised sexual offences jurisdiction? The 2001, when 50 pieces of Victorian legislation were interim report also discusses the possible advantages of amended to recognise same-sex relationships.

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This reference provides an opportunity for the commu appropriateness of reforming, narrowing or extending nity to be consulted on and to influence the law relat existing defences or partial excuses to homicide includ ing to access to assisted reproductive technology and ing self-defence, provocation and diminished responsi adoption. The consultation paper explains the current bility. As part of its review, the Commission has also eligibility criteria for both assisted reproductive tech been asked to consider options for procedural reform nologies and adoption, and canvasses the issues raised and also whether plea and sentencing practices need to by expanding eligibility criteria. This paper asks Vic be made more flexible. torians to respond to the questions and issues raised both by the current system and by possible law reform The options paper further explores the historical devel in this area. opment of particular defences, the legal and social con texts in which defences and partial excuses to homi The current eligibility criteria have the most direct cide are raised in Victoria and their current operation, effect on people who are single or in same-sex relation together with a number of options for reform. ships and who wish to have children. Some people Defences and partial excuses considered include provo who are not eligible for treatment in Victoria may seek cation, self-defence, and infanticide as well as defences the assistance of services interstate where different eli open to accused with ‘impaired mental functioning’ gibility criteria, or no eligibility criteria at all, apply. such as mental impairment, diminished responsibility Others may remain in Victoria and have children and automatism. Possible evidentiary and procedural through donor procedures without going through the changes to improve the operation of existing defences clinic system. The legal status of donors of gametes are also discussed. and of parents of children conceived in these ways is one of the issues that will be considered in this The findings of research conducted by the Commission inquiry. into homicide prosecutions in Victoria proceeding beyond the committal stage over the period 1 July One of the key adoption issues concerns ‘known’ child 1997 and 30 June 2001 have been referred to exten adoption: that is, adoption of a child to whom the sively in the paper. This research has assisted the person wishing to adopt is already in the position of Commission to develop a richer understanding of the parent. Where a lesbian couple has a child, for exam extent to which men and women who kill rely on par ple, the woman who has not given birth may wish to ticular defences, the comparative success of men and adopt the child. The inquiry, however, is not limited to women in relying on these defences, and the circum this aspect of adoption, but covers all eligibility criteria stances in which these defences are successfully raised in relation to adoption, including inter-country adop in Victoria. tion. Key issues explored in the options paper include the There is considerable community interest in this refer extent to which existing defences reflect community ence, and the Commission has begun to brief inter standards of culpability and operate fairly in response ested groups on the scope of the inquiry and to invite to the different circumstances in which men and people to make submissions. During this consultation women kill. For instance, there have long been ques phase, the Commission will encourage broad commu tions raised about the ability of current defences, and nity involvement as well as contributions from those particularly self-defence and provocation, to ade communities most affected by the current laws. quately take into account the circumstances of women who kill in the context of domestic violence. The options paper discusses possible reforms to these exist Defences to homicide ing defences and arguments for and against particular reforms. The Commission has released an options paper for its reference examining the law relating to defences and Consideration is also given in the paper to the intro partial excuses to homicide. Under the terms of refer duction of a partial defence of diminished responsibil ence this examination is to include consideration of the ity for accused with ‘impaired mental functioning’.

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While this defence is not currently available in Victo community research consultations in the Perth metro ria, it has been introduced in a number of other Aus politan area. tralian jurisdictions. The Commission’s homicide pros ecutions study found that in a significant number of Since February 2003 the Commission has carried out cases the person charged with homicide was suffering extensive community consultations, involving travel to from a mental condition that did not amount to a various remote and regional areas within Western mental illness sufficient to form the basis of a mental Australia. To date the Commission has visited the impairment defence. The introduction of diminished Kalgoorlie/Warburton region, the Pilbara region, Ger- responsibility in Victoria would provide these accused aldton, Carnarvon and Broome. It is anticipated that with an alternative defence. by the end of 2003 the Project Team and the Commis sioners will have also visited Wiluna, Meekatharra, The Commission will be using the options paper as a Kununurra and the Great Southern region. The pur basis for more detailed consultations. A final report pose of these visits is to consult and receive submis will be released by the Commission in 2004. sions on the matters set out in the terms of reference. The information received will then be used to assist Publications and further information about the the drafting of a series of background papers to be activities of the Victorian Law Reform Commis published throughout the remainder of 2003 and into sion are available at 2004, with the final report setting out the Commis sion’s recommendations to be published some time in 2005. Law Reform Commission of Contempt

Western Australia The Commission’s reference on the law of contempt has now reached a conclusion, with discussion papers Aboriginal customary having been published and distributed on the three topics that form the terms of reference. The various laws detailed submissions received from major stakeholders and interested parties have helped the Commission to Work on the Law Reform Commission’s complex and finalise its recommendations and to complete the final historic reference on Aboriginal customary laws has report which will be published and distributed in the continued throughout 2002/2003. The project aims to coming months. The three discussion papers and the canvass issues relating to the recognition of traditional final report will also be available as a complete set on Aboriginal laws and customs within the Western Aus CD-Rom for electronic access and ease of distribution. tralian legal system and provides the Commission with the opportunity to revisit the work of the Australian Judicial review of admin Law Reform Commission (The Recognition of Aborigi nal Customary Laws (ALRC 31)) in light of subsequent istrative decisions developments in law, research and policy as they relate to Western Australia. On 6 September 2001, the Commission received new In 2002 the Commission completed its pre-consultation terms of reference from the Attorney-General, to phase in which members of the Project Team visited inquire into and report on the inadequacies and defi all parts of the State to enhance awareness of the pro ciencies of the current law and procedures pertaining ject and to seek permission to conduct further research to the judicial review of administrative decisions, and consultations on Aboriginal land. In November and to make recommendations for reform. In June 2002 December 2002 the Commission conducted successful the Commission published its discussion paper, Judi

Reform ssue 83 2003 ~ Page 86 Women in the law cial Review of Administrative Decisions. The paper ence’s work that has been developed over the previous was well received and prompted a number of informa year. The Conference is largely a volunteer organisa tive submissions from the legal profession and the tion and its strength lies with its Commissioners who public. The final report was tabled in Parliament on come from all walks of the legal community including 25 February 2003. A formal launch of the report took private and corporate practice, the criminal defence place on 27 March 2003 and was attended by various bar, the academic community, government legal ser members of the judiciary, the legal profession and vices and the judiciary. academia. The final report has since been published and distributed and is available on the Commission’s The work behind the scenes that takes place between website. the annual meetings is most critical to the success of the Conference. Project work is carried out through Publications of the Law Reform Commission of working groups whose members (mainly volunteers) Western Australia can be viewed online at are drawn from as many jurisdictions as possible and . reflect both bi-jural and diverse experiences. It is this collective wisdom and experience that contribute to a valuable end product.

Uniform Law Although the Conference receives some funding from federal, provincial and territorial governments of Conference of Canada, the Commissioners serve independently and Canada the sponsoring governments are not bound to adopt any of the recommendations passed by the Conference.

Since little has been written in Reform about the Uni As a testament to its value, many of the Conference’s form Law Conference, non-Canadian readers may find model and uniform acts and recommendations for it helpful to have a bit of background. The Conference, criminal law reform have been adopted in legislation. founded in 1918, has a proud history of work in Now in its 85th year of operation, the Conference is improving the laws of Canada. Its objective is to har proud of the role it has played in improving and shap monise the laws of the provinces and territories with ing Canadian law. each other and with federal laws enacted by the Par liament of Canada. It also makes recommendations The Conference sits in two sections: the Civil Law Sec for changes to federal criminal legislation based on tion and the Criminal Law Section. In some instances identified deficiencies, defects or gaps in the existing both the two sections will work together in a plenary law or based on problems created by judicial interpre session where their interests overlap. tation of existing law. As a national organisation in a country that embraces the legal traditions of both the Civil Law Section common law and the civil law, and which operates in two official languages, this is a daunting task but one which the Conference has cheerfully accepted. The main work of the Civil Law Section lies in the development of uniform legislation that is adopted and The Conference meets once a year in August for five recommended for enactment by the jurisdictions. In working days at a location that is rotated to give every the year 2000 the Section embarked upon an ambi province and territorial jurisdiction an opportunity to tious new project to modernise and harmonise act as host. In 2003, the Conference met in Frederic Canada’s commercial laws. This project, known as the ton. New Brunswick and in 2004 it will be held in Commercial Law Strategy for Canada, has garnered Regina, Saskatchewan. Normally, between 80 and 100 the enthusiastic support of Industry Canada, Justice Commissioners (delegates), representing each of Canada, and all provincial and territorial govern Canada’s 10 provinces and three territories as well as ments. It continues to gather support from business, the federal government, meet to discuss the Confer legal and consumer advocacy groups.

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The Section met in 2003 to consider ongoing proposals Joint Session and also new developments emanating from the Strat egy. These included proposals concerning uniform At its 2003 meeting, the two sections met to consider amendments to the Personal Property Security Act, a reports from working groups dealing with the extrater Uniform Franchise Act, Uniform Securities Transfer ritorial jurisdiction of police officers operating within Act, Public Inquiries, Uniform Enforcement of Money Canada but outside of the province or territory of their Judgments Act, Criminal Rates of Interest, Illegal Con appointment, and mandatory blood testing and disclo tracts, Documents of Title, Electronic Cross Border sure where there is a risk that a person has been Consumer Transactions, Uniform Enforcement of For infected with a communicable disease in the course of eign Judgments Act, Uniform Unclaimed Intangible their employment or while rendering assistance to Property Act, Security Interests in Intellectual Prop another. The report from the working group on extra erty, and Uniform Wills Amendment Act. territorial jurisdiction of police officers contained rec ommendations for a uniform Act. These were accepted At its 2003 meeting, the Conference identified a by the Conference, which adopted the Uniform Cross number of possible new projects. These include the Border Policing Act, which will be recommended to the question of standardisation of limitation periods, with jurisdictions for enactment. particular consideration to the issue of ultimate limita tion periods; the issue of forfeiture of property upon More information on the history and work of the dissolution of corporations, and in particular the Conference and its work may be found at its responsibility of the Crown when there are environ website at either: or mental concerns; implementation of uniform cost of . credit disclosure legislation in Canada and the issue of cross-border enforcement of non-molestation orders in domestic matters. Working groups will be reviewing Manitoba Law these matters over the next year and reporting to the 2004 meeting of the Conference. Reform Commission Criminal Law Section

The work of the Criminal Law Section varies to a Wills and succession degree from that of the civil side. As criminal law is a legislation federal matter, the Criminal Code and other statutes of interest to the Section already have course uniform Since 1974, the Commission has issued 10 reports on application across the land. Generally the work of the various aspects of succession legislation. Report 108 Section is focussed on resolutions proposing amend Wills and Succession Legislation (March 2003), how ments to the Criminal Code, to remedy procedural ever, is the first time that all of the relevant succession defects or in some cases to promote substantive change legislation, including The Wills Act, The Law of Prop in the law. The Section also provides a forum that erty Act, The Intestate Succession Act, The Marital gives jurisdictions an opportunity to share consultation Property Act, and The Dependants Relief Act has been papers and consult with the Section members on draft considered as a whole. positions. The Commission approached the project with a view to In 2003 the Section reviewed close to 60 resolutions. It ensure the integrity and relevance of the various suc also considered two discussion papers, one on inter cession statutes and that, as a whole, they operate as locutory appeal procedures and the other on sentenc effectively and harmoniously as possible. The Com ing issues. mission has made 77 recommendations for legislative amendment, highlights of which include:

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• reduction of the age at which a person can make a what may be the largest financial transaction of valid will from 18 to 16; their lives;

• prohibition of wills which exist only in electronic • the actual need for and value of title insurance in a form; Torrens title system;

• expansion of the Wills Act to include all require • the lack of regulation of title insurers; and ments for a valid will (currently the requirements • the impact of undiscovered and/or uncorrected are found in both statute and common law); and defects or problems in property boundaries, location • implementation of the Hague Convention on the of buildings, fences and other structures and the Law Applicable to Succession to the Estates of use of land. Deceased Persons. The Commission is pleased to be collaborating with the Alberta Law Reform Institute and Saskatchewan Law Life sustaining treatment Reform Commission on this project. Given the great similarity between our land titles systems and real The Commission received 23 submissions to its discus property conveyancing practices of the three provinces sion paper Withdrawing and Withholding Life Sustain and a general move in Canada towards greater unifor ing Treatment (June 2002). The Commission is now mity of law and practice and mobility of professionals, considering those submissions and working on its final a joint project on this issue was deemed worthwhile. report. The main challenge facing the Commission will be to achieve a fair balance between the autonomy and interests of both patients and health care Substitute consent to providers. medical treatment While the Commission does not have the resources to make its publications available online, the Dalhousie Manitoba does not have legislation specifying who may Health Law Institute’s End of Life Project has kindly give consent to medical treatment on behalf of a made the discussion paper available on its website at person who lacks capacity and who has not completed . mission is considering whether substitute consent leg islation, similar to that of Ontario and British Colum Title insurance bia, would be desirable in Manitoba. This project is on hold pending completion of the projects on withholding and withdrawing life sustaining treatment and title Title insurance is a joint project with the Alberta Law insurance. Reform Institute and the Saskatchewan Law Reform Commission. In the spring of 2002, the Minister of Justice and Attorney General wrote to the Manitoba Powers of attorney Law Reform Commission requesting a review of and recommendations on the issue of private title insurers. Title insurance is a recent addition to the real estate This is a joint project with the British Columbia Law conveyancing industry in Canada and the experience Institute, the Alberta Law Reform Institute and the in both Canada and the United States has raised con Saskatchewan Law Reform Commission. In February cerns about its potential impact on real property con 2003, representatives of the law reform agencies of the veyancing. In particular, the Minister raised issues four western provinces met to discuss collaborating in relating to the public interest including: a joint project or projects. The benefits of such an effort include promoting consistency and uniformity in • a potential risk for the general public who may not Canadian law and in combining our respective obtain independent legal advice when entering into resources, capacities and competencies to increase the

ssue 83 2003 - Page 89 Reform Women in the law profile of law reform agencies thereby encouraging Law Reform increased support for law reform. Commission of The inaugural project selected relates to powers of attorney and, in particular, the recognition between Nova Scotia jurisdictions of powers of attorney and the legal obliga tions and duties of attorneys. With an increasingly The 2002-2003 fiscal year (1 April 2002 to 31 March mobile and aging population, issues relating to ‘porta 2003), its 12th year of operations, was positive and bility’ of a power of attorney and the proper execution productive for the Law Reform Commission of Nova of an attorney’s duties will arise more frequently. Scotia.

As the Commission is presently engaged in two ambi In the [northern] summer of 2002, the Commission tious projects and has limited human and financial began work on a civil justice reform/access to justice resources, it will participate on the project advisory initiative, which consists of two distinct projects. One committee. The British Columbia Law Institute and project involves a comprehensive review of the Nova Saskatchewan Law Reform Commission will have a Scotia Civil Procedure Rules. The proposed project more active role in the project. envisages the Commission providing a secretariat, as well as substantive legal research and related assis tance. In December 2002, the Commission submitted Implementation a funding request to the Nova Scotia Department of Justice. By the end of the fiscal year, there had been no indication as to whether the request for funding The Commission was pleased to see three of its more would be successful. recent reports implemented through legislation at the last Session of the Legislature including: The second component, an access to justice project, is designed to address some of the issues which many • The Class Proceedings Act, SM 2001-2002, c 14 people believe negatively affect the civil justice system. (Class Proceedings, Report No 100, January 1999); For this project, the Commission sought financial sup

• The Fatal Accidents Amendment Act, SM port from both the federal Department of Justice and 2001-2002, c 13 (Assessment of Damages under the the Law Commission of Canada. While both of those Fatal Accidents Act for the Loss of Guidance, Care potential funding sources have responded positively to and Companionship, Report No 106, October 2000); the project concept, to date only the Law Commission of Canada has committed itself to concrete participa • The Legislative Assembly and Executive Council tion. The Law Commission of Canada agreed to fund Conflict of Interest Amendment (Conflict of Interest the Commission’s attendance at an access to justice Commissioner) Act, SM 2001-2002, c 49 (The Leg symposium organised by the Law Society of Upper islative Assembly and Conflict of Interest, Report Canada in May 2003. It is expected that further dis No 106, December 2000) cussions with the Law Commission of Canada will take place in August 2003, at the meeting of the Uniform The executive summaries of Commission reports Law Conference of Canada. No 97-108 are available, in English and French, on our website at In August 2002, the Commission distributed its final . report, Joint Tortfeasors and the Common Law Release Bar Rule. This report involved the little-known Copies of our reports are distributed to other common law distinction between a release and a law reform agencies and law faculty libraries in covenant not to sue, in the context of joint tortfeasors. the Commonwealth on a complimentary basis The Commission recommended that the Release Bar upon release. Additional copies can be obtained Rule should be explicitly abolished in its application to from Statutory Publications at all wrongdoers, as it serves no public good and could . lead to unfair results.

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In the latter part of 2002, the Commission began to ensure that the Commission and its work retained a study the issue of court-ordered structured settlements high profile within government, the Bar, the judiciary, in the context of personal injury damages awards. By legal academe, and the province as a whole. the fiscal year end, an advisory group for this project had held its first meeting, and the Commission had completed significant work on an issues paper. The Law Reform In January 2003, the Commission published a discus Commission of sion paper on builders’ liens in Nova Scotia. The Com mission’s proposals for reform included: Ireland

• the Mechanics’ Lien Act should be extended to apply to the provincial Crown; D N A databank

• guidelines for arbitration for a builders’ lien dis The Attorney General has requested the Commission pute should be added to the legislation; consider the issue of establishing a DNA databank in • trust fund provisions in the context of builders’ Ireland. Two specific matters have to be addressed: liens should be adopted; the broad and complex constitutional and human rights issues that may arise; and the more specific • the right of lien holders to seek information relative question of what classes of DNA profiles would make to their lien claims from owners and certain other up any database. The Commission is preparing a con parties should be expanded; and sultation paper. • the ability to shelter (‘piggy-backing’ on another lien claim that has been made in time) should be eliminated, and the Act’s title should be changed to DPP appeals the Builders’ Lien Act. The Commission is currently examining the question During 2002-2003 the Commission also completed pre of whether the Director of Public Prosecutions should liminary work relating to a discussion paper on reform be conferred with the power to appeal unduly lenient of the Province’s Wills Act. sentences from the District Court, with particular

In March 2003, the Commission and Saint Mary’s Uni attention to the use of the power of appeal from unduly versity in Halifax, Nova Scotia agreed to a cooperative lenient sentences in the Circuit Court conferred on the arrangement, which will allow both parties to pursue DPP under section 2 of the Criminal Justice Act, 1993. collaborative opportunities, assist the Commission in The Commission is also looking to other jurisdictions reducing its administrative costs, and enhance commu to examine how they avoid disparities in sentences in nity outreach by Saint Mary’s. the lower courts.

Although a public body created by statute, the Com Multi-party litigation mission has operated without government funding for the past two years. Since the spring of 2001, the Com (class actions) mission’s core funding has been entirely provided by the Law Foundation of Nova Scotia. The Commission The Commission has made provisional recommenda is in its last year of a three-year Law Foundation tions in a recently published consultation paper for grant. Without a restoration of provincial government legislation to introduce a new class actions procedure. funding, the Commission will likely not survive beyond This procedure would allow one or more representa its current fiscal year, which ends on 31 March 2004. tives to sue on behalf of themselves and the members To help prevent closure of the Commission, in 2002 of a class of persons who have a similar claim. In 2003 staff made significant efforts—through correspon other jurisdictions class action procedure has been a dence, meetings, presentations, and news releases—to useful vehicle for civil rights and environmental reme-

Issue 83 2003 ~ Page 91 Reform Women in the law dies. Any settlement reached or judgment secured which is currently applied in Ireland, should continue would bind all the parties in the class action. to apply in either its present form or some variation thereof, or whether a version of the objective test, which is applied in every other common law jurisdic Judicial review procedure tion, should be introduced into Irish law. A further consultation paper is being prepared in relation to The Commission has published a consultation paper legitimate defence in cases involving homicide. setting out a number of provisional recommendations with regard to both conventional judicial review and the increasing number of statutory schemes for judicial Corporate homicide review. Among the issues covered are the need for a leave stage, time limits, costs, case management, and A consultation paper is being prepared which deals the establishment of a single, unified order for judicial with the liability of corporations for the death of review. human persons. It is widely perceived that the law does not deal appropriately with corporations, and the persons who control them, in circumstances where cor Public inquiries porate wrongs result in death.

The Commission published a consultation paper on the subject of public inquiries in March 2003. In recent Court poor box years, such inquiries have been established in Ireland to inquire into various matters of public concern. The A consultation paper is being prepared on the court most important are conducted under the auspices of a poor box. This is a procedure that has been adopted by British (pre-Independence) statute, the Tribunals of the courts, apparently without statutory support. Fol Inquiry (Evidence) Act 1921. The Commission’s paper lowing a conviction, a District Court judge may decide includes but goes beyond this legislation. it is not appropriate to enter a conviction and in such circumstances, the defendant is not convicted on the basis that a contribution is made to the court poor box, A revenue court and a the content of which is then given to various charities. fiscal prosecutor Concerns have been expressed as to the need to ensure equal treatment for offenders from different economic backgrounds, and also as to the lack of accountability The Commission has recently published a consultation regarding the use of the funds. paper pursuant to a reference from the Attorney Gen eral. The main recommendations are: that the recent changes in arrangements for the prosecution of rev Restorative justice enue offences should be given a trial period to prove A consultation paper on restorative justice and alter their efficacy; a specialised civil revenue court should natives to custodial sentencing is in its early stages of not be established as the current systems offer exper preparation. Restorative justice is effectively a prob tise, accessibility and efficiency; taxpayers should be lem-solving approach to crime, involving the parties able to appeal penalties to the Appeal Commissioners themselves and the community generally. It seeks to and in the Circuit Court. attend to the needs of the victim and to try to reinte grate the offender into the community and thus pre Criminal law and vent re-offending. procedure e-Conveyancin g A consultation paper, examining the plea of provoca tion, is in the course of preparation. The principal During 2002, the Commission reviewed conveyancing issue to be determined is whether the subjective test, law and practice in areas where this could lead to sav

Reform ssue 83 2003 - Page 92 Women in the law ings for house purchasers. In the light of the Irish Gov Law Reform and ernment’s commitment to e-Government in the 21st century, consideration is now being given as to how Development technological developments could substantially reduce the time taken in conveyancing transactions. Commission of Namibia Landlord and tenant

During 2001, the Commission set up a Working Group Report on activities from on all aspects of landlord and tenant law. The Com 1992 to 2002 mission published its first consultation paper on Busi ness Tenancies in March 2003. A report on the activities of the Commission from 1992 to 2002 was tabled in the National Assembly during Law and the elderly September 2003.

Given the unsatisfactory state of the current mecha Implementation nisms available to protect the elderly in Ireland, the Commission is recommending the introduction of a The Commission published two major reports in the new system for their protection. This will replace the past few years. Its Report on the Law Pertaining to outdated Wards of Court system, and put in its place a Rape (July 1997) culminated in the Combating of Rape system of Guardianship. When a Guardianship Order Act, 8 of 2000. As a result of the Report on Domestic is made, a Personal Guardian will be appointed to the Violence (December 2000), the Combating of Domestic elderly person. A Public Guardian will be introduced, Violence Act was expected to be promulgated by the who will have the responsibility to protect and vindi time of publication. cate the rights of elderly people.

Rights and duties of Succession and estates cohabitees The Commission is committed to round-up its consul tations and to publish its report, with recommenda The Commission is examining the law in relation to tions to the Minister of Justice, towards the end of the rights and duties of cohabitees. The question 2003 to enable Parliament to comply before 30 June (which has already been faced in some particular 2005 with a judgment of the High Court delivered on areas, like tax and welfare) is whether the law should 14 July 2003 (Berendt case; no (P) A 105/2003) in recognise this relationship. The issue has various which existing pre-Independence legislation was legal implications in the field of: rights to and transfer declared unconstitutional. of property; enduring powers of attorney; life assur ance; succession rights; and provision for children. The pre-Independence law (Namibia became indepen dent in 1990) pertaining to succession and estate mat The Commission’s publications are available ters still discriminates on the basis of race. A 1928 online at . statute still determines which law of intestate succes sion applies to black persons and it further provides for the administration of such intestate estates by magistrates instead of by the Master of the High Court, as is the case with all other estates. The Com mission will make recommendations on issues, such as:

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• customary law with regard to intestate succession Other projects as well as the administration of estates; Other ongoing projects of the Commission pertain to: • some aspects of matrimonial property systems (an

interim Report on Uniform Default Matrimonial • publications; Property Consequences of Common Law Marriages • public gatherings; (Repeal of section 17(6) of Native Administration Proclamation, 1928 (Proclamation 15 of 1928)) will • codification of the criminal law; be published during August 2003.); • compensation to victims of crime;

• codification of the general law of intestate succes • criminal defamation; sion; • obsolete statutes; and • protection of the interests of children and surviving • consumer issues. spouses;

• decentralisation of the administration of estates by the Master of the High Court; New Zealand Law

• some aspects with regard to wills; and Commission

• the position of children born out of wedlock as well as adopted children. Dispute resolution in the Family Court Customary law marriages On 25 March 2003 the Law Commission submitted its review of Dispute Resolution in the Family Court to the A draft Bill providing for the full legal recognition of Minister. The government reference arose following customary law marriages and the registration thereof widespread criticism in recent years of the Family as well as the application of Namibia’s Married Per Court, a specialist court first established in New sons Equality Act, 1996 (Act No 1 of 1996) (which Zealand in 1980. Criticisms included that the system resulted from a report of the Commission), to such contained gender bias; did not accommodate Maori marriages, was during the past two years discussed by values and practices; took far too long to resolve dis the Commission with traditional leaders. The com putes; and that family court professionals lacked ade ments of other stakeholders were also solicited. The quate skills and training. The reference required the Commission will now consider the results of this con Law Commission to consider what changes, if any, sultation process and will thereafter publish its report, were necessary and desirable in Family Court admin with recommendations to the Minister of Justice. istration, management and procedure.

Following initial consultations the Commission pub Divorce lished a preliminary paper. It received 126 submis sions on this from individual Family Court clients and The main issue to be considered under this project is to representatives of most professionals who work there. bring Namibia’s law on divorce in line with the latest It also consulted further with community client groups developments in the world, in particular to replace and professionals. Some of the recommendations that divorce based on fault with divorce based on irretriev were ultimately made are set out below. Many others, able breakdown, and to simplify the divorce process. not mentioned here, concerned administrative and The Commission is awaiting comments on a discussion management reforms aimed at impacting positively document (with a draft Bill) from various stakeholders. upon the speed and smoothness of the Court’s opera tion.

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Maori participation: Despite the guarantees under • Family Court publications should be designed to the Treaty of Waitangi of a partnership between Maori represent men’s and women’s experiences; and and the Crown and that Maori customs and cultural • gender issue education and training programmes values would be protected, indications from research should be incorporated into the training of all those and consultations are that the Family Court is experi working in the Family Court and efforts be made to enced by Maori as a monocultural pakeha (New encourage equal numbers of qualified men and Zealander of European origin) forum where personnel women among those employed in or contracted to are unaware of tikanga Maori; where Maori processes the Family Court. for dispute resolution have no place and where many personnel show ignorance in even pronouncing Maori The issue of openness of the court would be addressed correctly. in the Structure of the Courts project.

In response the Law Commission recommended that Counsel for the child: Criticisms were made that as far as possible, qualified Maori service providers be counsel for the child often does not meet with the contracted to work with Maori so that Maori clients child, or meets rarely; they do not have the skills to do can choose these services; standard introductory proce the job properly; that they form biases against one dures complying with tikanga Maori should be intro parent and that a system of child advocates would duced into the Family Court; and judges and other better serve the needs and interests of children. The court staff should be trained in these procedures. Leg Commission, after examination, rejected the latter islation should be amended so judges can, at their dis option as providing no greater advantage for the child. cretion, permit whanau (extended family members) to It also indicated that it was inevitable, on occasion, attend Family Court settlement conferences and hear that in doing their job properly counsel will advocate ings. Everyone working in the Court should be trained for one parent over the other. in Maori pronunciation and Maori cultural impera tives, to enable them to better serve Maori clients. However, the Commission recommended more compre hensive prerequisite training. Counsel should be Gender bias: Criticisms of a pro-feminist and anti required to have training in child development, family male bias were made by male interest groups against dynamics and techniques for interviewing children. all court players; namely judges, court staff, counsel Further they should undertake regular refresher lors, lawyers, psychologists and counsel for the child. courses to keep up-to-date on social research about Women in non-traditional roles also complained of children and families. Two current year long distance gender bias. The Commission reported that these per learning courses were identified as ideal—one being ceptions are of concern as they undermine the Court’s the postgraduate diploma in Children’s Issues and the integrity. It also noted that the closed, private nature other the postgraduate diploma in Child Advocacy. of Family Court proceedings has exacerbated these Both are run by the Children’s Issues Centre in perceptions of bias. However, there is no one answer Dunedin. In addition to this theoretical training, or solution to these complaints—because decisions are lawyers wanting to act as counsel for the child should discretionary it is impossible to point to bias as being be required to attend at least three additional weekend the reason for a decision being made. practicums spread throughout the year. At these they would receive practical training in interviewing and The Commission made a number of recommendations talking with children. This training would be addi aimed at ensuring any systemic bias that does exist is tional to existing legal training prerequisites for coun neutralised, including: • sel for the child. Finally, counsel should always meet with the child. • specialist services should be provided to address men’s and women’s gender specific needs, and in Dispute resolution: Greater emphasis must be particular post-separation parenting programmes placed on resourcing and assisting parties to resolve should be provided for fathers; disputes themselves. A new expanded ‘conciliation

ssue 83 2003 ~ Page 95 Reform Women in the law service’ was recommended to operate out of the Family ble at Companies House. The Commission is currently Court with its services available for a wider range of finalising its recommendations for reform with a view matters than it currently offers. The service would to submitting its report by the end of 2003. include information sessions for guardianship disputes and referrals for counselling, mediation and specialist Work is nearing completion on a major joint project counselling. Service delivery would be contracted out, with the Law Commission for England and Wales but managed by the Family Court, which would over reviewing the law of partnership. The current law see quality control. dates from 1890 and has failed to keep up with the expectations of those running and dealing with the General information sessions, offered in a variety of businesses concerned. A consultation paper (No 111) community settings, should be mandatory for separat was published in October 2000 seeking views on pro ing couples with children who are seeking Court assis posals for reform of the law on ordinary partnerships. tance with custody and access. Separate specialist It examines, in particular, the issues of separate legal courses, providing information on the process of personality and continuity of partnership and suggests parental separation and family transition, should be new mechanisms for solvent dissolution. A second con available and mandatory for children of separating sultation paper (No 118) was issued in November 2001 parents. dealing with the law on limited partnership. The main policy aim is to devise and recommend a modern, accessible structure for partnership law in the 21st Other Commission century. A joint report will be submitted to Ministers projects in the [northern] autumn.

Another joint project considers the desirability and fea • The structure of the courts (final phase) sibility of replacing the Unfair Contract Terms Act

• Powers of search and seizure (commencement 1977 and the Unfair Terms in Consumer Contracts phase) Regulations 1999 with a single piece of legislation, written in a plain, accessible way, which would be con • Status of parenthood—re surrogacy and assisted sistent with European legislation and which would human reproduction also extend protection to small businesses, as well as • Life insurance to consumers. A joint consultation paper (No 119) was published in August 2002. Work is progressing on finalising policy in light of the consultation response Scottish Law with a view to submitting a joint report in 2004. Commission Persons

Obligations In response to a request from the Scottish Ministers, the Commission published a discussion paper (No 120) At the request of the Department of Trade and Indus in August 2002 dealing with liability for psychiatric try, a project is being undertaken on registration and injury. Among the issues examined are: the require priority of rights in security by companies. The Com ment that the pursuer’s injury must arise from a mission published a discussion paper (No 121) in Octo sudden shock; the need for foreseeability of psychiatric ber 2002, which proposes that floating charges should injury; and whether there should be a threshold of continue to be registrable but should be constituted by severity for compensatable injury. The Commission registration rather than by the earlier granting of the aims to submit its report in 2004. deed. It also proposes that other rights in security that are already publicised in specialist registers, and The Commission has recently started work on a project assignations in security, should no longer be registra concerning the law relating to judicial factors. It

Reform ssue 83 2003 - Page 96 Women in the law believes that a radical overhaul of this area of law is proposals put forward is the creation of a new statu necessary because judicial factory is a cumbersome tory insanity defence of ‘not guilty by reason of mental procedure involving disproportionate expense. The ini disorder’. This defence would apply where the accused tial stages of the project involve empirical research was suffering from a mental disorder which had the into the current use of judicial factory and consultation effect that he or she lacked a full or correct apprecia with practitioners experienced in this field. tion of his or her conduct at the time of the offence. The Commission intends to submit its report by the end of the year. Property

Trusts A discussion paper (No 112) on Conversion of Long Leases was published in April 2001. It proposes that The Commission is undertaking a wide-ranging review leases for more than 175 years should be converted of the law of express trusts. The project is being tack into ownership. It also seeks views on whether conver led in two phases. The first concentrates on trustees sion should be available for leases of much shorter and their powers and duties. Two discussion papers duration (50 years or more). A possible alternative for were published in September 2003 as part of this these leases would be to introduce some form of secu phase—one on breach of trust (No 123) and one on rity of tenure. The Commission has prepared its final apportionment of trust receipts and outgoings (No recommendations and will submit its report as soon as 124). A third paper, which is nearing completion, will drafting resources are available to complete the accom deal with the assumption, resignation and removal of panying Bill. trustees, their powers to administer the trust estate and the role of the courts. The Commission is working on a review of the Land Registration (Scotland) Act 1979. This project looks at The second phase of the project will cover trusts, their the difficulties that have arisen in practice with the constitution and termination and the restraints on 1979 Act and considers the need for a conceptual accumulation of income and long-term private trusts. framework to underpin its provisions. The Commis It will also look at trustees’ liability to third parties sion aims to publish a first discussion paper dealing and enforcement of beneficiaries’ rights. However, with general issues, such as the policy objectives of a before beginning this second phase the Commission system of registration of title, by the end of 2003. A intends to issue a discussion paper on whether a trust second discussion paper considering matters of detail should have legal personality. and taking account of responses to the first paper will follow. Recent reports and other The Commission is also engaged on a project concern publications ing completion of title to land following the seller’s receivership. A discussion paper (No 114) on Sharp v The Commission’s report on Law of the Foreshore and Thomson (1997 SC (HL) 66), which is the leading case Sea Bed (Scot Law Com No 190) was published in in this area, was published in July 2001. The project April 2003. It concerns the common law public rights is likely to be completed after the discussion papers on exercisable on the foreshore, sea and sea bed and the land registration have been published. interaction of those rights with the statutory rights of access established under the Land Reform (Scotland) Act 2003. Criminal law The Commission’s report on Irritancy in Leases of At the request of the Scottish Ministers, the Commis Land (Scot Law Com No 191) was published in June sion is undertaking a review of the defences of insanity 2003. It recommends a new statutory regime control and diminished responsibility. It published its discus ling the landlord’s right to terminate a lease on sion paper (No 122) in January 2003. One of the main account of the tenant’s breach of contract.

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In September 2003 the Commission published a Draft Prescription periods Criminal Code for Scotland on behalf of a group of aca demic lawyers. While it has had no role in preparation The issue paper considers the harmonisation of the of the Draft Code, the Commission considers that the provisions of existing laws providing for different pre authors have made a significant contribution to the lit scription periods. A questionnaire is included in the erature on Scots criminal law and that public debate issue paper. A few of the questions raised are the fol on the issues arising from the Draft Code should be lowing: encouraged.

• Should different prescription periods be retained or Further information about the Scottish Law should different periods of prescription be avoided Commission’s work and its publications may be as far as possible? found on its website at . • Are all or some of the different prescription periods in section 11 of the Prescription Act justified?

• Are all or some of the different prescription periods South African Law in other legislation justified?

Reform • Should there be special protection for public Commission authorities regarding prescription? • If it is decided that there should be one uniform prescription period for all or most cases, how long Stalking should this period be?

The South African Law Reform Commission’s investi • Should it be allowable to contract out of the legisla gation into stalking emphasises the need to address tive prescription regime or to modify it by agree the pressing and complex problems relating to stalking ment? with a view to reforming the manner in which it is • The scope of this review is limited to prescription dealt with in terms of current law. The issue paper periods. Is there a need to review other aspects of broadly defines stalking as any type of harassing and prescription or prescription in general? intimidating conduct that causes a person to fear for his or her safety. It identifies different categories of The closing date for comment on Issue Paper 23 was stalkers, for example, delusional erotomanics, ‘former 17 October 2003. intimate’ stalkers, sociopathic stalkers, disgruntled clients, cyberstalkers and debt collectors. The issue paper exposits the existing legal response to acts asso Privacy and data ciated with stalking and explores possible reform of protection civil and criminal remedies.

The three options for reform are as follows: Privacy is a valuable aspect of personality. While • expand or enact similar legislation to the Domestic potential invasions of privacy can come from many Violence Act 1998; sources, a chief concern in recent years has been infor

• amend and adapt section 384 of the Criminal Pro mation privacy. Information privacy has been defined cedure Act 1955 which regulates a binding over of as the claim of individuals, groups or institutions to persons to keep the peace; determine for themselves how, when and to what extent information about them is collected, stored or • enact independent legislation criminalising stalk communicated to others. The recognition and protec ing. tion of the right to privacy as a fundamental human The closing date for comment on Issue Paper 22 was right in the South African Constitution provides an 30 September 2003. indication of its importance.

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The Commission is consequently considering proposals The closing date for comment on Discussion Paper 104 for possible law reform with regard to the following is 1 December 2003. issues: The following reports were submitted to the • whether privacy and data protection should be reg Minister for Justice and Constitutional Develop ulated by legislation; ment on 22 July 2003 for consideration and pro motion in Parliament. • how the general principles of data protection could be developed and incorporated in the legislation; Islamic marriages and • whether a statutory regulatory agency should be established; and related matters

• if it is a viable option to promote a flexible The draft Bill contained in the report takes account of approach in terms of which industries will develop divergent views within the Muslim community. In the their own codes of practice (in accordance with the Commission’s view the adoption of its proposed draft principles set out in the legislation), which could be Bill by Parliament will go a long way in creating legal overseen by the regulatory agency. certainty with regard to Muslim marriages, will give effect to Muslim values and will afford better protec The closing date for comment on Issue Paper 24 is tion to women in those marriages in accordance with 1 December 2003. Islamic and constitutional tenets.

Domestic partnerships The draft Bill draws a clear distinction between an Islamic marriage and a civil marriage. It is only Islamic marriages that would fall within the ambit of The discussion paper deals with the question of the the Bill, with provision being made for Muslims who legal recognition and regulation of domestic partner are married by way of a civil marriage, to exercise an ships—that is, established relationships between option to have the provisions of the Bill apply to them. people of the same or opposite sex. The discussion Provision is also made for the regulation of proprietary paper does not come out in favour of any particular consequences, changes to matrimonial property sys option and the idea is to canvass a number of options. tems (with due regard to existing and vested rights) and the regulation of polygynous marriages. The draft Marriage is currently the only legally recognised form Bill covers both monogamous and polygynous Islamic of intimate partnership. Domestic partnerships, on marriages which, if applicable, may exist alongside a the other hand, are virtually unrecognised and part civil marriage. ners are excluded from the rights and obligations that attach automatically to marriage. The number of It is further recommended that, because the judges of people living in these relationships has, however, secular courts are by and large non-Muslims, a judge increased worldwide and also in South Africa. This be appointed from the ranks of existing Muslim judges discussion paper, therefore, includes proposals for pos or from Muslim legal practitioners to preside in legal sible law reform to recognise and regulate various disputes on an ad hoc basis, and that, on appeal, the forms of domestic partnerships. The proposals are views of two accredited Muslim institutions may be aimed at harmonising family law with the provisions solicited for purposes of commenting on questions of of the Bill of Rights and the constitutional values of law. The courts may also be assisted by assessors who equality and dignity. The legislative proposals relate are experts in Islamic law in the adjudication of all to marriage and civil unions; registered partnerships disputes relating to Islamic law. (same- and opposite-sex relationships); and unregis tered partnerships (same- and opposite-sex relation The Commission’s proposed draft Bill in addition ships). addresses the registration of Islamic marriages, the

ssue 83 2003 ~ Page 99 Reform Women in the law dissolution of such marriages through the pronounce years. Since the Act was passed there have been ment of a Talaq (which, in terms of the proposals, major developments in the law. There is an urgent must be confirmed by a court), custody of and access to need for the Act to be changed to keep abreast with minor children and maintenance. these developments. The draft Apportionment of Loss Bill contained in the report requires the courts to attribute the responsibility for the loss suffered in pro The use of electronic portions that are just and equitable and gives the equipment in court * • courts a wide discretion with regard to the method of determining appropriate proportions.

In its report on the use of electronic equipment in Publications of the South African Law Commis court proceedings (postponement of criminal cases via sion are available online at audiovisual link), the Commission recommends that: .

• legislation be introduced to provide for the use of audiovisual equipment for the purpose of postpon ing criminal cases against accused persons who are in custody;

• the procedure provide for bail applications, both before conviction and after conviction pending an appeal;

• it should be in the discretion of the presiding officer to order the accused’s physical presence in court;

• the procedure also be available for applications for leave to appeal and appeal proceedings in respect of accused persons in custody;

• the legislation be uncomplicated;

• technical matters be provided for in regulations (especially because of continuous changes in tech nology);

• juveniles (persons younger than 18) be excluded from the process; and

• the point of departure be to allow the procedure unless, in the discretion of the presiding officer, the accused must in the interests of justice be brought before a court.

Report on the Apportion ment of Damages Act 34 of 1956

The major application of the Apportionment of Dam ages Act 34 of 1956 has been in the field of delictual claims and mostly in the area of motor vehicle acci dents. The Act has been severely criticised over the

Reform Issue 83 2003 - Page i o o Women in the law House Areas of Law

Compiled by Sue Morris*

Aborigines Adoption see Indigenous people & see Family Law Customary law

Ageing Access rights A L R I I LRC • Elder law—WIH assessing whether pensions • The acquisition of easements and profits a pren and retirement plans warrant protection from dre by prescription, 2002 (R 66). creditors.

Scot Law Com Alternative dispute • Report on law of the foreshore and seabed, 2003 resolution (Scot Law Com 190).

LRCHK Administrative law • The family dispute resolution process, 2003.

ARC NZLC • Automated assistance in administrative • Dispute resolution in the Family Court, 2003 decision-making, 2003. (R 82). • Procedural discretions of review tribunals—WIH on a paper that will focus on Arbitration tribunal discretion, time limits, standing and stays of decisions. NZLC • Coercive investigative powers of government • Improving the Arbitration Act 1996, 2003 agencies—WIH on a new project examining the (R 83). range of investigative powers of Commonwealth government agencies which have penalties attached to compel compliance. A DP will be Assisted reproduction produced.

ILRC LRC WA • Public inquiries including tribunals of inquiry, • Eligibility for Assisted Reproduction and Adop 2003 (CP 22). tion (CP).

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Biotechnology NSWLRC see also Genetics * Informed consent to medical treatment by minors—WIH on an IP. ALRC • Sentencing: Young Offenders—WIH on final • Gene patenting and human health, 2003 report. (IP 27). A DP is due to be released early 2004 and the final report in mid-2004. Class actions

Building law I LRC • Multi-party litigation (class actions), 2003 Nova Scotia LRC (CP 25). • Builders’ liens in Nova Scotia: Reform of the Mechanics’ Lien Act: final report, 2003. Classified information see Security Child abuse

Law Com Coercive powers • Children: Their Non-accidental Death or Seri ous Injury (Law Com 282). ARC • Coercive investigative powers of government TLRI agencies—WIH on a new project examining the • Physical Punishment of Children IP. WIH on range of investigative powers of Commonwealth the final report. government agencies which have penalties attached to compel compliance. A DP will be produced. Child care

Commissions of Inquiry $ ALC • Report on the review of the Child Care Act, 2002 (P 110). TLRI • Commissions of Inquiry Act 1995, 2003 (R)

Children and the law Company law FLC • WIH on a report clarifying the role of child rep Law Com; Scot Law Com resentatives in family law proceedings. • Partnerships—WIH continues on a final report due late 2003. • The Paramountcy Principle—WIH continues on s 65E of the Family Law Act 1975 (Cth) where a NSWLRC court must regard the best interests of the child • Sentencing: Corporate Offenders (R 102). as the paramount consideration.

Scot Law Com LRCHK • Registration of rights in security of • WIH on a report dealing with custody and companies—WIH on a final report, due end of access to children. 2003.

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Compensation digital agenda copyright reforms. They deal with libraries, archives and educational copy ing; carrier & carriage service providers; tech Law Com nology and rights; circumvention device and • Towards a compulsory purchase code—WIH on services; technological protection measures and a final report, due 2003. rights management information. Consultation forums have been scheduled for Melbourne and Sydney. Constitutional law

QLCARC Courts • Review of the Queensland Constitutional Review Commission’s recommendations regard- ALRC ing entrenchment of the Queensland Constitu • Protecting Classified and Security Sensitive tion, 2003 (R 41). Information, 2003 (BP 8). Consultations are underway and WIH on a DP, due in late 2003. A final report is due in February 2004. Contempt

ALRI LRC WA • Rules of Court Project: Consultation Memo • WIH on a final report on the law of contempt randa. due late 2003. • 12.6 Promoting Early Resolution of Disputes by NSWLRC Settlement.

• Contempt by Publication, 2003 (R 100). • 12.7 Discovery and Evidence Issues: Commis sion Evidence, Admissions, Pierringer Agree ments and Innovative Procedures. Contracts

NZLC Law Com; Scot Law Com • The structure of the courts—WIH on the final • Unfair terms in contract—WIH on a final joint report due 2004. report due in 2004.

Criminal law C o nveyan cin g see also Sentencing see also Land law

1 LRC 1 LRC • Criminal law and procedure—WIH on two CPs: • Land law and conveyancing: (7) positive the first will examine the plea of provocation, covenants over freehold land and other propos and the second will examine legitimate defences als, 2003 (R 70). in homicide cases. • e-Conveyancing—WIH considering how techno logical advances could reduce time taken in con- Law Com veyancing transactions. • Children: Their Non-accidental Death or Seri ous Injury (Law Com 282).

Cl • Together with other agencies, WIH continues on • IPs were released in August 2003 dealing with amendments to the Criminal Code to remedy

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procedural defects or promote substantial Damages changes in the law.

• WIH on the issue of court-ordered structured Defences to murder. An option paper has been settlements in the context of personal injury released for the reference examining the law damages awards. Significant work has been relating to defences and partial excuses to completed on an IP. murder. A final report will be released in 2004.

Diminished responsibility see Mental health Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, 2003 (R 101).

Ethics

Seeking justice: an inquiry into the handling of sexual offences by the criminal justice system, 2003. • Essentially Yours: The Protection of Human Genetic Information in Australia, 2003 (R 96).

* Sexual offences report, 2002 (P 107). Evidence

WIH on the final report on the review of the Protecting Classified and Security Sensitive defences of insanity and diminished responsibil Information, 2003 (BP 8). ity. The report is due late 2003.

• Administration of justice offences: DP, 2003. • Custody, arrest and police bail, 2003 (R 1).

Family law • Sexual offences: interim report, 2003.

• WIH on a DP on defences to homicide. • WIH on a review of a government proposal to introduce the Adult Interdependent Partnership Customary law Act.

• WIH on the determination of an appropriate point in time between separation and trial for • WIH on a report on the recognition of custom property valuation following a marriage break ary law marriages. down.

The Commission has been involved in extensive • WIH on a report clarifying the role of child rep community consultation. A series of BPs on resentatives in family law proceedings. Aboriginal customary laws in Western Aus • The Paramountcy Principle—WIH continues on tralia will be published late 2003-early 2004. A s 65E of the Family Law Act 1975 (Cth) where a final report will be published in 2005. court must regard the best interests of the child as the paramount consideration.

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FLC; LCA Indictable offences • Best Practice Guidelines for Lawyers Doing Family Law Work, 2003. ILRC • Penalties for minor offences, 2003 (R 69). LRC H K

• The family dispute resolution process, 2003. Indigenous people • WIH on a report dealing with custody and see also Customary law access to children. QLCARC LRC WA • Hands on Parliament: a parliamentary commit- • Eligibility for Assisted Reproduction and Adop- tee inquiry into Aboriginal and Torres Strait tion (CP). Islander Peoples’ participation in Queensland’s democratic process, 2002. LRDC of Namibia • WIH on a project to bring Namibia’s divorce Intellectual disability laws into line with worldwide developments.

NZLC VLRC • Dispute resolution in the Family Court, 2003 • WIH on a final report into compulsory care and (R 82). treatment of people with intellectual disabilities

TLRI Judicial review • Adoption by same sex couples, 2003 (R 2).

ARC Genetics • The scope of judicial review, 2003.

ALRC; AHEC ILRC • Essentially Yours: The Protection of Human • A consultative seminar on the findings of a CP Genetic Information in Australia, 2003 (R 96) on judicial review procedure was held in July 2003. ALRC • Gene patenting and human health, 2003 Juries (IP 27). A DP is due to be released early 2004 and the final report in mid-2004. NSWLRC • Eligibility of jurors: should people who are blind I LRC or deaf be able to serve on juries? WIH on a DP. • WIH on a CP examining the issue of establishing a DNA databank in Ireland. Land law see also Conveyancing Homicide

ALRI VLRC • Limitations Act: adverse possession and lasting • WIH on a DP on defences to homicide. improvements, 2003 (R 89).

Issue 83 2003 - Page 105 Reform Women in the law

• Title by adverse possession of land, 2002 (R 67). • Informed consent to medical treatment by minors—WIH on an IP. • The acquisition of easements and profits a pren dre by prescription, 2002 (R 66). Mental health • Land law and conveyancing: (7) positive covenants over freehold land and other propos als, 2003 (R 70). • Damages for psychiatric injury—WIH on a report due in 2004. • Report on irritancy in leases of land, 2003 (Scot • WIH on the final report on the review of the Law Com 191). defences of insanity and diminished responsibil ity. The report is due late 2003. Landlord and tenant

Parliament

• Business tenancies, 2003 (CP 21).

• Hands on Parliament: a parliamentary commit tee inquiry into Aboriginal and Torres Strait • Report on irritancy in leases of land, 2003 (Scot Islander Peoples’ participation in Queensland’s Law Com 191). democratic process, 2002.

Legal centres • The role of the Queensland Parliament in treaty making—review of tabling procedure (R 39).

• Review of the Community Justices Centres Act Patents 1983 (NSW)—WIH on a DP.

Liability • Gene patenting and human health, 2003 (IP 27). A DP is due to be released early 2004 and the final report in mid-2004.

• Corporate homicide—WIH on a CP examining the liability of corporations for wrongful death. Police

Medical I aw QCMC • On the beat: an evaluation of beat policing in Queensland, 2003. Essentially Yours: The Protection of Human • Public perceptions of the Queensland Police Genetic Information in Australia, 2003 (R 96) Service: findings from the 2002 Public Attitudes survey, 2003.

WIH continues on the withholding or withdraw • The Volkers case: examining the conduct of the ing of life sustaining treatment. A final report police and prosecution, 2003. is due soon.

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Power of attorney Revenue law

A L R I ILRC • Enduring powers of attorney: safeguards • A fiscal prosecutor and a revenue court, 2003 against abuse, 2003 (R 88). (CP 24).

Privacy Relat ionsh i ps see also Surveillance see also Family law

ALRC; AH EC ILRC • Essentially Yours: The Protection of Human • Rights and duties of cohabitees—WIH examin Genetic Information in Australia, 2003 (R 96). ing the law in relation to the rights and duties of cohabitees. LRC HK • WIH of an ongoing review of the law of privacy NSWLRC and media intrusion. A final report is expected • Relationships and the law—WIH on the final 2004. report.

VLRC TLRI • WIH on a DP on workplace privacy • Adoption by same sex couples, 2003 (R 2).

Privilege Security

QLRC ALRC • Review of the abrogation of the privilege • Protecting Classified and Security Sensitive against self-incrimination, 2003 (DP). Information, 2003 (BP 8). WIH on consulta tions. A DP is due towards the end of 2003 and Property the final report, early 2004.

Scot Law Com S ALC • WIH continues on the final report dealing with • Report on review of security legislation (Terror the conversion of long leases. ism): Section 54 of the Internal Security Act, 1982 (Act No 74 of 1982), 2002 (P 105). • WIH on a DP reviewing the Land Registration (Scotland) Act 1979. The DP is due late 2003. Sentencing • WIH continues on the project examining the completion of title to land following the seller’s receivership. ILRC • WIH examining the power of the DPP to appeal unduly lenient sentences. Prosecutions • WIH on a CP examining the use of court poor boxes. QCMC • The Volkers case: examining the conduct of the • WIH on a CP on restorative justice and alterna police and prosecution, 2003. tives to custodial sentencing.

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Treaties • Legislative sentencing—WIH on a DP.

• Sentencing: Corporate Offenders, 2003 (R 102). • The role of the Queensland Parliament in • Sentencing: Young Offenders—WIH on final treaty making—review of tabling procedure report. (R 39).

Sexual offences Trusts and trustees

• CP on the variation and termination of trusts, • Questioning of Complainants by Unrepresented 2003. Accused in Sexual Offence Trials, 2003 (R 101).

• Breach of Trust, 2003 (DP 123). • Seeking justice: an inquiry into the handling of sexual offences by the criminal justice system, • Apportionment of Trust Receipts and Outgo- 2003. ings, 2003 (DP 124).

• WIH on a third DP dealing with the assumption, resignation and removal of trustees, their • Sexual offences report, 2002 (P 107). power to administer the trust estate and the role of the courts.

• Sexual offences: interim report, 2003. Uniform laws

Surveillance • Together with other agencies, WIH on the mod- ernisation and harmonisation of Canada’s commercial laws. For example, amendments to the • Surveillance—WIH on the final report. Personal Property Security Act and the Uni form Enforcement of Foreign Judgments.

Technology • Together with other agencies, WIH on amendments to the Criminal Code to remedy proce dural defects or promote substantial changes in the law. • Automated assistance in administrative decision-making, 2003. Wills and succession

Trade ALR| • Report on a succession consolidation statute, 2002 (R 87). • Consolidated legislation pertaining to international co-operation in civil matters, (P 121) —WIH. • Wills and Succession Legislation, 2003 (R 108).

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• WIH on a report pertaining to succession estate • Protected disclosures (P 123)—WIH. matters.

Witnesses

• Reform of the Nova Scotia Wills Act, 2003 (DP).

Administration of justice offences: DP, 2003. Whistleblowers

• Protecting Classified and Security Sensitive Information, 2003 (BP 8).

Abbreviations and Acronyms

AG Attorney-General’s Department (Australia) AHEC Australian Health Ethics Committee of the National Health and Medical Research Council ALRI Alberta Law Reform Institute ALRC Australian Law Reform Commission ARC Administrative Review Council BCLI British Columbia Law Institute BP Background paper CP Consultation paper FLC Family Law Council IP Issues paper ILRC Ireland Law Reform Commission Law Com Law Commission (England & Wales) LCA Law Council of Australia LCC Law Commission of Canada LRCHK Law Reform Commission of Hong Kong LRCWA Law Reform Commission of Western Australia LRDC of Namibia Law Reform and Development Commission of Namibia Nova Scotia LRC Nova Scotia Law Reform Commission NSWLRC New South Wales Law Reform Commission NZLC New Zealand Law Commission P Project QCMC Queensland Crime and Misconduct Commission QLCARC Queensland Legal, Constitutional and Administrative Review Committee QLRC Queensland Law Reform Commission R Report SALC South African Law Commission Scot Law Com Scottish Law Commission TLRI Tasmanian Law Reform Institute VLRC Victorian Law Reform Commission VPLRC Victorian Parliament Law Reform Committee WIH Work in hand

* Sue Morris is the Information & Research Manager at the Australian Law Reform Commission. Entries to Clearing House can be made by e-mailing details of areas of law under review to [email protected]

ssue 83 2003 - Page loo Reform Women in the law Contacts The Australian Law Reform Commission, Cambridge University and the Alberta Law Reform Institute all maintain links to other law reform agencies on the internet. For quick access to law reform sites try the following addresses: www.alrc.gov.auwww.law.cam.ac.uk/resources_reform.phpwww.law.ualberta.ca/alri

Family Law Council Queensland Crime & Australia Robert Garran Offices Misconduct Commission National Circuit GPO Box 3123 Federal law reform BARTON ACT 2600 BRISBANE QLD 4001 sources Ph: (02) 6250 6842 Ph: (07) 3360 6060 Attorney-General’s Department Fax: (02) 6250 6521 Fax: (07) 3360 6333 (Commonwealth) E-mail: [email protected] E-mail: [email protected] Robert Garran Offices URL: www.law.gov.au/flc URL: www.cmc.qld.gov.au National Circuit BARTON ACT 2600 Queensland Law Reform State and territory Commission Ph: (02) 6250 6666 law reform sources Fax: (02) 6250 5900 PO Box 13312 George St Post Shop BRISBANE QLD 4003 URL: www.law.gov.au ACT Law Reform Commission Ph: (07) 3247 4544 GPO Box 158 Administrative Review Council Fax: (07) 3247 9045 CANBERRA CITY ACT 2601 Robert Garran Offices E-mail: LawReform.Commission@jus Ph: (02) 6207 0524 National Circuit tice.qld.gov.au Fax: (02) 6207 0538 BARTON ACT 2600 URL: www.qlrc.qld.gov.au E-mail: [email protected] Ph: (02) 6250 5800 URL: Fax: (02) 6250 5980 Queensland Legal, www.jcs.act.gov.au/eLibrary/lrc/descri E-mail: [email protected] Constitutional & Administrative ption.html URL: www.law.gov.au/arc Review Committee Parliament House George St Copyright Law Review New South Wales Law Reform BRISBANE QLD 4000 Committee Commission Ph: (07) 3406 7307 C/- Attorney-General’s Department GPO Box 5199 Fax: (07) 3406 7070 Robert Garran Offices SYDNEY NSW 2001 E-mail: National Circuit Ph: (02) 9228 8230 [email protected] BARTON ACT 2600 Fax: (02) 9228 8225 URL: www.parliament.qld.gov.au/ Ph: (02) 6250 6076 E-mail: [email protected] committees/legalrev.htm Fax: (02) 6250 5989 URL: www.lawlink.nsw.gov.au/lrc E-mail: [email protected] South Australian Attorney- URL: www.law.gov.au/clrc Northern Territory Law General’s Department, Policy & Reform Committee Legislation Section Corporations and Markets GPO Box 1535 GPO Box 464 Advisory Committee DARWIN NT 0801 ADELAIDE SA 5001 GPO Box 3967 Ph: (08) 8999 7466 Ph: (08) 8207 1723 SYDNEY NSW 2001 Fax: (08) 8999 7095 Fax: (08) 8207 1736 Ph: (02) 9911 2950 E-mail: E-mail: [email protected] Fax: (02) 9911 2955 la wreformcommittee. ntag@nt. gov. au URL: www.sacentral.sa.gov.au/ E-mail: [email protected] URL: www.nt.gov.au/justice/graph agencies/agd URL: www.camac.gov.au pages/la wmake/la wref. shtml

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Tasmania Law Reform Law Reform Commission of Institute Overseas Nova Scotia Faculty of Law Bahamas 2nd Floor University of Tasmania 1484 Carlton Street Law Reform & Revision Private Bag 89 Halifax, Nova Scotia B3H 3B7 Commission HOBART TAS 7001 CANADA Claughton House Ph: (03) 6226 2069 Ph: + 1 902 423 2633 Shirley Street Fax: (03) 6226 7623 Fax: + 1 902 423 0222 PO. Box N3007 E-mail: [email protected] E-mail: [email protected] Nassau, NP. URL: www.law.utas.edu.au/reform URL: www.lawreform.ns.ca BAHAMAS Ph: + 1242 328 5408 Victorian Law Reform New Brunswick Department of Fax: + 1242 328 5435 Commission Justice GPO Box 4637 Bangladesh Legislative Services Branch MELBOURNE VIC 3001 Bangladesh Law Commission PO Box 6000 Ph: (03) 8619 8619 Old High Court Building Fredericton, New Brunswick E3B 5H1 Fax: (03) 8619 8600 Dhaka-1000 CANADA E-mail: BANGLADESH Ph: + 1 506 453 6542 [email protected] Ph: + 880 2 9559004 Fax: + 1 506 457 6982 URL: www.lawreform.vic.gov.au Fax: + 880 2 9560843 E-mail: [email protected] E-mail: [email protected] URL: www.gnb.ca/0062/index-e.asp Victorian Parliamentary Law Reform Committee Canada Manitoba Law Reform Level 8 Law Commission of Canada Commission 35 Spring Street 473 Albert Street 1210-405 Broadway Avenue MELBOURNE VIC 3000 11th Floor Winnipeg, Manitoba R3C 3L6 Ph: (03) 9651 3644 Ottawa, Ontario KlA 0H8 CANADA Fax: (03) 9651 3674 CANADA Ph: + 1 204 945 2896 E-mail: [email protected] Ph: + 1 613 946 8980 Fax: + 1 204 948 2184 URL: www.parliament.vic.gov.au/ Fax: + 1 613 946 8988 E-mail: [email protected] lawreform E-mail: [email protected] URL: www.gov.mb.ca/justice/mlrc URL: www.lcc.gc.ca Victorian Scrutiny of Acts and Saskatchewan Law Reform Regulations Committee Uniform Law Conference Commission Level 8 of Canada 2237 Smith Street 35 Spring St 622 Hochelaga Street Regina, SK S4P 2P5 Ottawa, Ontario K1K 2E9 MELBOURNE VIC 3000 CANADA CANADA Ph: (03) 9651 4000 Ph: + 1 306 352 1641 Ph: + 1 613 747 1695 Fax: (03) 9651 3674 Fax: + 1 306 525 8884 Fax: + 1 613 941 4122 E-mail: E-mail: [email protected] E-mail: [email protected] [email protected] URL: www7.quantumlynx.com/sask URL: www.ulcc.ca URL: lawreform/index.htm www.parliament.vic.gov.au/sarc Alberta Law Reform Institute 402 Law Centre Cyprus Western Australian Law University of Alberta Service for the Revision and Reform Commission Edmonton, Alberta T6G 2H5 Consolidation of the Cyprus Level 3, BCG Centre CANADA Legislation 28 The Esplanade Ph: + 1 780 492 5291 10 Pavlov Nirvana Street PERTH WA 6000 Fax: + 1 780 492 1790 Omologites Ph: (08) 9321 4833 E-mail: [email protected] 1686 Nicosia Fax: (08) 9321 5833 URL: www.law.ualberta.ca/alri CYPRUS E-mail: [email protected] Ph: + 357 2 302 471 URL: www.lrc.justice.wa.gov.au British Columbia Law Institute Fax: + 357 2 667 055 1822 East Mall University of British Columbia Vancouver, BC V6T 1Z1 CANADA Ph: + 1 604 822 0142 Fax: + 1 604 822 0144 E-mail: [email protected] URL: www.bcli.org

ssue 83 2003 ~ Page Reform Women in the law

England & Wales Ireland New Zealand Law Commission The Law Reform Commission Law Commission Conquest House IPC House, 35-39 Shelbourne Road PO Box 2590 37-38 John St Ballsbridge Wellington Theobalds Road Dublin 4 NEW ZEALAND London WClN 2BQ IRELAND Ph: + 64 04 473 3453 UNITED KINGDOM Ph: + 353 1 637 7600 Fax: + 64 04 471 0959 Ph: + 44 020 7453 1220 Fax: + 353 1 637 7601 E-mail: [email protected] Fax: + 44 020 7453 1297 E-mail: [email protected] URL: www.lawcom.govt.nz E-mail: chief.executive@lawcom URL: www.lawreform.ie mission.gsi.gov.uk Nigeria URL: www.lawcom.gov.uk/index.html Jersey Nigerian Law Reform Jersey Law Commission Commission Fiji PO Box 404 Federal Secretariat Complex 1 Fiji Law Reform Commission Whitley Chambers PO Box 60008 Ikoyi PO Box 2194 Don Street Lagos Government Buildings St Helier NIGERIA Suva Jersey JE4 9WG FIJI UNITED KINGDOM Northern Ireland Ph: +44 1534 504271 Ph: + 679 303 900 Office of Law Reform URL: www.lawcomm.gov.je/ Fax: + 679 303 646 1st Floor E-mail: [email protected] Kenya Lancashire House URL: www.flrc.gov.fj/ Kenya Law Reform 5 Linenhall Street Belfast BT2 8AA Gambia Commission C/- The Attorney-General’s Office NORTHERN IRELAND The Law Reform Commission State Law Office Ph: + 44 28 9054 2900 of the Gambia Narambee Avenue Fax: + 44 28 9054 2909 PO Box 266 PO Box 40112 E-mail: [email protected] Banjul Nairobi URL: www.olrni.gov.uk THE GAMBIA KENYA Pakistan Ghana Ph: + 254 020 227 461 URL: www.kenya.go.ke/justice/ag.html Law & Justice Commission of Ghana Law Reform Pakistan Commission Lesotho Supreme Court Building PO Box M.63 Law Reform Commission of Constitution Ave Accra Lesotho Islamabad GHANA PO Box 33 PAKISTAN Ph: + 233 21 228898 Maseru 100 Ph: + 92 51 922 0483 Hong Kong LESOTHO Fax: + 92 51 921 4416 Law Reform Commission of Malawi E-mail: [email protected] URL: www.ljcp.gov.pk Hong Kong Malawi Law Commission 20th Floor, Harcourt House Gowa House 39 Gloucester Road Private Bag 373 Scotland Wanchai Lilongwe 3 Scottish Law Commission HONG KONG MALAWI 140 Causewayside Ph: + 852 2528 0472 Ph: + 265 782 822/442/841 Edinburgh EH9 1PR Fax: + 852 2865 2902 Fax: + 265 782 532 SCOTLAND E-mail: [email protected] E-mail: [email protected] Ph: + 44 131 668 2131 URL: http://chambo.sdnp.org.mw/ URL: www.info.gov.hk/hkreform Fax: + 44 131 662 4900 ruleoflaw/lawcom/ E-mail: [email protected] India Namibia URL: www.scotlawcom.gov.uk Law Commission of India Law Reform and Development 7th Floor, A-Wing, Shastri Bhawan Commission of Namibia New Delhi - 110 001 Private Bag 13302 INDIA Windhoek Ph: + 91 11 3383382 REPUBLIC OF NAMIBIA E-mail: [email protected] Ph: + 264 61 280 511 URL: lawcommissionofindia.nic.in/ Fax: + 264 61 240 064 E-mail: [email protected]

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Singapore Trinidad & Tobago Law Revision Commission of Singapore Law Reform and Law Reform Commission the Commonwealth of the Revision Division 5th floor, Cabildo Chambers Northern Mariana Islands Attorney-General’s Chambers Ministry of the Attorney-General PO Box 502179 1 Coleman Street 23-27 St Vincent Street Saipan, MP 96950-2179 #05-04 The Adelphi Port of Spain UNITED STATES OF AMERICA SINGAPORE 179803 TRINIDAD Ph: + 1 670 236 9820 Fax: + 65 6332 4700 WEST INDIES Fax: + 1 670 236 9897 E-mail: [email protected] Ph: + 868 627 6395 E-mail: [email protected] URL: Fax: + 868 624 0796 URL: www.cnmilaw.org www.agc.gov.sg/site_map/div_lrrd. E-mail: [email protected] htm URL: www..ag.gov.tt/about/agen Michigan Law Revision cies/law_reform.asp Commission Solomon Islands Michigan National Tower Law Reform Commission Uganda 124 W. Allegan, 4th Floor Ministry of Justice & Legal Affairs Uganda Law Reform PO. Box 30036 PO Box 404 Commission Lansing, MI 48909-7536 Honiara PO Box 12149 UNITED STATES OF AMERICA SOLOMON ISLANDS Kampala Ph: + 1 517 373 5613 Ph: + 677 21181 (Ext 14) UGANDA Fax: + 1 517 373 0171 or 677 25842 Ph: + 256 41 346200 URL: www.milegislativecouncil. Fax: + 677 25610 Fax: + 256 41 346200 org/mlrc/index.html E-mail: [email protected] South Africa New Jersey Law Revision South African Law Reform United States Commission Commission National Conference of Box 47106 Private Bag X668 Commissioners on Uniform Newark NJ 0710 Pretoria 0001 State Laws UNITED STATES OF AMERICA REPUBLIC OF SOUTH AFRICA 211 E. Ontario Street, Suite 1300 Ph: + 1 973 648 4575 Ph: + 27 12 322 6440 Chicago, Illinois 60611 Fax: + 1 973 648 3123 Fax: + 27 12 320 0936 UNITED STATES OF AMERICA E-mail: [email protected] E-mail: [email protected] Ph: + 1 312 915 0195 URL: www.lawrev.state.nj.us URL: Fax: + 1 312 915 0187 www.law.wits.ac.za/salc/salc.html E-mail: [email protected] New York State Law Revision URL: www.nccusl.org Sri Lanka Commission Law Commission Californian Law Revision Albany Law School 93, Isipathana Mawatha Commission 80 New Scotland Road Colombo 05 4000 Middlefield Rd, Room D-l Albany NY 12208 SRI LANKA Palo Alto, CA 94303-4739 UNITED STATES OF AMERICA Ph/Fax: + 94 1 586 002 UNITED STATES OF AMERICA Ph: + 1 518 472 5858 E-mail: [email protected] Ph: + 1650 494 1335 Fax: + 1 518 445 2303 E-mail: [email protected] URL: Fax: + 1650 494 1827 www.justiceministry.gov. lk/LAW% E-mail: [email protected] URL: www.lawrevision.state.ny.us/ 20COMMISSION/LAW%20COM URL: www.clrc.ca.gov Oregon Law Commission MISSION%200F%20SRI%20LANL 245 Winter Street SE KA.htm Connecticut Law Revision Commission: Salem, OR 97301 Tanzania do Legislative Commissioners' UNITED STATES OF AMERICA Law Reform Commission of Office Ph: + 1 503 370 6973 Tanzania Suite 5500 Fax: + 1 503 370 6998 E-mail: [email protected] PO Box 3580 Legislative Office Building Dar-es-Salaam Hartford, CT 06106-1591 URL: www.willamette.edu/wucl/ore UNITED STATES OF AMERICA TANZANIA gonlawcommission/ Ph: + 255 22 212 3533 Ph: + 1 860 240 8410 Fax: + 1 860 240 8414 Zambia E-mail: [email protected] Law Development Commission URL: www.cga.state.ct.us/lrc/ PO Box 35670 Lusaka ZAMBIA

Issue 83 2 0 0 3 - Page 3 Reform

IS PUBLISHED B Y T H E AU ST R A L I A N LAW REFORM COMMISSION.

australian law reform commission