IMMIGRATION - Victorian Women Lawyers

convenor’s columnEdition 32contents3 Convenor’s column – Rosemary Peavey4 Editorial – Barbara Watroba5 Immigration and ‘Domestic Violence’– Romany Tauber13 World refugee day – Chindar Teo14 “Help arriving” – Michelle TesorieroRosemary PeaveyThis edition of Portia has a primary focus onimmigration issues. Immigration and theplight and treatment of refugees in Australiahave been hotly debated for some time now.The various articles published in this editionwill hopefully give you further enlighteningperspectives on the various challenges facedby refugees when they arrive in Australia andthose who actually work with them.I was greatly encouraged by VWL receiving aletter from one of the five women lawyers maderedundant from a prominent Melbourne law firmlast year. Her letter was responding to an article inthe last edition of Portia. The author of the letter,who will remain anonymous, points out that it isnot just women lawyers who work flexible hourswho find it difficult to survive in law firms, andtherefore the issue of work-life balance may not bethe only factor acting against women progressing,or remaining, in the legal profession. It continues tobe the case that there are many women entering thelegal profession, but men continue to occupy themajority of senior positions. It took a lot of couragefor the author to write to VWL, but the issues sheraises are significant and will continue to remain onVWL’s agenda.On the issue of flexible work practices, the recentdecision handed down by the Full Bench of theAustralian Industrial Relations Commission whichcreates more options for employees with families, isa significant development in the debate on work lifebalance. A full report on this decision is includedin this edition. It will be interesting to see whetherthis development will have any impact on the legalprofession.There were a number of key highlights for VWL overthe past few months. The “Women on the BenchForum” held in August at the LIV was well attendedby the judiciary, barristers and solicitors.continued on page 415 Victorian immigrant and refugeewomen’s coalition – Prue Burrell20 Immigration lawyers associationof Australasia – Maria Jockel21 Immigration law and partner visas– Maria JockelRecent News24 Award workers win family friendly provisions– Virginia Jay26 Recent seminars on work/family balace– Virginia Jay – Georgina Frost30 VWL essay competition– Anne Winckel30 VWL essay competition– Winning Essay by Emily Chew34 2005 women and the law breakfast– Event report by Katie Elder35 Being on both sides of the law – Deb Kilroy38 International parental abduction – Robin Bowles42 Sitting on the AFL tribunal – Elaine Canty45 Oh what a night – Michelle Tesoriero46 Women lawyers achievement awards– Anne Winckel47 Achievement awards speech – Rob Hulls49 Keynote speech – Pamela Tate54 Networking committee report – Mandy Bede55 Membership committee report– Justine Lau & Alex Neskes56 Work practices committee report– Debra Elliot & Virginia Jay58 Justice committee report– Rosalie Cattermole & Vicki James59 Communications committee report– Barbara Watroba60 Membership information3

of a domestic violence crisis service,or another person with expertisein the field. 23 In many ways, thissystem circumvents the problemsencountered by victims of domesticviolence in establishing the factualbasis of their claim through evidencegiven in court, 24 as it is the evidenceset out in the statutory declarationswhich establishes the factual basisof the claim that domestic violencehas been suffered by the victim. 25The statutory declarations of thecompetent persons must state thatit is the opinion of the competentperson that domestic violencehas occurred. 26 Each statutorydeclaration must also set out theevidence on which they have basedtheir opinion, and name both thealleged perpetrator and the allegedvictim. 27 The statutory declarationby the alleged victim must setout the allegation and name theperson alleged to have committedthe relevant domestic violence. 28The defi nition of “relevantdomestic violence” is thereforea crucial aspect of thislegislation.Where the claim under the DVP isnot accepted by the Departmentof Immigration and Multiculturaland Indigenous Affairs, an appealmay be made to the MigrationReview Tribunal. 29 It is within theauthority of the Tribunal to assesswhether the statutory declarationspresent the evidence called for bythe evidentiary scheme provided. 30The “Tribunal does not find whatunderlying conduct occurred infact by weighing the statutorydeclaration against the surroundingevidence”. 31 The Tribunal examinesthe statutory declarations toassess whether all the evidentiaryrequirements of the DVP are set out.This includes making an assessmentof whether the evidence setsout “relevant domestic violence”as described by the definition(above) in sub-reg 1.23(2)(b).The definition of “relevant domesticviolence” is therefore a crucialaspect of this legislation as wherethe violence suffered by the victimis not of the kind in this definition,the claim must be excluded, and it islikely that the applicant will have nogrounds on which to continue theirapplication for permanent residency.Definitions in case lawCase law reveals that the definitionof “relevant domestic violence”under the DVP is contentious. InCakmak, 32 the Full Federal Court ofAustralia considered the definitionof domestic violence. The specificsof this judgment are discussedbelow however it is important tonote first that the scope of the term“perpetrator” and the meaning ofthe words “domestic violence” arenarrowly defined. 33 This Full FederalCourt judgment carries considerableauthority, and affects the way thedefinition of domestic violence inthe Migration Regulations 1994(Cth) is regarded by the Departmentof Immigration and Multiculturaland Indigenous Affairs, and theMigration Review Tribunal. Anyapplication to use the DVP is subjectto an assessment of whetherthe evidence set out in statutorydeclarations is within the scopeof “relevant domestic violence”as defined by the Full FederalCourt. Legal determinations aboutwho inflicts domestic violence,and what kinds of behavioursthis includes are important. Notonly are such legal determinationsrelevant to accessing the DVP, butthey are also an influential forcein society’s understandings of thedefinition of domestic violencemore generally, as the voice of lawis the voice of power. 34 An analysisof the connotations associatedwith particular terms is particularlyimportant in instances where legaldefinitions of domestic violenceare determined with reference tocommon understandings of thebreadth and scope of the term. Thedefinitional issues raised in Cakmakhighlight the importance of ensuringwomen’s experiences are central todefinitions of domestic violence, aswell as the power involved in thedefinitional process because of thesignificant impact such limitationcan have on women’s lives.Understandings ofdomestic violence as genderneutral can skew thedevelopment of principles.The development of the definitionof domestic violence in DVP caselaw has occurred in the contextof appeal cases where it appearsthat often the applicants are men,claiming to be victims of domesticviolence. 35 Cakmak is a primeexample such a case. While it iscertain that domestic violence isa gender-based form of violenceprimarily suffered by women, it isnot beyond the realm of possibilitythat men can be victims of domesticviolence. 36 Given the unequalpower dynamics inherent in thestructure of the spouse visa, 37the likelihood of this occurringis increased. Gender neutralterminology allows both menand women to apply to use theDVP. However, understandingsof domestic violence as genderneutral can skew the developmentof principles. 38 While it is notpossible to definitively assess theeffect that this has had, the unusualfactual contexts of this body ofcase law is worth consideringin light of the development of anarrow definition which fails toacknowledge women’s experiences.The case of Cakmak:In this case, Mr Cakmak, a spouse6

violence may involve a widerange of behaviours, including:physical abuse; sexual abuse;spiritual abuse; verbal abuse;emotional abuse; social abuse;and economic abuse. 65This range of abuse makes itclear that a feature of this typeof violence is “not only physicalinjury but direct or indirect threats,emotional and psychologicaltorment, economic control, propertydamage, social isolation andbehaviour which causes a personto live in fear”. 66 Men’s violenceagainst women mostly occurs indomestic or intimate contexts,and such violence is an abuse ofpower. 67 Domestic violence is theuse of a gendered position of powerto “control, coerce or dominateanother person”. 68 Recognisingthe subordinating effect that men’sviolence has on women’s lives,and the way in which patternsof behaviour over time serve as acontrol mechanism is a necessarypart of any definition whichreflects women’s experiences. 69While the Court in Cakmak didrecognise behaviour which causesa person to fear for their safety, 70these other features of domesticviolence were largely excluded.Immigration related abuseGiven the vulnerable positionof women on spouse visas asdependents, it is particularlycrucial that the kind of abusivebehaviours which women onspouse visas are subjected to arerecognised by the Courts as violent.Submissions to the AustralianLaw Reform Commission for thepurposes of the 1994 review ofthe DVP, as it was then structured,reported that violence againstwomen on spouse visas “includesphysical, sexual, emotional andpsychological abuse”. 71 In additionto this, anecdotal evidenceobtained for the purposes ofthis project suggests that a highproportion of abuse is in the formof sexual violence. 72 It is unclearwhether the Cakmak definitionof domestic violence excludessexual violence in the absence ofphysical force, or the threat of it,as sexual violence is not specificallyreferred to in the judgment. 73Financial abuse is “particularlyhigh” in the relationships ofsponsoring spouses and visaapplicants. 74 Where access toindependent finances is limited,escaping domestic violence canbe extremely difficult. Onesubmission to the ALRC stated:Most women never see anymoney at all… It can be equatedto the slave trade of the past.These women work for nothing,are abused emotionally andsexually and they see no wayout. 75The formalisation of the visaapplicant’s dependency on thesponsoring spouse 76 can mean thataccess to independent finances islimited. In this situation, a woman’slevel of vulnerability is raised. Theremoval of the right to reside inAustralia results in ‘a dislocationof one’s life plan’, 77 may resultin separation from children, andsome women may be blamed fortheir return and find their status asex-wives considerably diminishedor regarded unfavourably in thecommunity they have returnedto. 78 Knowledge of the likelihoodof these factors occurring can beused by male sponsors to threatentheir visa applicant wives withdeportation. Such threats may notinclude physical violence howeverthe use of power to control,coerce and dominate renders suchbehaviour abusive. The exclusionof abuse experienced specificallyby women on spouse visas fromthe definition of domestic violencein the Regulations, renders theThe exclusion of abuseexperienced specifi cally bywomen on spouse visas fromthe defi nition of domesticviolence in the Regulations,renders the DVP substantiallyless effective.DVP substantially less effective.When regard is had to the formsof behaviour that immigrationrelated abuse takes, the narrownessof the Cakmak definition isparticularly problematic.A gender neutral response to agendered harm: Discriminationagainst women?While the history surrounding thedevelopment of the DVP, and itsreview by the ALRC in 1994 makesit clear that these provisions area response to violence againstwomen, the language of theprovisions is gender neutral. Thepragmatism involved in devisinga legal remedy seems to demandgender-neutrality, 79 yet somefeminists argue that genderneutralityin response to genderedharms is dangerous for women. AMelbourne lawyer, Melinda Walkerargues that “the supposed genderneutrality of so-called domesticviolence places women in an evenmore dangerous position; the actswhich are perpetrated against themare deemed acts without agency,perpetrated by a person withoutan identity, and outside genderrelations”. 80 Feminist legal theoristCatharine MacKinnon puts forwarda similar analysis in relation to sexualviolence. 81 When gender-basedviolence is referred to in genderneutralterms, the acts of individualmen and indeed, male power,becomes invisible. The problemwhich this body of case law seemsto revolve around is the difficultyin allowing male applicants to useout. 75 continued on page 109

a provision that was specificallydesigned to respond to maleviolence against women, inflictedupon women because of theirstatus as women in the world. 82The concern to restrict men’suse of the DVP has occurred in apolicy climate of highly restrictedmigration. 83 In 1998, MaryCrock stated in her text on theforces shaping migration law,that “(n)ever has the grip of thegovernment's control been tighteror less susceptible to compassionatepleading”. 84 This policy climate hascontinued through to the present.For women on spouse visas, thiscontext compounds the problem ofaccess to legal remedies to domesticviolence. In her article “GenderingPermanent Residency Statistics”,Catherine Dauvergne states:“The question of discriminationin migration law is always aslippery one because selectingmigrants is an exercise indiscriminating. The nationdecides which migrants willbest meet its interests – bydefinition it discriminates. Sincethe official end of the ‘WhiteAustralia’ policy in the 1970’sthe official line has been thatAustralian migration law is nondiscriminatory.Seldom is thisclaim challenged on the basisthat migration law discriminatesagainst women.” 85Migration law which limits thedefinition of domestic violencediscriminates against womenbecause it negates recognition ofthe kinds of abuse experienced.Perhaps the Court needs to considerwhether the success of claims bymales whose claims are basedon emotional or psychologicalviolence, is less of a policy harmthan the exclusion of claimsby women who have sufferedimmigration related abuse whichmay not take a physical form.ConclusionThe Full Federal Court judgment inCakmak is particularly concerningbecause of the weight it carriesin lower courts, and the influencethis has on understandings ofdomestic violence in society atlarge. The judgment of Ryan J inKozel v Minister for Immigrationand Multicultural and IndigenousAffairs [2004] FCA 658 is anexample of the authority Cakmakcarries. Ryan J states:Insofar as ... (the) statutorydeclaration describes theviolence as ‘emotional abuse’,that cannot amount to domesticviolence as defined in sub-reg1.23(2)(b) in light of the recentFull Court decision in Cakmakv Minister for Immigration andMulticultural Affairs [2003]FCAFC 257. In that case, theCourt held, at [61-62], thatviolence in sub-reg 1.23(2)(b)is confined to physical violenceand I regard myself as bound toadopt the same interpretation.The case of Kozel also involvesa male visa applicant, and whilethis may be regarded as a positivestep in excluding illegitimateclaims for permanent residencyby those with decision-makingresponsibility in governmentbodies who maintain restrictivemigration policy, the exclusion of‘emotional abuse’ is of concern towomen generally, and particularlyto women on spouse visas whosuffer immigration related abuse ofthe kind described in this paper.Gendered power relations arecentral to the problem, but invisibleMigration law which limitsthe defi nition of domesticviolence discriminates againstwomen because it negatesrecognition of the kinds ofabuse experienced.in the remedy. It is the object ofany Court to develop principleswhich are applicable irrespectiveof the facts in any given case. 86Such an objective is crucial toprevent arbitrary rulings andensure certainty. 87 Courts needto ensure that the ramifications ofthe principles they develop do notexclude future legitimate claimants.It is a principal concern to considerwhether the rulings of the FullFederal Court exclude the claimsby women on spouse visas whosuffer immigration related abuse,that is emotional, psychological,sexual, financial or other. Whilethe principles developed in relationto the definition of domesticviolence may well exclude caseswhich are not considered to besufficiently serious, the narrowingof the definition renders the DVPineffective, and excludes manywomen who suffer immigrationrelated domestic violence fromaccessing a vital legal remedy.Postscript: The recent case ofSok v Minister for Immigration &Multicultural & Indigenous Affairs[2005] FCAFC 56 has providedmuch needed conflicting authoritywith regards to the definition ofdomestic violence. In this case, itwas held 2:1 that the Full FederalCourt’s comments in Cakmakin relation to the meaning ofdomestic violence were obiter andtherefore not binding. The majorityheld that for the purposes of theSok application, psychologicalviolence can be included withinthe terms of ‘domestic violence’. 88However, the minority decisionof Hely J upheld the Cakmakdefinition. While the Sok decisionis a very positive development,the extent to which Cakmak willcontinue to carry weight withinthe Department and the MigrationReview Tribunal remains unclear.against women.” 85 10

1 Australian Law Reform Commission (ALRC) Equality Before the Law: Justice For Women (1994) Report No 69 Part 1, 2172 ALRC (1994) above n i, 217.3 Terry Kaufman and Anna Sietz Who Will Protect Her?: Ethnic Communities’ Perceptions of Family Violence and Child Sexual Abuse: Phase 3: Arabic-Speakingand Turkish Communities (1995) 157 Victorian Health Promotion Foundation; Patricia Easteal Shattered Dreams: Overseas Born Women Who ExperienceDomestic Violence (1996) 10; Anna Raj and Jason Silverman ‘Violence Against Immigrant Women: The Roles of Culture, Context, and Legal Immigrant Statuson Intimate Partner Violence’ (2002) 8 Violence Against Women 367, 371; Edna Erez ‘Immigration, Culture Confl ict and Domestic Violence/Women Battering’(2000) 2 Crime Prevention and Community Safety: An International Journal 27, 28.4 See Migration Regulations 1994 (Cth) Div 1.5 and Sch 2.5 The terminology “DVP” is used by Australian Government Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) “Fact Sheet 38:Domestic Violence Provisions” viewed at http://www.immi.gov.au/facts/38domestic.htm on 15/04/2004. The abbreviation DVP will be used in this paper forconvenience. Note: it is not used in the case law referred to in this paper.6 This was an amendment to the 1989 Migration Regulations. See Mary Crock Immigration and Refugee Law in Australia (1998), 75 for a full discussion of thecontext in which this occurred. Also see http://www.scaleplus.law.gov.au/html/numrul/browse/TOCN1991.htm7 ALRC (1994) above n 1, 10.16; Catherine Dauvergne (2000) Dauvergne ‘Gendering Permanent Residence Statistics (2000) 11 Melbourne University LawReview 292, 296.8 See DIMIA (viewed on 15/04/2004) above n v.9 See ALRC (1994) above n i, 10.16-10.25.10 Ibid, 10.18-10.24.11 See Explanatory Statement Statutory Rules 1995 No. 117 viewed at http://www.scaleplus.law.gov.au/html/ess/0/1995/0/117.htm on 15/05/2004.12 The term ‘spouse visa’ will be used throughout this paper to refer to the class of visa relating to those applying for visas on the basis of being in a married, defacto or interdependent relationship with an Australian citizen or permanent resident. The Migration Act 1958 (Cth) provides for classes of spouse visas whichare set out in the Migration Regulations 1994 (Cth) regs 1.15A, 109A and sch 1. The criteria for spouse visas subclasses 820, 309, 801, 100 are set out in sch2. Fiancé visas are not considered as those people on fi ancé visas are not eligible for the DVP until they are married; See DIMIA viewed on 15/04/2004, aboven vi. People who are the spouse of those on Business skills visas are also eligible for the DVP (see subclasses in sch 2, also see Mary Crock (1998) above n vi,75-77).13 See Alin v Minister for Immigration and Multicultural Affairs [2002] FCA 979, 14 where it was held that domestic violence must cause the relationshipbreakdown; See also Karyn Anderson AIAL Seminar Paper Domestic Violence (2002), unpublished. See Migration Regulations 1994 (Cth) above n 21 fordefi nition of spouse, and for criteria that enables the application for permanent residency to continue where the relationship ceases and domestic violence hasoccurred.14 See Migration Regulations 1994 (Cth) reg 1.15A for the defi nition of spouse. For the specifi c criteria applicants must meet to obtain spouse visas see MigrationRegulations 1994 (Cth), Sch 2, Subclass 820, Subclass 801, Subclass 309 Spouse (Provisional), Subclass 100 Spouse. For a specifi c example see Sch 2onshore provisional visa; Subclass 820 – Spouse; 820.211(2)(c) and (c)(i) and 820.211(8) for criteria applicants must meet to obtain spouse visas and forcriteria that enables the application for permanent residency to continue where the relationship ceases and domestic violence has occurred.15 See Migration Regulations 1994 (Cth) div 1.5 and sch 2.16 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.23 (2)(b).17 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.21(1)18 See Migration Regulations 1994 (Cth) reg 1.12 and 1.12AA for defi nition of member family unit.19 See Migration Regulations 1994 (Cth) reg 1.09A for defi nition of interdependent relationship.20 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.23(1)(g) and (2).21 ALRC (1994) above n i, 10.16-10.25.22 A police report of an alleged assault can replace one of the statutory declarations of a competent person (See Migration Regulations 1994 (Cth) div 1.5 sub-reg1.24(1)(a)(ii)). See sub-regs 1.24(1)(b), 1.25 and 1.26 for statutory declarations as evidence.23 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.22 for a description of ‘competent persons’.24 See ALRC (1994) above n i, 10.16-10.25 for a discussion of the problems encountered before the evidentiary system of statutory declarations were introduced.25 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.23; See also Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003]FCAFC 257, [46-52] for how the Full Federal Court views the mix of fact and law as the basis for this evidence.26 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.26; see also the case of Du v Minister for Immigration and Multicultural and Indigenous Affairs[2000] FCA 1115 where a woman’s application was denied because of the insuffi ciencies of her doctor’s statutory declaration.27 See Migration Regulations 1994 (Cth) div 1.5 sub-reg 1.26.28 See div 1.5 sub - reg 1.25.29 See s 338 of Migration Act 1958 (Cth) for Decisions Reviewable by Migration Review Tribunal.30 See specifi cally Migration Regulations 1994 (Cth) div 1.5 sub-regs 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26; See also Cakmak Minister for Immigration andMulticultural and Indigenous Affairs [2000] FCA 1115 [48-50].31 Ibid [52].32 Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 111533 Ibid.34 Therese McCarthy Public Health, Mental Health and Violence Against Women: Report Produced for VicHealth (2003) 10; Domestic Violence and IncestResource Centre (DVIRC) “What’s in a Name? Defi nitions and Domestic Violence” Discussion Paper No. 1 (1998) 2; Catharine MacKinnon Towards aFeminist Theory of State (1989) 135.35 Comprehensive attempts have been made to obtain statistics relating to the gender breakdown of appeal cases from DIMIA. As of 21/08/05 none have beenmade available.36 See Chris Atmore ‘Men as Victims of Domestic Violence: Some Issues to Consider’ Discussion Paper No 2 (2001) for a comprehensive discussion of this issue.37 A discussion of the structure of the Spouse Visa is included in a more comprehensive paper being developed for a law review.38 Regina Graycar and Jenny Morgan Hidden Gender of Law (1st ed 1990, 2nd ed 2002), 311.39 Cakmak [2003] FCA 1115, [32].40 Ibid, [25-33].41 See Cakmak v MIMIA [2004] HCATrans 558; See also Clothier Anderson and Associates Application Seeking Special Leave to Appeal to the High Court by thevisa applicant Mr Cakmak (2004).42 Ibid.43 Cakmak [2003] FCA 1115 [61].44 Ibid.45 Clothier Anderson and Associates (2004) above n xli, 22; Giorgianni v The Queen (1985) 156 CLR 473 at 477 per Gibbs CJ, at 490-4 per Mason J.46 Cakmak [2003] FCA 1115 [25-33].47 Ibid [26], [30].48 Ibid [60].49 A discussion of these cases is included in a longer article being developed.50 Cakmak [2003] FCA 1115 [60].51 Ibid52 Ibid [61].11

53 See John Gardner and Stephen Shute “The Wrongness of Rape” in Jeremy Horder (ed) Oxford Essays in Jurisprudence (2000) 193-217, 195.54 Kieran O’Hagan Emotional and Psychological Abuse of Children (1993) 14.55 University of South Australia, Reshaping Responses to Domestic Violence, Final Report (2000) 21; Victorian Law Reform Commission Review of FamilyViolence Laws Consultation Paper (2004), 2.15-2.20.56 University of South Australia, above n lv, 42, 23 table 5.3, table 5.2.57 Ibid, 23-25.58 Ibid, 23.59 Ibid, 21.60 Liz Kelly and Jill Radford ‘Nothing Really Happened: The Invalidation of Women’s Experiences’ in Marianne Hester et al (eds) Women, Violence, and MalePower: Feminist Activism, Research, and Practice (1996) 28-37.61 Cakmak [2003] FCA 1115 [61].62 Cakmak [2003] FCA 1115 [62].63 See Ibid [62] and [67] respectively.64 Anna Raj and Jason Silverman (2002) above n ii, 367, 371; Edna Erez (2000) above n ii, 27, 28.65 See Commonwealth government: Partnerships Against Domestic Violence ‘Framework for Developing Approaches to Domestic Violence 2001-2003’viewed at www.padv.pdmc.gov.au/framework_2.htm on 13 November 200466 See Victorian Community Council Against Violence Victorian Family Violence Database (First Report 2002) 2; This defi nition was developed by the VictorianCommunity Council Against Violence and the Project Reference Group; adapted from Deborah Walsh, ‘Domestic violence in pregnancy’, Domestic Violence andIncest Resource Centre Newsletter, vol 1 2000, 12-17. See also Tania Hall and Sue Wright Community safety practice briefi ng: Making it count – a practical guideto collecting and managing domestic violence data, Nacro Crime and Social Policy Section, 237 Queenstown Rd, London, also www.nacro.org.uk; 2.67 See Victorian Law Reform Commission above n lv, 2.2-2.5.68 Ibid.69 See Julie Behrens ‘Ending the Silence, But… Family Violence under the Family Law Reform Act 1995’ (1996) 10 Australian Journal of Family Law 35, 36;Women’s Domestic Violence Crisis Service What’s Love Got to Do With It?: Victorian Women Speak About Domestic Violence Annual Report 2001-2002 (2003) 8.70 Cakmak [2003] FCA 1115.71 ALRC (1994) above n i.72 Interviews for this research paper were conducted with community service agencies and migration lawyers as part of the Victorian Law Reform CommissionFamily Violence Reference, in accordance with University of Melbourne Ethics Committee guidelines. These guidelines require that all identifying material isremoved from published material. Interview 2 (27/7/2004).73 Cakmak [2003] FCA 1115.74 ALRC above n i.75 ALRC above n i.76 A discussion of the structure of the Spouse Visa is included in a more comprehensive paper being developed for a law review.77 Thanks to Lisa Sarmas, lecturer in law at the University of Melbourne Law School for putting forward this idea during discussions of this research.78 Terry Kaufman and Anna Sietz Who Will Protect Her?: Ethnic Communities’ Perceptions of Family Violence and Child Sexual Abuse: Phase 3: Arabic-Speakingand Turkish Communities (1995) 157.79 For a discussion of the ideal legal subject see Katherine O’Donovan “With Sense, Consent, or just a Con?” in Ngaire Naffi ne (1997) Sexing the Subject of Law 44.80 See Melinda Walker ‘Interpreting the Figures: Increases in Women’s Violence or Just More Masculinist Legal Tactics?’ The Australian Feminist Law Journal 5(1995) 123-125, 125; Interview 4 (5/8/2004).81 Catharine MacKinnon (1989) above n xxxiv, 131-134.82 Marianne Hester (1996) et al (eds) Women, Violence, and Male Power: Feminist Activism, Research, and Practice (1996), 3.83 Mary Crock (1998) above n vi, 1.84 Ibid.85 Catherine Dauvergne (2000) ‘Gendering Permanent Residence Statistics (2000) 11 Melbourne University Law Review 292.86 See Tony Blacksheild and George Williams Australian Constitutional Law & Theory: Commentary & Materials (3rd ed 2002) 105-112.87 Ibid.88 See the decision of Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 56at http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/56.html12

world refugee dayCHINDAR TEO – JUSTICE COMMITTEE, LIV HUMAN RIGHTS COMMITTEEAMNESTY INTERNATIONAL VICTORIAN REFUGEE TEAMSOLICITOR AND MBA STUDENTChindar TeoAs part of AmnestyInternational Australia’s(AIA) campaign to endindefinite detention, thousandsof Australians participatedin Daybreak in Detention,an event that seeks to raiseawareness around the issueof indefinite detention.Daybreak in Detention, whichwas held on 19 June, began threeyears ago after concerns wereraised about the conditions ofimmigration detention centresin Australia. The event has alsohelped to draw attention to WorldRefugee Day, held on 20 June each.Most of these refugeesand displaced persons livein dangerous situationsthat involve uncertainty,homelessness and despair.Daybreak in Detention was held atFitzroy Town Hall in conjunctionwith the Refugee Council ofAustralia and the Multicultural ArtsAustralia World Refugee Day Festival.At this year’s event, a stall and letterwritingcampaign was organised tojoin celebrations around the world.In 2003, the UN High Commissionerfor Refugees estimated thenumber of refugees to be 10.4million. Most of these refugees anddisplaced persons live in dangeroussituations that involve uncertainty,homelessness and despair.The world needs to fi nd itshumility and remember itshumanity to help those whohave lost it.”Developing countries are host toan estimated 78 per cent of theworld’s refugees, many of themalso struggling to protect therights of their own citizens. Aminor percentage of refugees areresettled to places where theycan make a new start. Othersreturn to their country of origin,but are often pressed to do sobefore they are ready or beforetheir country is ready to receivethem. Some are able to stay intheir country of asylum, to live andto work, and to enjoy legal rightslike the citizens of the country.”In the developed world, in countriessuch as those in Western Europe,North America, or Australia, itis getting harder and harder forrefugees to find protection. Thesegovernments have introducedrestrictions like stringent visarequirements, penalties on airlinesthat bring asylum-seekers intoa country, and detention. Theserestrictions are designed to deterpeople from coming to theircountries to seek protection.” 1This year, Amnesty Internationalturned its attention to the practiceof arbitrary detention and unlawfulexpulsion of refugees and asylumseekersaround the world. 2A letter to Amnesty Internationalfrom a detainee who had spentthree years in detention in Australia,highlights the work that needs tobe done nationally and globally tohelp refugees regain their humanity.“I believed Australia is a peacefuland democratic country and Ibelieved I would receive justicehere. Instead I am imprisoned.” 3World Refugee Day is a time tothink about the plight of refugees:as human beings and theirrights, in a world that believes inhumility. It is a time to rememberthat we, as lawyers, have theprivilege to serve humanity.The world needs to find its humilityand remember its humanity tohelp those who have lost it.I believed Australia is apeaceful and democraticcountry and I believed Iwould receive justice here.Instead I am imprisoned.For more information on AmnestyInternational Australia’s campaignagainst indefinite detentionand other work defendinghuman rights, contact:Amnesty International Australia’sVictorian Activist Resource Centreon vicaia@amnesty.org.au orvisit www.amnesty.org.au1 www.amnesty.org.au, 20052 ibid.3 What’s happening to our humanity?,Amnesty International Australiapamphlet, p3, June 200513

“help arriving”INTERVIEW BY MICHELLE TESORIEROHutch Hussein, Settlement Services Manager at the Northern MigrantResource Centre, goes home each day knowing she helps make adifference to the lives of newly arrived refugees and migrants.Michelle TesorieroThese are some of thecases that Hutch Husseinis involved with in her role asSettlement Services Managerat the Northern MigrantResource Centre (NRMC)in Victoria’s north-east.Based in Preston (and with officesin Thomastown and Coburg), theNMRC’s primary objective is tohelp recently-arrived migrants andrefugees integrate into their newcommunity. The NMRC sees peoplewho have been in Australia for lessthan six years. While the centrehas a client base representing over65 different ethnic and languagegroups, the majority of clients arenewly arrived Arabic, Somali andAssyrian-speaking people. Recently,the centre has experienced anincrease in the number of Iraqipeople accessing their services.As Settlement Manager, Husseinsupervises a team of 19 staff whowork in one of two sub-teams.“One team works with humanitarianrefugees from the time theyarrive until they have been herefor about six months,” explainsHussein. “For example, oncenotified by DIMIA (Departmentof Immigration, Multicultural andIndigenous Affairs) of a new arrival,this team does airport pick upsand helps new arrivals with thingssuch as setting up bank accounts,• A Kenyan woman, recently released from Port Hedland, is trying toget a visa for her nine year old son who she lost contact with duringfighting in the Somalia-Ethiopian civil war. While in detention, shelearns her husband has died of malaria.• A 12 year old Sudanese boy is about to be suspended from schoolbecause he keeps getting into fights. When he is not at school, he isbabysitting his three younger siblings while his mother struggles with anew culture she can’t understand.• A family, who have spent a decade living in tents at a refugee camp inCentral Africa, feel scared in their new housing. They don’t understandhow to use the light switches or flush the toilet, and they are surprisedto learn that the running water will still be there tomorrow.settling into the transitionalinformation sessions on topicshousing they have for the first four such as immigration procedures,weeks, helping them then apply tenancy law, employment andfor private rental, registering with socialising in Australia.”Medicare and enrolling childrenSome clients also require financialin school. Staff in this team canassistance and the NMRC canalso help clients find Englishprovide financial assistance includinglanguage classes and employment.access to an emergency relief“The other team I supervise provides program; a no interest loan schemean intake service to refugees and for essential household goods andmigrants who have been in Australia subsidies for young people wantingfor between six months and six to access skills and training courses.years. This team is responsible for“In terms of what people come toassisting and advocating on issuesthe NMRC for, it is almost alwaysrelating to immigration, housing,immigration advice – typicallyemployment, financial assistancethis is clients trying to get theirand family matters,” she says.families and relatives to join themAccording to Hussein, newlyin Australia. The next major issuearrived migrants and refugees is housing and accommodation.are hungry for information about We find that a lot of newly arrivedtheir new country. “In settling clients (especially from westinto a new country, many clients and central Africa) have largehave lots of questions aboutfamilies and getting adequatevarious Australian systems and housing for them is difficult.”their own particular situations.To assist them, we provide14

Workers at the NMRC, includinga number of registeredmigration agents, help clientsunderstand the migrationprocess. They can also provideadvocacy and support in refugee,humanitarian and family cases.As well as offering settlementservices, the NMRC provides arange of programs and servicesincluding employment assistanceprograms and ethno-specificaged and disability services. Italso provides a meeting place forvarious social groups such as theSudanese Women’s Group andthe Assyrian Chaldean Women’sGroup. The NMRC undertakesconsulting and strategic worksuch as building links with otherorganisations and agencies that areinvolved in the settlement process.While statistically men comprisemost of the centre’s clients, Husseinsays this probably reflects the factthat men are responsible for mostof the communication in somecultures. According to Hussein,while clients have needs specific totheir gender, many of the issuesfaced by migrants and refugees arecommon to both men and women.She points to issues such as racism,social isolation, a lack of networksand the fact that their skills andqualifications are often not properlyrecognised in Australia, meaninga loss of professional status.For refugees of bothgenders, issues faced includecommunication barriers;physical health issues such asmalnutrition; mental healthneeds such as overcomingtorture and trauma; an inabilityto assist their children withtheir homework; a lack ofsocial networks; and a lack ofunderstanding of the system.In terms of gender specific issues,Hussein says male migrants andThe NMRC provides arange of programs andservices including employmentassistance programsand ethno-specifi c aged anddisability services.refugees often struggle with “howmany rights their wife has”. Forexample, some are shocked thattheir wife’s Centrelink benefitsmust be paid into her separate bankaccount. Many also experienceinter-generational conflict with theirteenage children over “Australiannorms” like having a boyfriend/girlfriend, taking recreationaldrugs or going out to nightclubs.Hutch HusseinFemale clients, says Hussein, havea different set of needs. “Thereare many single-female-headedhouseholds, due to the loss oftheir partners to war or AIDS,and many experience financialdifficulties and struggle to findsuitable housing to support a largenumber of children, or in findingappropriate childcare from someonewith their own background.”Some women migrants andrefugees are illiterate in theirown language as well asEnglish. Many experience depressionfrom a feeling of isolation anda lack of support networks.Hussein says migrants andrefugees also struggle withthe law in Australia.“We see quite a few consumerlegal issues where our clientshave fallen victim to bogus mobilephone contracts, alarm systemcontracts or cable TV contracts.”The centre also sees situations whereclients – struggling to understandthe local driving regulations – faceparking and fines for driving withoutlicenses. In these situations, theNMRC help by explaining the law orthe particular contract or referringthe client elsewhere such as a legalcentre or consumer affairs body.An emerging legal issue, saysHussein, is family violence.“The law in Australia conflicts withthe law in many people’s homelands.In most African countries, thelaws favour the awarding ofcustody to the father in the eventof separation because the fatheris usually the breadwinner andprovider.” In this sensitive area, theNMRC is able to provide adviceand refer clients to the policeor domestic violence services.Hussein has had a long-standinginterest in community andmulticultural affairs. Havingobtained degrees in Arts and SocialWork, Hussein spent a year overseasbackpacking through Jordan, Egypt,Kenya, Tanzania, Malawi, Zambia,Zimbabwe, Thailand, Laos, Vietnam,India, Cyprus, Turkey and Morocco.She also spent some time workingin London helping child refugeesfrom Somalia, Eritrea and Kosovosettle into their new communities.Back in Australia, Hussein spentseveral years doing outreach workwith young people in Melbourne’swest before taking a role as ancontinued on page 16Our role is to open doors,open access and empower thesepeople to reach their potential.We make a difference topeople’s lives, which is a greatfeeling to leave the offi ce withevery day.15

adviser to Mary Delahunty, thenMinister for Education and Women’sAffairs. However, while Husseinenjoyed being able to help peopleon a macro-level and effect systemicchange, it was helping people ona micro-level that Hussein foundthe most rewarding. So earlier thisyear, Hussein joined the NMRC.“It is an incredibly rewarding field asit means you are often working withpeople who have limited resources,limited English and limitedopportunities. Our role is to opendoors, open access and empowerthese people to reach their potential.We make a difference to people’slives, which is a great feeling toleave the office with every day.”How can you help?The NMRC has a volunteer programand is currently seeking volunteersto assist with its basketball programfor at-risk young Sudanese andSomali boys and girls. The NMRCparticularly needs help on matchdays (Saturdays). For moreinformation visit www.mrcne.org.auor email hutchh@mrcne.org.au.victorian immigrant and refugeeswomen’s coalitioninterview with Nurcihan Ozturk, executive offi cerBY PRUE BURRELL – SOLICITOR, GADENS LAWYERSEvery time there is a terroristattack, Muslim women have toduck for cover.Prue BurrellThe experience of Muslimwomen in suburban Victoria,in the wake of September 11 andthe recent London terror attacks,demonstrates that ignoranceand prejudice are still a veryreal part of a multiculturalAustralia and highlights theimportance of an organisationsuch as the Victorian Immigrantand Refugees Coalition (VIRWC)to represent immigrantand refugee women instriving towards equality.Prue Burrell spoke with NurcihanOzturk, Executive Officer of VIRWCabout some of the challengesfaced by immigrant and refugeewomen and the role VIRWC playsin meeting those challenges.“After September 11 a lot ofwomen particularly Muslimwomen wearing the hijab werehaving problems. You can’tdifferentiate between an Islamicman and a non-Islamic man,but with women, you can ifthey are covered. The onesthat were covered, as part oftheir day to day routines wouldgo out for walks with three orfour friends. After September11 they had to stop, becausethey were being beeped at andpeople would wind down theirwindows and swear at them- like it was their fault. Therewas a real backlash and thefi rst thing that people backlashagainst is something which isforeign to them,” said Nurcihan.Preconceived ideas of what aparticular ethnic group as a wholestands for are often perpetuated bythe media as Nurcihan explained.Nurcihan Ozturk“The media has a lot to do withmaking people .... very scared,intimidated and vulnerable.”“You read that all people whoare of Islam faith are fanatics,fundamentalists and they willbomb you and they will hurtyou, but when people actuallymeet someone of the Islam faiththey realise that there is noconnection between what is in themedia and the person they met.”The impact that communityperceptions have on the experienceof the Muslim community is onlyone of the consequences of recentterrorist activities. At a recenttraining event, Nurcihan says thatmembers of the Muslim communitywere voicing concerns about thebroad powers the government hasunder new counter-terrorism laws.16

“They are concerned with thenew laws, that are in, or thatare going to come in, wherebythe police come to you home,bash down your door, takeyour husband or take your kidsbecause there has been somesort of terrorist activity takingplace. You can’t ask questions,you can’t ask, “well where areyou taking my husband”. Whatis the recourse going to be forthose women and those childrenof trying to fi nd out where theirhusband or where their fatheris. They could be taken away fordays and this is not supposed toscare anybody. This is supposedto make life easier for people.”Nurcihan has experienced firsthand the potential injustice whichcan arise from someone beingmistakenly accused of a crime.“A simple example of a relative ofmine, who has a very commonTurkish name in the fi rst nameand common Turkish surname.He unfortunately had the samename as another person accusedof people smuggling. At fouro’clock in the morning, they [thefamily] are sleeping in their beds,the door gets banged and theycome out in their pyjamas andhere is fi ve or six civilian dressedpolice, federal police of whatever,saying you have to come withus, come with you for what? infour o’clock in the morning?only because he had the samesurname as a people smuggler.What if it was a John Smith thathad done something? I meanhow many John Smith’s can youfi nd in the phone book. Imaginebashing down 100 John Smith’sdoors saying you have to comewith us for an interrogation.”It is these types of injustices whichin part influenced Nurcihan tobecome involved in speaking out onmigrant issues, something which shewas exposed to from a young age.“I came out here in 1969 fromTurkey ... at very young age,with a family who had noEnglish. I had just gone throughone year of primary schoolin Turkey, so with my limitedTurkish and no English I wasexpected to interpret for myparents because we were going toschool. Along with my brothersand sisters, we were sometimestaken out of bed becausesomebody was in trouble withthe police, as kids we had to goand interpret for them, becausethey didn’t know English.”Nurcihan had been vocal in thetrade union movement representingthe views of non-english speakingworkers, and this was how shecame to be invited to be involvedwith VIRWC in its inception.“I was working in the tradeunion movement where youare surrounded by people fromvery diverse backgrounds.”The idea for the coalition wasborne out of an assembly of 200immigrant and refugee women in1994 called “Voice our Diversity”which mandated an interimcommittee to work towardssetting up a statewide advocatebody of women from diversecultures who are committed to thegoal of achieving cultural, social,continued on page 18The Honourable Mary Delahunty together with members of the VIRWC.17

economic, political, educationsand sexual equality. In July 1997,a group of 25 women formallyset up the VIRWC by approvingits Constitution and electing fourinterim office bearers prior to itsfirst Annual General Meeting. TheVIRWC held its first AGM on 26November 1998 and a committeeof management was elected.“The people that were involvedin forming of the coalition, wereall of non English speakingbackgrounds. We didn’t wantdominating ethnic groups, so wewere only allowed to have onemember from each ethnic group.”Today, the committee ofmanagement still representsa very diverse cross sectionof ethnic groups.“We have women who areFilipino, Eritrean, Assyrian-Chaldean, Indian, Iranian,Iraqi, Brazilian, and wehave an Australian. Then ofthe workers we have myself- Turkish, Lebanese, andFilipino,” said Nurcihan.Today, the coalition works cooperativelywith relevant local,regional, state and national agenciesand community organisations.It supports and assists in thedevelopment of immigrantand refugee women’s groupsin Victoria. It promotes accessand equity for immigrant andrefugee women and monitors theimpact of government policy onthem to ensure that governmentpolicies reflect their needs.As Nurcihan explains, “We areregularly called upon bygovernment to bring in thenumbers, so to speak, whenthey are conducting a forum,whether that be at a local level,state level or federal level.”The VIRWC, with its advocacy rolealso takes on various campaignspertinent to their membership,such as the wrongful deportationof Vivian Alvarez Solon.“We conducted a communityforum about two months ago andat that community forum we hadover 60 people attend. We arein the link with Vivien’s solicitorso we get regularly updated withwhat is happening on that end.”Another recent campaign conductedby VIRWC focused on NehedaBarakat and her experiencewith bullying in the ABC.“The issue was really signifi cant.You have a person from a nonEnglish speaking backgroundbeing treated in that way. Ithink it is good that there is arecognition that bullying didtake place and an externalperson will now look into theissues of bullying within the ABC- which is a huge achievement.”The coalition prides itself, notonly on vocalising the views of itsmembership through lobbying andadvocacy, but being involved withcommunities at a grass roots level.“We have a lot of peopleparticipating in our trainingand information sessions. Weadvocate on their behalf and wedo a lot of referral work on theirbehalf. Our base with the grassroots community organisationsis next to none,” said Nurcihan.The training provided byVIRWC empowers womenthrough education.“We have done work with theAssyrian-Chaldean women. Thetraining they wanted is a reallybasic training. This is reallywhere a lot of our women werein isolation so they wantedto bring them out, they hadsort of minor roles within theircommunity but they wantedto learn more and be a bitmore assertive. The trainingMembers of the VIRWC.18

that we delivered to them wasreally basic communicationskills, negotiation skillsand also running meetingsand meeting procedure.”The training also provides womenwith a forum to meet otherindividuals from a non-englishspeaking background and sharetheir views and concerns.“We recently conducted atraining, which was a bit moreadvanced, with the City ofKingston with a mothers club,who are involved in the runningof that kindergarten. Thattraining was on negotiationsskills and communication,meeting procedure, fi nances,how they would run themothers club, or other groupsthat they were involved withand how they would holdaccounts and records.”“A lot of the women in this groupwere very educated in theircountry of origin, but didn’t havethe qualifi cations in Australiaand that is a huge problem witha lot of the grassroots women...Where they could be practicingsolicitors in their country,medical doctors or nurses intheir country, they are not ableto continue with that professionhere. Some of them are takingthe step of going to furthereducation to get their skillsrecognised and others are saying‘well I have come to a differentcountry, my family needs me, Ihave a growing family I can’tdo that at the moment’.”The training programs alsoprovide a venue for VIRWC to beexposed to new members and theissues of those ethnic groups.“At the City Of Kingston, wehad people there from theIndian community, Bangladeshcommunity, Somaliancommunity and Samoancommunity. That was thefi rst time we were exposed tothe Samonian community in atraining forum. They have hugeproblems with their youth. Intheir culture when you are of acertain age you have to showyour manly strength and itdoesn’t connect in Australia. Youjust can’t go out in Australia toa nightclub and have a brawl, itshouldn’t happen. Their culturesays one thing but the practicehere is a different thing. Thecross cultural sensitivity is ahuge issue, it doesn’t matterwhich culture you come from,every culture has its ownpractices, their own beliefs, thatthey want to continue here, someof them you are able to, othersyou are not able to. That isa huge dilemma, that is facedby some of the communities.”Nurcihan considers the strongpresence of VIRWC at thegrassroots level as one of coalitionsgreatest strengths and one of themost rewarding aspects of herinvolvement with the organisation.“We are unique in that we areable to hone in on the grassroots,we can access them and attendmeetings or functions that theyare delivering without anydiffi culty. I know that there aremainstream organisations, thatcan’t access it, that come to usto access a particular ethnicgroup, which is something to bevery proud of,” said Nurcihan.VIRWC provides a uniqueopportunity for women ofdiverse backgrounds to cometogether and as a united fronthave their views and voice heardin the mainstream community.As Nurcihan explains a real senseof pride can be derived from thefact that there is such a thing asa women’s coalition, that peopleknow of the organisation and whatit stands for and that individuals cancome to the group without any fearof reprisal for voicing their opinions.“It doesn’t really matter whatethnic group people are in, wecan connect with them, andthey can then connect withother groups.....you can comeinto a forum and sit arounda table of say 20 people, andthe 20 people can be from verydiverse backgrounds and yetthey are all working together”.19

immigration lawyers associationof australasia (ILLA)BY MARIA JOCKEL – VICE PRESIDENT ILLAMaria JockelSince 1992, the law hasonly allowed registeredmigration agents to provide“immigration advice” in Australia.Anyone (including lawyers andpeople who work for voluntaryorganisations and provideadvice free of charge) using theirknowledge of migration proceduresto operate, advise or assist aperson wishing to obtain a visa toenter or remain in Australia mustbe a registered migration agent.As a result, lawyers who practiceas migration agents are subjectto two tiers of control, namely:• the rules and regulations oftheir professional association(the relevant law society thatthey are a member of andwhich issues them with theirpractising certificate); and• by virtue of the Migration Act1958 (Cth) (the Act) and theMigration Agents Regulations1998 (Cth) (the Regulations)they must be registeredwith the Migration AgentsRegistration Authority (MARA).In 1998 the Minister for Immigrationand Multicultural Affairsappointed the Migration Instituteof Australia Limited (MIA) (aprivate sector industry associationrepresenting predominantly nonlawyermigration agents) as theMARA and conferred upon it thestatutory powers to administerthe Act and the Regulations andto undertake the role of industryregulator, by entering into aDeed of Arrangement betweenthe Commonwealth of Australiaand the MIA which now haseffect to 31 March 2009.The appropriateness of a privatesector industry associationadministering the relevant provisionsof the Act and to undertake the roleof industry regulator (particularlywhen the MIA predominantlyrepresents non-lawyer migrationagents) is questionable.The ILAA was established in2003 to meet the needs ofImmigration Lawyers practisingin Australia and New Zealand.• The ILAA is active in practisingand promoting awareness about:• immigration law and policy;• citizenship and nationalitylaw and policy;• refugee law and policy;• international law relevant tomigration and refugees; and• human rights law and policy.As a not-for-profit and non-politicalprofessional association, theILAA advocates and promotesthese purposes by providing:• forums for discussion anddebate including seminars,conferences and continuinglegal education;• papers and submissions onmatters of policy, practiceand procedure; and• networking, mentoringand information exchangefor its members.The ILAA Executive currentlycomprises of Glenn Ferguson(QLD) President, Maria Jockel(VIC) Vice President, David Prince,Mark Tarrant and Michael Jones(NSW), Melissa Haag Erskine Rodan(VIC) and David Ryken (NZ).The Executive of ILAA has beenvery active in submissions to FederalGovernment relating to variousmigration inquiries and reviews.The ILAA has worked closely withthe Law Council of Australia, theLaw Institute of Victoria, theNew South Wales Law Societyand Queensland Law Society inrelation to those submissions.Immigration Lawyers (andacademics) interested in the workof the ILAA can have a look at theILAA website www.ilaa.asn.au/web/20

• correspondence addressedto one or other of theparties to the relationshipshowing the same address.Social aspects of the relationshipThe following factorsmay be considered:• whether the persons presentthemselves to other peopleas a committed couple(regardless of whether theyare legally married or not);• the opinion of the persons’friends and acquaintances aboutthe nature of the relationship;• the basis on which theymake plans for, or engagein, joint social activities.Evidence might take the form of:• acceptance of the relationship byGovernment bodies or authorities;• statements by parents, familymembers, relatives andother interested parties;• joint membership of organisationsor groups, evidencing jointparticipation in sporting,cultural or social activities;• joint travel.A written statement regardingthe history of the relationshipmust also be provided in supportof the Partner Visa application.This should cover issues such ashow, when and where the couplefirst met, how the relationshipdeveloped, when they decided tomarry or commence a relationship,their domestic arrangements, anyperiods of separation, and theirfuture plans. This will enablethe decision-maker to assess thecontinuity of the relationship.Evidence must also be providedas to the nature of the couple’scommitment to each other.Some factors which mayevidence commitment toeach other might be:• the duration of the relationship;• the length of time during whichthe persons have lived together;• the degree of companionshipand emotional supportthat the persons drawfrom each other; and• whether they see the relationshipas a long-term one.These factors mightbe evidenced by:• knowledge of each other’spersonal circumstances;• the extent to which they havecombined their affairs;• the terms of any wills madeout in the other’s favour; or• letters and telephone accounts toshow that contact was maintainedduring any period of separation.Unless the couple has been in arelationship for 5 years, or for 2years if they also have a child orchildren with their partner, thevisa applicant will be granteda 2 year temporary visa. At theend of the 2 years, counted fromthe date of the visa application,a couple will need to showthat they are still in a genuinerelationship. After confirmationthat the relationship is still genuineand continuing, the permanentresidence visa may be granted.Under the Migration Act1958 it is an offence to:• arrange a marriage for thepurposes of obtainingpermanent residence;• make false, misleading orunsupported statements inrelation to whether or notother persons have a genuineand continuing maritalrelationship between them.If the relationship fails beforepermanent residence is granted,the visa applicant can only begranted permanent residence ifcertain exemptions such as claimsof domestic violence are met.In order to enhance the integrity ofprovisions for the grant of a visa onthe grounds of domestic violence,the provisions relating to domesticviolence were recently amended.These provide that if an applicationfor a visa includes a non-judiciallydetermined claim of domesticviolence, the Minister must considerwhether the alleged victim hassuffered relevant domestic violence,and, if satisfied that the allegedvictim has suffered relevant domesticviolence, consider the applicationon that basis, or alternatively, andmore significantly, if not satisfiedthat the alleged victim has sufferedrelevant domestic violence, seek theopinion of an independent expertabout whether the alleged victimhas suffered domestic violence.The provisions allow the Minister torefer claims of domestic violenceto an independent expert forassessment. The nominatedindependent expert is Centrelink.The provisions also providethat the Minister must take anindependent expert’s opinion onwhether the alleged victim hassuffered domestic violence, to becorrect for the purposes of decidingwhether the visa should be grantedon domestic violence grounds.22

Marrying an Australiancitizen or permanent residentdoes not guarantee residencyin Australia. There is alabyrinth of regulations andpolicy criteria.The Migration Act also containslimitations on the approval ofsponsorships for spouse, prospectivespouse and independency visas.This restricts the number of timesa person may sponsor an applicantfor a partner visa to two times bypreventing approval of sponsorshipif visas have previously been grantedto more than one person on thebasis of a relationship with the samesponsor. The effect of the provisionis that the two sponsorshipsmust be at least 5 years apart.Recent amendments to theMigration Act impose additionalrestrictions on sponsors bypreventing the approval of furthersponsorships where more thanone person has previously beengranted a visa on the grounds ofhaving ceased a partner relationshipwith the sponsor after the person(or another person such as amember of the sponsor’s familyunit) suffered domestic violencecommitted by the sponsor.One questions whether theselegislative provisions are fairor appropriate. Certainly theyadd to the complexity of whatis already a highly codifiedand complex system of law.Marrying an Australian citizenor permanent resident doesnot guarantee residency inAustralia. There is a labyrinthof regulations and policy criteriathat each visa applicant andtheir sponsor must meet.All the more reason to obtainadvice about your situation froma good immigration lawyer.1 Multicultural Melbourne A Special Report Base 240-Part Harmony by Claire Miller The Sunday AgeJuly 24, 2005 p.112 3412.0 Migration Australia, Australian Bureau of Statistics p.13 ibid, p.24 Immigration Fact Sheet – Migration Program Planning Levels 20 Migration Non-HumanitarianProgram 2003-04 and 2004-055 3306.0.55.001 Marriages Australia, Australian Bureau of Statistics p.16 ibid, p.423

Recent Newsaward workers win familyfriendly provisionsBY VIRGINIA JAYVirginia JayOn 8 August 2005, a FullBench of the AustralianIndustrial Relations Commissionhanded down its long-awaiteddecision in the Family ProvisionsTest Case.The ruling was much anticipatedin light of the broader social policyissues of declining fertility rates, theeffects of an ageing populationand expected future labour marketshortages under increasing mediaattention. However, the applicationand long-term effect of the decisionis unclear as the detail of theHoward Government’s proposedworkplace relations reforms is notyet known. The ruling constitutesa significant public statement inrelation to the work/life/family/carer debate and comes aheadof the yet to be released reportof the House of RepresentativesStanding Committee, the “Familyand Human Services Inquiry intoBalancing Work and Family”. 1The claimsThe Commission considered13 applications to vary federalawards to incorporate provisionsaimed at assisting employees tobetter balance work and familyresponsibilities. The ACTU soughtsignificantly enhanced family friendlyprovisions including unpaid parentalleave of two years, an automaticright for mothers to return to workon a part-time basis until the childreaches school age, the right topurchase six weeks’ additionalleave per annum and reasonableunpaid leave for carer emergencies.Employer groups sought theremoval of various restrictions inawards which, it was submitted,prevent employers and employeesfrom implementing flexible workarrangements at the enterprise level.The Commission observedthat whilst enterprise levelbargaining had led tothe introduction of familyfriendly measures in manyworkplaces, the results wereuneven across industries.These included measures such asallowing employees to exchangeleave loading and penalty rates foractual leave and to ‘bank’ extratime worked in exchange for leave.The Commonwealth and State andTerritory Governments also madesubmissions as interveners in thecase, as did the Human Rights andEqual Opportunity Commission anda number of other interested parties.The rulingIn its decision, the Commissionaccepted that it should take apositive step to assist employeesto reconcile work and familyresponsibilities. It acknowledgedthat family friendly benefits inworkplaces are associated withincreased female employmentrates, which is desirable in lightof declining fertility rates andincreased carer obligations fordisabled and elderly personsassumed predominantly by women.The Commission observed thatwhilst enterprise level bargaininghad led to the introduction offamily friendly measures in manyworkplaces, the results wereuneven across industries. Howeverthe Commission did not considerit appropriate to give employeesunconditional rights to additionalleave and flexible hours. Insteadit preferred a more consensualapproach to implementingfamily friendly measures.The Commission decided on anew ‘right-to-request’ provisionunder which employees whoentitled to parental leave undera federal award may request:• an extension of the time in whichboth parents may take unpaidparental leave for up to eightweeks when the baby is born;• an extension of unpaid parentalleave for up to 12 months(meaning a maximum parentalleave period of 24 months); and• a right to return from parentalleave on a part-time basis untilthe child reaches school age.24

Recent NewsUnder the new provision, anemployer must consider anemployee’s request havingregard to the employee’scircumstances and may onlyrefuse it on reasonable groundsrelated to the effect on theworkplace or on the employer’sbusiness which includes cost,lack of adequate replacementstaff, loss of efficiency and theimpact on customer service.The Commission also adopted anew measure requiring employers toconsult with employees on parentalleave in relation to significantchanges affecting their jobs. Italso imposes a requirement onemployees to inform their employerof ‘significant matters’ includingthe length of their parental leave,their intention to return to workand whether they intend to requesta return on a part-time basis.The ruling is signifi cantin that it takes an employee’sright to make such arequest and the recognitionof employees’ family carerresponsibilities beyond theequal opportunity regulatorysphere into the widerindustrial arena.The Commission decided to grantthe claim by employer groups toallow annual leave to be carriedforward for up to two years andincreased the number of singleannual leave days that may betaken from five days to ten days.The Commission also adopteda new measure under whichemployees are entitled to up to 48hours’ unpaid leave to care for afamily or household member in anunexpected emergency situationand the number of days of carer’sleave that may be taken as acomponent of personal leave wasdoubled from five days to ten days.Significance of the rulingThe procedure set out in thenew right-to-request provision issimilar in effect to the procedurean employer must follow underdiscrimination legislation on receiptof such a request. For instance,under section 9 of the EqualOpportunity Act 1995 (Vic), wherean employer refuses a request bya full-time employee to return towork from parental leave on apart-time basis and the requestis based on family carer reasons,the employer must show that itsrequirement that the employeework full-time is reasonable in allthe circumstances, which includethe cost and financial impact onthe employer of permitting theemployee to work part-time.However, while the technicaloperation of the new provision issimilar to indirect discriminationprovisions in discriminationlegislation, the ruling is significantin that it takes an employee’s rightto make such a request and therecognition of employees’ familycarer responsibilities beyond theequal opportunity regulatory sphereinto the wider industrial arena.It provides for a more formalisedstructure for employees to makesuch requests, allowing employeesand employers to approach thetask of balancing employees’work and family responsibilitiespro-actively rather than thereactive, complaint-based approachanticipated by anti-discriminationprovisions. There is also thepossibility that trade unions mayseek to utilise the new provision ata collective level across workplaces.The new provision also means thatemployees now have recourse tothe Federal Court for breach ofaward proceedings under section178 of the Workplace Relations Act1996 (Cth) where it is consideredthat an employer has unreasonablyThe ruling is alsosignifi cant on a broader socioeconomiclevel in terms ofthe balance it strikes betweeninterventionist versus freemarkettreatment of labour asa factor of production.refused an employee’s request. Onthe wording of the right-to-requestprovision, the employer bears theonus of showing why it is unable toaccede to an employee’s request.The ruling is also significant ona broader socio-economic levelin terms of the balance it strikesbetween interventionist versusfree-market treatment of labouras a factor of production. Thenew provision is expressly statedby the Full Bench as being basedon the approach contained in UKlegislation. Under section 80F ofthe Employment Rights Act 1996,a qualifying employee may applyto have their hours, times and/orplace of work changed where thepurpose of the change is to enablethe employee to care for a childunder the age of six or a disabledperson under the age of eighteen.Under section 80G, an employermay only refuse a request where itto do so is justified on grounds suchas cost, inability to meet customerdemand, inability to recruitadditional staff and detrimentalimpact on quality and performance.Whilst the Full Bench clearly statedthat it was not prepared to grantemployees unconditional rights toadditional parental leave, part-timework and other family friendlymeasures and that the introductionof such measures into workplacesshould be achieved by agreementin recognition of the capacity ofthe employer, it has nonethelessconsidered it appropriate to formallyrequire employers to considercontinued on page 2625

Recent Newssuch requests and to show causeas to why a request cannot begranted. In essence then, theCommission has endeavouredto strike a balance betweenthe needs of workers toadequately combine work andfamily care responsibilities andthe financial and operationalconstraints on employers.Industrial relevance of rulingThe Commission’s ruling willbecome a new minimum standard infederal awards. Following the ruling,unions will seek to vary individualfederal awards to include the FamilyProvision Test Case outcomes. Oncevaried, employees under the federalawards may make requests inaccordance with the new provision.It is likely that applications willthen be made to State IndustrialRelations Commissions to adoptthe new federal standard, as NewSouth Wales Industrial RelationsMinister, John Della Bosca hasalready indicated will occur.The ultimate impact of theruling on workers coveredby Certified Agreementsand Australian WorkplaceAgreements will depend onwhether the right-to-requestprovision will be included inthe Howard Government’sproposed new Fair Pay andConditions Standard benchmark.The new minimum standard isintended to replace awards asthe ‘no disadvantage’ test againstwhich Certified Agreementsand AWAs are assessed. Whilstthe ACTU has called for theGovernment to include the rightto-requestprovision in the newminimum standard, Prime MinisterJohn Howard and the Ministerfor Employment and WorkplaceRelations, Kevin Andrews, haverefused to give any guarantee that itwill be included in the Government’splanned workplace relations reforms.1 The Inquiry’s terms of reference were 1) the fi nancial, career and social disincentives to startingfamilies; 2) making it easier for parents who so wish to return to the paid workforce; and 3) the impactof taxation and other matters on families in the choices they make in balancing work and family life.recent seminarson work/family balanceREPORT BY VIRGINIA JAY1Gender and Working Time - National Models and PolicyDebates in the European Union Seminar by Dr ColetteFagan (Reader, University of Manchester)Virginia JayOn Tuesday, 10 May 2005,Virginia Jay and ChristineMelis, members of the WorkPractices Committee, attendeda seminar by Dr Colette Fagan,Reader in Sociology, Universityof Manchester, hosted bythe Centre for Applied SocialResearch, RMIT University.Dr Fagan’s research focuseson gender relations, work,employment and the organisationof domestic life, with particularinterests in ‘time’ and internationalcomparative analyses.Socio-demographic factorsinfluencing Dr Fagan’s researchinclude the restructuring of worktime practices (such as the erosionof standard daytime 9-5 hoursand the significant increase inpart-time work over the last fewdecades) and the concomitantrestructuring of gender roles inboth the labour force and the familyunit (meaning primarily, an erosionof the male breadwinner, femalecare-giver nuclear family model).Comparative internationalobservations of workinghour trendsAustralians, alongside our Greekand Japanese cousins, work thelongest hours in the westernworld (ahead of the UnitedStates even). Across all westerncountries, men work longer hoursthan women. On the evidenceA move from full-timeto part-time work for aprofessional will usuallyresult in a slow down in theirchances of career progressor have the affect of themtreading water in relation totheir career.26

Recent Newshowever, Australian womenwork longer hours than Swedish,French, Dutch and Austrian men.The situation of men working longerhours than women is due in part tooccupational gender stratification.That is, feminised workforces prevailin lower paid, part-time employmentsuch as cleaning, hairdressingand retail, and male dominatedworkforces are evident in industriestypified by higher pay and longhours such as IT and corporate law.Full-time work generally means verylong hours, whereas part-time workis typically for less than 15 hoursper week. This results in a polarisedworkforce where people workingfull-time would prefer to work fewerhours and people working parttimewould prefer to work more.Working part-time in professionaloccupations usually results inpenalties to the person. Parttimework is viewed as scarringa participant’s career for theremainder of their working life.Even with a change back to fulltimework, working part-time isoften viewed as equally damagingto a person’s career as beingunemployed. A move from full-timeto part-time work for a professionalwill usually result in a slow downin their chances of career progressor have the affect of them treadingwater in relation to their career.This may be contrasted withthe phenomenon of the ‘happyoverworker’. Happy overworkersare generally employed in highstatus, professional positions andwork long hours very intensely,apparently voluntarily. Howeverthe intensification of work is said tobe the product of a ‘manufactured’consent brought about by a desireto attain promotion where workinglong hours is seen as necessaryto demonstrate the requisitecommitment and dedication.High social costs attend upon happyoverworking in the form of negativehealth effects for the happyoverworker including high incidenceof heart disease, high bloodpressure, back ache, substanceabuse and mental illness such asanxiety disorders, and the impact onthe happy overworker’s family of alargely absent partner and/or parent.In Norway, a portionof paid parental leave isavailable only to men.The ‘daddy quota’ of leave isallotted on a ‘use-it-or-loseit’basis in order to compelfathers to participate in childcare.International legislativeinitiatives directed at work/family balanceIn the Netherlands, a tripartiteapproach involving government,employers and unions has resultedin the establishment of ‘fractional’jobs, comprising a fraction ofa full-time job with all otherconditions treated on a pro-ratedbasis. However, these jobs tend tobe for less than 20 hours a weekin circumstances where peoplewould prefer to be working 30 to35 hours. Nonetheless, the solutionof carving up even relatively highstatusjobs has tended to work wellin Nordic countries. Consequently,there are more examples in theNordic countries of managers andleaders working part-time thanin other countries. Sweden has astrong infrastructure supportingpart-time work. Child care is readilyavailable and cheap. There are alsopolicies for flexible parental leave.Legislation has been introduced inthe UK under which employees withchildren under six years and disableddependants under 18 years have aright to request changes to hours,times and location of work basedon their carer responsibilities. Anemployer must consider a requestto reduce hours and may onlyrefuse the request where there isa legitimate business reason forso refusing. The structure of theright to request and the employersobligation to consider the request issimilar to the new right-to-requestprovision set down by the AustralianIndustrial Relations Commission inthe recent Family Provisions TestCase (for more detail see the articleon the Family Provisions Test Casealso in this edition of Portia).The UK government is proposingto extend the right to requestin the legislation from parentsto parents with children up to18 years and for those caring foraged dependants. Such a stepwould indicate recognition of thesandwich effect of carer obligationsin respect of children and elderlyrelatives experienced simultaneously.A recent evaluation of the UKright-to-request flexible reducedhours provision shows that sincethe first year of implementationthere has been an increase in thenumber of requests made pursuantto the provision. A quarter of allthose eligible parents with childrenunder six years of age have madea request. Requests were higheramong women than among men.Ten percent of fathers had maderequests. Ten percent of fathershad taken up unpaid parental leaveopportunities. Fathers tendedto ask for a small adjustmentin their hours. Forty percent ofarrangements went beyond theminimum and were not restrictedto those with young children.Perceived negative aspects of theright to request provision andresulting arrangements included:• a demotion in job statuson implementation ofchanged work hours;continued on page 2827

Recent News• undertaking the same workbut on a reduced hours basis;• that such arrangements werenot being taken up in thehigher/management levels;• people were experiencingproblems negotiatingarrangements;• while these arrangementsappear to be accepted at seniorlevels, they were often left tothe lower levels to design andimplement in an organisation;• a lack of adequate monitoringof arrangements.Positives aspects of the right torequest provision and resultingarrangements included:• increased retention;• ability to recruit effectively;• productivity gains for overhalf of the participants(only three percent reporteda negative effect);• small firms identifyingflexible arrangements as abusiness advantage.In Norway, a portion of paidparental leave is available only tomen. The ‘daddy quota’ of leaveis allotted on a ‘use-it-or-lose-it’basis in order to compel fathersto participate in child care. Itsrationale therefore, is to encourageattitudinal change to the prevailingculture regarding the genderbalancing of parent’s child careresponsibilities and the accessingof leave for such purposes.Concluding discussionThe seminar concluded with anopen discussion of issues such asthe ways in which work practicesmay be altered including regulation,education and awareness.Workers’ carer obligations foraged parents and issues aroundactive ageing vis-à-vis continuingolder workers’ connection to theworkforce was also discussed.REPORT BY GEORGINA FROST2Quality Part-time Work Industry Round TableGeorgina FrostOn Wednesday, 11 May2005 Georgina Frost,also a member of the WorkPractices Committee, attendedthe Quality Part-time WorkIndustry Round Table hostedby the Honourable Rob Hulls,Victorian Attorney General andMinister for Industrial Relations.The Honourable Rob Hulls launchedthe Quality Part-Time WorkReport, the result of the QualityPart-Time Work Project undertakenby the Victorian Governmentin collaboration with employerorganisations and unions. LeonieMorgan, Senior Policy Analyst(Work and Family) IndustrialRelations Victoria, author of theQuality Part-Time Work Report,discussed the outcomes andconclusions contained in the report.Stage 1 of the report involved acomprehensive statistical overviewof part-time work in Australiaand Victoria. The overviewrecorded across Australia:• almost 29% of employedpeople worked part-time;• 46% of all employed womenworked part-time;• women make up 70% of allpart-time employed people;• employed women aged25-54 years with dependentsmake up just over 28% of allpart-time employment;• employed women aged 25-54years without dependentsconstitute 20% of all part-timeemployment across Australia;• men’s share of part-timework is increasing;• well over 85% of employedmen working part-timewere employed on a casualbasis as well as over 55% ofwomen working part-time;• the most common main reasonfor working part-time was goingto school, college or university22.4%, followed by caring forchildren 23.1% and a preferencefor part-time work 21.4%.Stage 2 of the report reviewsAustralian and internationalresearch in the field. The majorreasons cited for the significantgrowth in part-time work were:• employer demands for flexibility;• increasing female labourforce participation rates;• more workers choosingpart-time work to assist withwork and family balance;• need to retain skilled workers; and28

Recent News• concentration of part-timework in industry sectorsexperiencing major growth.The following characteristicsof part-time jobs impacton their quality:• most part-time jobs are casualemployment as opposed topermanent part-time;• there are limited working hoursand many part-time workersexpress a desire for more hours;• hourly wages may be lower;• traditional work culturedevalues part-time workers;• part-time work is segmentedaccording to gender;• many part-time workers havelimited access to training;• work intensification and a focuson results rather than hoursworked often impacts heavilyon part-time workers; and• difficulty of moving betweenfull-time and part-time work.The following were identifiedas objective indicators ofquality of part-time work:• access to part-time work atall occupational levels forboth men and women;• the same protection as full-timeemployment in relation tojob protection, predicabilityof hours and protectionagainst discrimination;• pro-rated wages andaccess to benefits;• equal access to trainingand promotion;• possibility of moving eitherway between full-time andpart-time work; and• inclusion in the workplaceculture and work group.Stage 3 of the report includedcase studies from variousindustries including nursing, localgovernment, hospitals, hospitality,retail and law. Melissa Carfax-Foster, Director of Operationsat the Epworth Hospital whichwas also part of the case study,discussed what quality part-timework looked like in practice fromthe Epworth’s point of view.Changing to the adoption of parttimework arrangement (not on acasual basis) had lead to retentionof trained staff. Employees hadreported an increase sense ofbelonging and staff satisfaction.The issue of pay was ninth on thelist of what on the floor workerssaw as their staff satisfiers. Pay waseven lower on the list for managers.Ms Carfax-Foster reported thatit is sometimes hard to designpart-time jobs and there is a needfor a team focus, to challenge thevalue of part-time. At Epworthboth their part-time and casualworkers have access to all normalentitlements and opportunities.Epworth have used the conceptof fractional appointments. Theexample cited was the creationof a senior manager’s positionwhich h was initially trialed as ajob-share for five months. Atthe end of the five months thearrangement was altered at therequest of the participants toone where one employee tookon the role of manager and theother acted as their shadow.The Quality Part-Time WorkReport concludes that qualitypart-time work is hard tofind and obtain due to:• organisational culture;• many part-time jobs are casualrather than permanent part-time;• a view that supervisor/managerscannot work part-time;• a view that part-timework is women’s work;• a lack of knowledge/skilland how to set up andmanage part-time work;• the application ofcertain awards; and• a focus on the head countrather than the EFT.The report can be viewed infull at www.irv.vic.gov.au29

Recent NewsAnne WinckelVWL Essay CompetitionThe VWL Justice Committeerecently held its secondannual essay competitionfor Law Students.The essay competition was open tostudents enrolled in undergraduateLaw Degree courses in Victoria.Entrants were asked to write a 1500word essay on a set topic related toBY ANNE WINCKELPrincipal, Legal & Executive Division, Jones & Koller Recruitment and ConsultingMember of the Justice Committee and Executive Committeewomen, human rights and the law.This year’s winner is Emily Chewfrom the University of MelbourneLaw School. Emily received amonetary prize and her is essay isreproduced in this edition of Portia.Emily’s essay was written inresponse to the following question:DISCUSS the followingquote in 1500 words:“So why, to use Justice Kirby’swords, do women have so fewspeaking parts in the HighCourt? The inescapableconclusion is that it is theproduct of the discriminatory,systemic and structural practicesin the legal profession that havebeen well-documented in recentyears and which prevent femaleadvocates from getting the sameopportunities as male advocates.”The quote is taken from a speechgiven by Justice McHugh on 27October 2004, which can befound on the High Court’s websiteat the following address: http://www.highcourt.gov.au/speeches/mchughj/mchughj_27oct04.htmlThe Justice Committee hasbeen pleased to facilitate thisactivity for Law students, and wecongratulate Emily on her essay.VWL Essay CompetitionWINNING ESSAY – BY EMILY CHEWFINAL YEAR BA/LLB STUDENT AT THE UNIVERSITY OF MELBOURNEA Personal Dilemma withPolitical RootsRecently I’ve been ponderingmy ‘career’. It’s alwaysbeen ‘out there’ and existingsomewhere in the future,casting its shadowy influenceover my university career.Now it’s about to start, andI find myself slowly comingalive to a nasty realisation.As a driven woman in an eliteprofession, believing I can ‘have itall’ places me in the double bind ofwhich Beth Gaze speaks — beingtold to expect, and expecting,equality in career and opportunities,When Justices Kirby andMcHugh’s express anxietyabout the lack of womenin ‘speaking parts’ in theHigh Court, the inevitableconclusion is that, becauseof gender, women are beingsubject to distinctions,exclusions and preferencesthat are unfavourable to theircareer advancement.but facing unequal conditionsand discrimination in reality. 1International law provides us withconcepts and definitions that assistthis discussion. The InternationalLabour Organization’s Convention111: Discrimination (Employment andOccupation) defines discriminationas ‘any distinction, exclusion orpreference made on the basisof [an attribute or such otherdistinction] which has the effectof nullifying or impairing equalityof opportunity or treatment inemployment or occupation…’ 2When Justices Kirby and McHugh’sexpress anxiety about the lackof women in ‘speaking parts’ inthe High Court, the inevitableconclusion is that, because ofgender, women are being subjectto distinctions, exclusions and30

Recent Newspreferences that are unfavourableto their career advancement.How is the legal professionsystematically discriminatory?Many commentators have describedthe culture of work in the legalprofession, and noted that thisculture is discriminatory. 3 As aservice-based industry, lawyersare required to be responsive toclient and firm demands by doingwhatever it takes to satisfy them.This usually means working longhours and some weekends, andbeing seen to work these kindsof hours. Pulling your weight ismeasured by the number of billablehours clocked, and then the valueof those hours according to theprofile of the matters involved. 4Ambitious lawyers who activelyengage in self-promotion, whoare less likely to be women,are rewarded and will excel. 5Importantly, being ‘serious’ abouthwyour career does not traditionallyaccommodate taking time off inthe form of unpaid leave. Thesewwconditions set the backdrop ipagainstwhich women’s choices are made.Discrimination against women the hwcrimination ist nen inlegal professionis put in starkrelief ef by low ratesof participation ation ofwomen at the bar. In 1998, the yearthe Victorian Bar Council releasedits landmark report, Equality ofOpportunity for Women at theVictorian Bar, women accountedfor 15.8% of the Bar. Since then, ithas progressed only by ‘baby steps’(excuse the pun) to 17.3% in 2001and 18.6% in 2003. 6 The bar hasbeen criticised for lack of flexibility,difficulty in accommodating parttimepatterns of work, perpetuatinga conservative environment with alow tolerance for change, and forits ‘blokey’ culture and overt sexismthat is inimical towards women’sparticipation. 7 At May 2004, 20%of Federal judges and magistrateswere women with most operatingin the Family Court, 8 and in late2001, the average for State SupremeCourt participation was 6%. 9 Suchlow rates of female representationare despite the 50/50 gender splitin graduating classes from lawschools for the past few decades. 10These statistics also invalidate adiscourse that ‘choices’ are eitherreal or accessible to women lawyers.Without much of asecond thought, womenin my position usuallysubconsciously subscribe tothis clumsy cobbling togetherof identities, in which the‘ideal worker’ struggles toreconcile with the ‘domesticcaregiver’, these two beingconstituted as polaropposites.Crucially, the fact that a womanparticipates in the paid labour forcedoes not seem to significantlyreduce her load of unpaidlabour; 13 and 59% of womenwho are primary carers alsowork. 14 Not only does this seemunfair, it sounds exhausting.Why do discriminatory systemspersist?Critique of the legal profession’ssystemic discrimination has beenresearched and described in detailby others. However it remainsunsatisfactory as it focuses on microlevelsymptoms that are connected,in an umbilical cord-like manner,to broader cultural structures. 15ILO Convention 156: Workers withFamily Responsibilities, obligesstates to ensure that the positionof those with family responsibilitiesis equalised with those without, 16As described, this legal culture isand was ratified by Australia on 30discriminatory in effect when theMarch 1990. As well as this, thequestion of how to balance workSex Discrimination Act 1984 (Cth)and family arises. ‘Having it all’ ishas operated to raise awareness ofstill such a limited concept definedsex discrimination for twenty years.by an ‘M-shaped’ career path —However legal prohibitions, whetherthat is, first establishing ihingcareer, thenthey are based on a negative ortaking ‘time out’ to have kids andapproach to human rights,raise and finally go so far in fosteringthe for last-gasp atbroad-based cultural change.career retirement.ngpositive gsitivea family,re-enteringcan only workforcea asp dash fulfilmentbeforenaiseind 11Legislation and internationalWithout much of a secondinstruments have failed to create athought, women in my positiongroundswell of change. By taking ausually subconsciously subscribe formal equality approach to genderto this clumsy cobbling ebling eng togethershersdiscridiscrimination,ayt ination, most legislationof identities, in which the‘idealhas focussed onprima facieworker’ struggles s to reconcile cile with access s to opportunities and notthe ‘domestic caregiver’, these twoonunderlying liandsystemic causesbeing constituted as polar opposites. of inequality. 17 Anti-discriminationapproaches can no longer bePru Goward, Sex Discriminationconsidered sufficient to the taskCommissioner with the Humanof achieving gender equality inRights and Equal Opportunityemployment opportunity. 18Commission, notes that womencontinue to be responsible for A legalistic approach to change,70% of all unpaid householdwhile symbolically importantwork in Australia, including caring and crucial for creating legalfor children and the elderly. 12consequences to abuses of humanrights, is inherently limited incontinued on page 3231

to newer lawyers and thoseabout to enter the professionwas to find their own feet.In its third year now, the breakfastwas a fantastic success. Theorganisers greatly appreciate thesupport of Maurice BlackburnCashman Lawyers. Thank youmust also go to the organisers:Natasha Stojanovich, LyndaAcfiled and Taboka Finn, NicoleThompson and Catherine DowThe raffle raised $886 forSisters Inside and will be usedto fund a scholarship for aprisoner in Queensland todo some tertiary study.Please contact me at kee@deakin.edu.au if you have any feedback onthe breakfast or have suggestionsfor future speakers. For moreinformation visit www.sistersinside.com.au and www.robinbowles.com.au. Each of the speakers haskindly allowed Portia to reproducetheir speeches. For those that wereunable to attend the breakfast, I amsure you will enjoy reading them.SPEECH BY DEB KILROY – DIRECTOR, SISTERS INSIDEDeb Kilroysuppose it would be easyI for me to stand up here at aWomen and the Law functionand talk about how the lawhas failed many women.Having been on the other side ofthe law myself, I know preciselyhow limited the law has been inensuring the liberty and life of somany women I know – womenwho trusted the law, whom thelaw should have protected.The law failed me too. But I’mone of the ones that have comethrough. Plenty haven’t. I camethrough because a complexseries of events and personalitiesintervened, and because I foughtto, but I’ll get to that later.These days I’m on this side of thelaw, the safe side – well so they say –the respectable side, I suppose, andstudying to be a lawyer myself, I liketo think my previous experiences willinform the kind of lawyer I will be.These are the things I want to sharewith you today, with the hope thatmaybe a few of you will go awaywith your own attitudes informedand influenced in a way that mightchange the way you are lawyers too.I grew up with a very jaundiced viewof the law and with no respect for it.From a very early age, the example Iwas given of authority and the wayit works left little room for respect.I remember being in Grade 2 andthere was this fantastic big, oldtree in the schoolyard. All theboys were climbing the tree, andso did I. I was pulled out of thattree by the nuns and given six ofthe best. Why? Boys are onlyallowed to climb trees, not girls.Having been on the otherside of the law myself, I knowprecisely how limited thelaw has been in ensuring theliberty and life of so manywomen I know – women whotrusted the law, whom the lawshould have protected.I go on to remember anotherintroduction to violence. Iwould wag school in Grade 8and take off with my friends onthe weekend. My parents werereferred to the Juvenile Aid Bureauand social workers and weretold I should be put in the youthprison for four weeks to undertakean assessment. To this day, mymother says no assessment wasever given. I remember goingthere in my school uniform, andthis was when drugs, violenceand isolation were introducedto me by people in authority.After that kind of experience, howwas I ever going to perceive thelaw and authority as fair andjust? It meant one thing forsome and another for others.The friends I made inside [Sir Lesley]Wilson [Youth Detention Centre]only reinforced that some hadbeen imprisoned because theywere at risk – that is, at risk fromothers, not themselves. Imprisonedlocked up, drugged and preventedfrom living out their childhoods.And, I would say, forced intoabnormality – that is, an abnormallife and an abnormal way of seeingthe world. A stint inside Wilsonguaranteed you would never seea policeman, a lawyer, a judge, ateacher, a psychiatrist, a nurse– anyone representing authority– the same way as everyone else.After that, I had plenty of brusheswith the law, but it was myarrest on drug charges that gaveme an insight into how corruptlaw and order really can be.Then, of course, there was prisonand its aftermath. My friend wasmurdered as she sat beside me.continued on page 3635

We were attacked from behind.Storm, who murdered Debbie,blacked out and couldn’t stopstabbing her; she was in a frenzy.“Sisters Inside” was set up largelyas a response to all that. Do youhave any idea how powerless youare when you are sent to prison?Prison is fundamentally about powerand the lack of it. It’s about thosewho have it controlling those whodon’t, and you have to rememberthat the majority of women inprison have been powerless alltheir lives – growing up in povertyand disadvantage, with the kindof violence and abuse you mightread about in the papers. Theymiss out on all the things that giveother people their power: education,socialisation, and a loving family.As women, as lawyers with agood education and the supportof family and friends, you have alot of power. Fundamentally, youhave the power to make choices.Women in prison have no power atall. The most obvious sign of thatis their inability to move freely inthe world, but it goes far beyondthat. They don’t have any powerover when they see their children,whether they get an education,and even the books they read.My biography was recentlyreleased. I took a copy to one ofthe women in prison who is alsoanother founding member of SistersAs women, as lawyers witha good education and thesupport of family and friends,you have a lot of power.Fundamentally, you have thepower to make choices.Women in prison have nopower at all.Inside, and after I left the prisonthe book was confiscated. Thebook has also been sent to othersin prison and it has been labelled‘undesirable reading material’.When you are locked up behindthose walls you have your veryvolition taken away from you– that is, power over your ownbody. What’s happened recently toCornelia Rau should give you someidea of how powerless a womancan be. Every woman is, but add tothe mix a mental illness, a physicaldisability, a language issue, a historyof abuse and/or drug use, and whatif you’re Aboriginal or Islander?– you’ve got a lot of people whohave little of their own volition left.Unless you have a very high levelof education and a very forcefulpersonality, how do you knowwhat your rights are? How doyou know how to advocate foryourself? To protect yourself? Toask the right questions? To knowwhen you’re being lied to by prisonofficers or authorities who don’tparticularly care if you get yourmedication, see your kids, havea lump in your breast, if you’regoing crazy, need to see a dentist,see a lawyer, get an appeal up?And then there’s the old issue ofmoney. As lawyers, you would allhave to know that most womencannot afford legal representation,and that Legal Aid is denied toall except the lucky few. Butwhat you may not know is howincredibly hard it can be to accesslegal services at all, how fewlawyers will do pro bono workand give even a bit of their timeto helping out a woman who hasno other recourse to justice.The truth is that women insidehave no power, few possessionsand no voice, and the tragedy of itis that many don’t know a life anydifferent. When you have grownup with poverty and abuse, youhave no concept of human rights,of power, of having a voice thatmight be heard. Until recently,Sisters Inside provided a voicefor women in prison and scrutinyof the way prisons were run.Sisters Inside is unique in theworld. It was set up to ensurewomen in prison had control of theorganization, along with trustedwomen outside. It was vital fromthe outset that women insideknew they were in charge – thatthe organisation was theirs. Setup at a time of unique reform inQueensland, we used to be in theprison twelve hours a day andeat with the women. In one ofthe prisons, we were allowed tosleep overnight because of thelong drive back to Brisbane.[L-R]: Nicole Thomson, Katie Elder, Debbie Kilroy, The Honourable JusticeJennifer Coate, Lynda Acfield and Natasha Stojanovich.That’s unheard of now, of course, aswe have continued to emulate theAmerican system of imprisonmentfor a wider variety of offences, longremand times, longer sentencesand the criminalisation of raceand poverty and homelessness.36

Sisters Inside provides manyservices to women in prison:sexual assault counselling, drugand alcohol counselling, parentingprograms, and support, youthworkers, Aboriginal supportworkers, post-release support,Supreme Court bail, and educationand training programs.However, those services havebeen curtailed and in somecases, banned altogether,because since last June SistersInside have been effectivelylocked out of women’sprisons by the QueenslandGovernment’s CorrectiveServices Department.The Government’s actions followour submission to the QueenslandAnti-Discrimination Commissionerabout what we regard as thesystematic discrimination againstwomen in prison, and about specificabuse directed at women inside.This complaint – which has nowbeen lodged here in Victoria as well– is based on our belief that thehuman rights of women in prisonhave been diminished and that theyexperience discrimination on thebasis of sex, as well as on the basisof race, and on the basis of disability.We also contend that strip-searchingand the use of the Crisis SupportUnit – where women with mentaldisabilities are isolated from otherwomen – are experienced in adiscriminatory way by women.In Queensland, the key meansof that discrimination are:• The classification system• The inadequate numberof low security beds• Women’s access (or lack thereof)to conditional and communityrelease, to programs andeducation and to work, and• Strip-searchingI’ll go briefly through some ofthese, as there is no time thismorning to discuss all these areas.I will talk about the classificationsystem and strip-searching.ClassificationFirstly, Sisters Inside disputeswhether women should be assigneda security classification at all.Second, we question the validityof the measurement of risk. InQueensland, the classificationsystem, through the Offender’sRisk Needs Inventory, convertsdisadvantage – or needs – to risk.Women are penalised for their socialdisadvantage (as if they haven’tbeen already), attracting a highersecurity classification if they have ahigh level of social disadvantage.In this white, middle-class,male-based approach, this isan example of how it works:An Aboriginal woman livingin Woodridge (or a low socioeconomicsuburb of Melbourne) andwho may have a mental disabilityand be in a violent relationshipwill be identified as having needsin these areas. The Offender’sRisk Needs Inventory requiresprison staff to ‘tick off’ theseneed areas and the needs are thentranslated into the risk she poses.Strip-searchingStrip-searching is mandatory inQueensland after any contact visit.That might sound straightforward,but let’s unpack it a bit:Let’s take one of the great majorityof women in prison who haspreviously been sexually assaultedor abused, and who has a couple ofsmall children on the outside. Thisis a normal female prisoner – 89%have been sexually abused and 85%are mothers. Each time she wantsto touch them to cuddle them orstroke their hair and touch theirfaces, she knows that the paybackis taking off her clothes in front of abunch of prison officers, holding upher breasts for inspection, squattingand coughing, in case she hassecreted something in her genitals.I’d like you just to pause and thinkabout that for a moment, to thinkabout the humiliation, the exposure,the vulnerability of any woman,perhaps yourself, or your sister, yourmother, your daughter, your friend– already stripped of her dignity, herlife, and now stripped of her clothes.Then add to that the trauma awoman might feel as each stripsearch reactivates the trauma andviolence of previous sexual assaults.Within days of lodgingthe complaint [with theQueensland Anti-DiscriminationCommissioner], we were toldour staff could no longer enterthe prison and that I personallywas not permitted to enter.Sisters Inside is unique inthe world. It was set up toensure women in prison hadcontrol of the organization,along with trusted womenoutside.This lock out, which penaliseswomen in prison and their children,is clearly retribution. It says plainlythat if you stand up for injustice,for discrimination, for fairness,you will be punished severely bythe Queensland Government.And we’re not talking about aconservative government here.We’re talking about so-calledprogressive Labor governmentthat purports to care aboutsocial justice and equality.This punishment, however, alsofeeds into the broader agenda– to the sorts of things that arehappening to Aboriginal people inour state and in our country, andcontinued on page 3837

also to those Australian citizenswho find themselves undersuspicion as illegal immigrants.Aboriginal people representthe smallest proportion of thepopulation, but are also the largestand fastest growing percentageof the prison population. Theyare also among those prisonerswho feel most keenly thediscrimination and abusiveatmosphere inside our prisons.All women in prison – butAboriginal women in particular– don’t know much about humanrights. Their backgrounds (mostare disadvantaged, with abusivefamilies and partners and littleeducation) don’t convince them thatsuch things as humans rights exist.The challenge I’d like tothrow down to all of you heretoday is that you, too, shouldnot be silenced. As lawyersand as women, you need to bevigilant and look out for otherwomen who have not hadthe opportunities you havehad. Because if you submitto the fear and intimidationcampaigns, the more troubleall women will be in.out. They might assume thatwithout scrutiny they can continueto operate their prisons in a waythat humiliates and furthers theabuse that most women havelived with most of their lives – andthat their actions will be secret.Because of these intimidationtactics now being employed by theQueensland Government againstme personally after the publicationof my biography, I may yet findmyself back on the other side ofthe law. There are some peopletrying very hard to find somethingin this book they can use to pinsome kind of offence on me. Letthem try, I say, because at the endof the day, inside prison or out,whether they allow me to becomea lawyer or not, I will continue tospeak out. I absolutely refuse tocave in to this kind of bullying, butit will take more than me. It willtake women just like you, womenwho have heard the story now andknow what you now know, to fightit. That’s my challenge – fight it.The Government may think theyhave silenced us by locking usBut secrecy breeds abuse, andwe will not be silenced.International Parental AbductionSPEECH BY ROBIN BOWLESRobin BowlesAlternate words for abductionoffered in my Thesaurusare ripping, tearing, wrenchingwords like: snatching away,taking, seizing, running awaywith, stealing, robbing, andkidnapping, to mention a few.Abduction implies a violent act,possibly premeditated. I preferkidnapping myself. Althoughparental abduction is not acriminal offence in Australia, ithas been legislated that way inother western societies, notablythe USA and the UK (althoughprosecution is rare in the UK). Thecrime, if I may call it that for thisshort talk, has both legal and socialramifications, far too extensive tofully enumerate even briefly today.Although left-behind parentsand other family members areoften completely stunned by thesudden and seemingly irrevocabledisappearance of the kidnappedchild and kidnapping spouse (inover 70% of cases, the wife), some,when faced with empty wardrobesand toy baskets, experience theenveloping wash of hot and coldrealization that they had notrecognized and acted upon thenow obvious signs. Or they beatthemselves up day after day forhaving agreed to that holiday tomeet the grandparents, living inthe spouse’s old country. Theybegin to suspect their children maynever enjoy the rights of growingup surrounded by their family andfriends in their own country of birthand habitual place of residence.They begin to suspect that theymay never see their children again.In my experience of interviewingthose parents who have abducted,those parents left behind, childrenwho have survived one or even twoabductions and private investigatorswho earn big money by stealingchildren back, most internationalparental abductions are carefullyplanned over quite a long period.Sometimes for months. Plans toget the children away from homewith a long enough lead time toAbduction implies a violentact, possibly premeditated.I prefer kidnapping myself.Although parental abductionis not a criminal offencein Australia, it has beenlegislated that way in otherwestern societies.38

oard an international flight andexit Australian air-space, obtainingthe other parent’s signature forpassport applications withoutarousing suspicion (or forgingthe necessary signatures andwaiting in trepidation in casethis is discovered before flight),thinking up plausible excuses forbuying big new suitcases or sortingclothes and possessions during thepreparation period (garage sales area believable option) and applyingfor visas if the children do not havedual nationality—all require timeand subterfuge. Lies, actually.In a report by Hoff & Girdner,quoted in a recent paper (Livingin Limbo, February 2005) byInternational Social Services,this crime is defined as:“the taking, retention orconcealment of a child or childrenby a parent, other family memberor their agent, in derogation ofthe custody rights … of anotherparent or family member.”It is contemptuous of thechild’s rights to enjoy hishome, his school, friends,cultural and social traditions,pets, toys, grandparents andof course, his other parent.This definition pinpoints both thelegal and social aspects of childabduction. It is contemptuous of thechild’s rights to enjoy his home, hisschool, friends, cultural and socialtraditions, pets, toys, grandparentsand of course, his other parent.When I was interviewing formy book, (Taken in Contempt,Macmillan 2000) so many parentstold me they had kidnapped (orstolen their children back) ‘in theirbest interests’. I heard this so oftenthe working title of the book was‘In their best interests.’ The more Ilearnt the more I realized this wasabsolute rot. They do it for complexreasons, but rarely, in my view, tobenefit their children. It is now wellrecognized that parentally abductedchildren experience intense andlasting psychological damage,from post-traumatic stress to:• Insecurity, depression and stress;nervousness and confusion;• Isolation, powerlessness,hopelessness, intense loneliness;• Separation from siblings andextended family and friendsand parental alienation• Missing the left behind parentwhile away, including caseswhere the child has been toldthat parent has died, the childhas grieved alone and thendiscovered they have beenlied to. The child becomesdangerously detached on return;• Suffering loss from losing theabducting parent with whoman attachment has grownas part of a survival need;• Educational disruption;• Loss of connection to allthat was previously familiar,including in some cases, alanguage spoken at home;• Learning to keep secrets andto become manipulative;• Witnessing violenceagainst a parent;• Assuming too much responsibilityfor the abduction; and• Practicing self-harm.*My happy little duck-feeding,romping with the woo-woos,splashing in the big pool two-yearoldgrandson is now a destructive,troubled 8-year-old, receivingpsychological counseling and copingwith his mother’s live-in NorthAfrican lover and a baby half-sisterfrom a different cultural heritage.* Reunite, UK researchThink of a few other ‘trivial’examples of how kidnapping affectsthe kids. A child who has grownup with a beloved dog, playmateand cuddle-mate, is taken to aMuslim country where dogs areshunned. He is told that theleft-behind parent has given hisdog away, or starved it to death.He sobs alone for all he has lostinto his pillow each night.My happy little duckfeeding,romping with thewoo-woos, splashing inthe big pool two-year-oldgrandson is now a destructive,troubled 8-year-old, receivingpsychological counseling.A child who has been read toby his grandmother, Winnie thePooh, Peter Rabbit, Snugglepotand Cuddlepie, Thomas the TankEngine, is now listening to GrimmsFairy Tales, Aesop’s Fables or AliBaba in a language he doesn’tunderstand and is greeted withderision when he mentions hisfavourite characters. Graduallythey fade away, along with hisrecollection of his grandmother.Another child is told never to standnear an un-curtained window, istaught a new name and identity,schooled to pretend he is an onlychild (if other siblings are also leftbehind), to never mention his father(who is a wicked person, who hasburned down the family home anddid not want to come with him andthe abducting parent) and whonever contacts him because hedoesn’t love or want him any more.Try to imagine his lasting anger andbewilderment with the left-behindparent for not rescuing him.Child kidnapping, in my view, isNEVER in the child’s best interests.My son ignored advice from theCentral Authority in Australia andcontinued on page 4039

followed his wife and child toFrance in an attempt to persuadehis wife to return. He was thecare-sharer in Australia, an armytrained medic with a degree inHealth Sciences, and he knewwhere his son’s passport was keptin his wife’s parents’ house. Hecould have easily stolen his babyback in the early days followingthe abduction, before the acrimonydeveloped through the Frenchcourt’s failure to implement theirresponsibilities under the HagueConvention on the Civil Aspects ofChild Abduction. Initially, he choseto do the right thing and trust inthe Hague Convention and waitfor his son to be returned legally.Last September, after six years ofworking two or three jobs in Franceto fund legal advice for his appeals,his final appeal was refused.Still on the social aspects, childabduction is a vastly differentexperience to a parent applying fora Relocation Order, or even for bothparents to simply agree to moveoverseas with the child to allowhim to share with his parents theexperience of one parent’s cultureand traditions. I can’t tell you howmany times my friends consoledme with sayings like, ‘Well, at leasthe’s with his mother,’ or ‘He’s onlylittle, he’ll get used to his newcountry.’ Because my eldest andclosest son followed his wife andchild to France, I don’t see himeither. We were reunited for the firsttime in nearly 6 years last Christmas,but my grandson cannot visit. Hismother has obtained an order fromthe French court forbidding him toleave until he is 16, even thoughin the Australian Family Court myson has a pending application forcustody in Australia. During myinterviews for my book, one parenttold me that stealing someone’schild is ‘like ripping their heart out’.In France and many other Europeancountries, custody and access issuesare often confused with locationissues, which is what the HagueConvention on the Civil Aspectsof Child Abduction is all about.Operation of the InternationalChild Abduction ConventionThe Hague Conference on PrivateInternational Law was convenedin 1893 and became a permanentinstitution in 1951. With theobjective of unifying rules ofprivate international law, TheHague Conference has produceda series of multilateral treatiesthat are designed to addressinternational legal problems.There is considerablediscussion around this issue oflocation versus custody/access,as some requirements of theConvention appear to negatethe principle embedded inAustralian Family law thatthe paramount considerationis the best interests of thechild.The Convention on child abductionapplies between those countriesthat have ratified it, and countriesthat have acceded to it and whoseaccession has been acceptedby other ratifying or accedingcountries. These countries arecalled Contracting States.The Convention requires allContracting States to establishadministrative bodies known asCentral Authorities. The Conventionrightly aims to expedite applicationsfrom any Central Authority toensure minimal disruption to thechildren. Once the orders areobtained for the child’s return totheir habitual place of residence, therelevant authority in that country—in Australia, the Family Court—candeal with the other rights of thechild and the responsibilities ofboth parents. There is considerablediscussion around this issue oflocation versus custody/access,as some requirements of theConvention appear to negate theprinciple embedded in AustralianFamily law that the paramountconsideration is the best interestsof the child. Consenting Stateshave agreed that the best interestsof the abducted child, in mostcases, will be served by returningthe child to the jurisdiction thatdoes have his interests at heart.A parent whose child has beenwrongfully removed can apply tothe Central Authority of the child’shabitual residence or to the CentralAuthority of any other ContractingState, for assistance in securingthe return of the child. Or they canengage a lawyer to apply on theirbehalf. Unfortunately, many lawyersdon’t know much about the HagueConvention and many parents,unless they’ve read an article in NewIdea, or my book, don’t know muchabout their options either. I wouldconsider myself quite well read andyet at the time my grandson wasabducted, we thought we werethe first family since JacquelineGillespie to be affected by thisdrama. The known figures areactually about three times a weekin Australia to Contracting Statesand who-knows-how-manyto non-Hague signatories.If a Central Authority receivesan application for return ofa kidnapped child, it mustbe under Article 7:• take all appropriatemeasures to discover thewhereabouts of the child;• prevent harm to the child or,prejudice to the applicant parent;• secure the voluntary returnof the child or otherwise;• bring about an amicableresolution of the matter.40

CommonwealthInternational Family Law UnitAttorney-General’s DepartmentCanberraTelephone: 1800 100 480Facsimile: (02) 6250 5917E-mail: childabduction@ag.gov.auMs Nan LevettTelephone: (02) 6250 6724New South WalesMs Doreen MuirheadDepartment of CommunityServices AshfieldTelephone: (02) 9716 2490Facsimile: (02) 9716 2988QueenslandMs Helen ToothDepartment of FamiliesBrisbaneTelephone: (07) 3235 9862Facsimile: (07) 3404 3570VictoriaMs Ruth AndrewDepartment of Human ServicesMelbourneTelephone: (03) 9616 7777Facsimile: (03) 9616 7012Northern TerritoryMs Cheryl WatsonDepartment of Health andCommunity ServicesDarwinTelephone: (08) 8999 4789South AustraliaDet Superintendent Peter WoiteMajor Crime Investigation BranchAdelaidesome useful contactsTelephone: (08) 8463 7870Facsimile: (08) 8231 3905Ms Lydia MakivSA Crown Solicitor’s OfficeAdelaideTelephone: (08) 8207 1632Facsimile: (08) 8207 1794TasmaniaMr Simon AllstonOffi ce of Solicitor-GeneralHobartTelephone: (03) 6233 3408Facsimile: (03) 6233 2510Western AustraliaMissing Persons BureauPerthTelephone: (08) 9492 5471Facsimile: (08) 9492 5470Ms Ilse PetersenWA Crown Solicitor’s OfficeTelephone: (08) 9264 1888Facsimile: (08) 9264 1440Australian Capital TerritoryMr Greg StaggDepartment of Education andCommunity ServicesCanberraTelephone: (02) 6207 1502Facsimile: (02) 6207 1501Websiteswww.law.gov.au/childabductionwww.iss.org.auwww.missingchildren.comwww.reunite.orghttp://travel.state.gov/family/abduction.htmlCountries which are parties to the Convention*The Convention only applies between countries that are parties to the ConventionThe Convention is in force between Australia and the following countries:Argentina France Panama Austria Georgia Paraguay Bahamas Germany PeruBelarus Greece Poland Belgium Honduras Portugal Belize Hong Kong RomaniaBermuda Hungary Saint Kitts and Nevis Bosnia and Herzegovina Iceland SlovakRepublic Brazil Ireland Slovenia Burkina Faso Israel South AfricaCanada Italy Spain Chile Latvia Sri Lanka Colombia Luxembourg SwedenCosta Rica Macau Switzerland Croatia Macedonia, The FormerYugoslav Republic of Trinidad and TobagoCyprus Malta Turkey Czech Republic Mauritius TurkmenistanDenmark Mexico United Kingdom of Great Britain and Northern IrelandEcuador Moldova United States of America El Salvador Monaco UruguayEstonia Montserrat Uzbekistan Fiji Netherlands VenezuelaFinland New Zealand Yugoslavia, Federal Republic of (Serbia and Montenegro)Norway Zimbabwe*Transcribed from Living in Limbo a report written by International Social Service, Australian Branch February 2005When it becomes necessary, theCentral Authority can initiate judicialor administrative proceedings tosecure the child’s return, becausewhen a country ‘ratifies’ aconvention, that country is legallyobliged to honour the Convention.But as a left-behind parent, youreally want to hope that the judgesin those countries know somethingabout the spirit and purpose ofthe Convention, because manyContracting States hear the matteras a custody and access application,or even hear applications in lowercourts, as we hear traffic violationsin Australia. Or if children have dualnationality the judges weight thenationality of the country wherethe hearing is being conducted,rather than the habitual place ofresidence. (How would any childfrom our country benefit frombeing brought up in Australia?)One of the purposes of theConvention was to prevent a parentgetting a more sympathetic hearingin his or her country of origin.But mothers who claim domesticviolence and who throw themselveson the mercy of the court in theirformer home country are oftensuccessful, whether or not domesticviolence has ever occurred. UnlikeAustralia, they are not requiredto produce any evidence of thisin countries such as France. It’sone person’s word against theother. Petitioning parents (or theirsupporters) are not even permittedto give evidence on their ownbehalf from the witness box. Inmost cases, this is not obstructivejustice. It is the impositions of thejurisdiction, or just ignorance.International parental childabduction has a devastating knockoneffect on parents and children,their families and the community.Sometimes scores of people couldbe affected by one abduction.continued on page 4241

This impact is hardly acknowledged.No recognition or support of thisincreasing phenomenon existsin any meaningful or effectiveway. Therefore we are limitedas a community in ways to learnfrom and evaluate the impactof this crime on ourselves andour ability to provide servicesin the specialist areas of advice,support and counseling, familylaw, clinical psychology, griefand loss counseling, domesticviolence and child protection.As the lawyers of the futuremost of you will work in at leastone of these areas at some timein your careers. Don’t forgetto familiarize yourselves withthe Hague Convention!SPEECH BY ELAINE CANTYElain CantyGood morning everyone.When I was first admittedto the Bar in Victoria over30 years ago, there werevery few professionalwomen’s associations.Those that did exist, like the WomenLawyers Association at the timewere more like professional refuges,a defensive, circle the wagonsenvironment where we exchangedwar stories and ploys to overcomewhat were then significantbarriers to the advancementof women in the profession.I distinctly recall an interview I hadwhen I was looking for articles. Itwas with a partner in his forties ina mid size city firm. He thoughtmy results were satisfactory andhe was prepared to offer me aposition. “ But ,” he said “youwouldn’t be allowed to have anydirect contact with the clients.They’d lose confidence in the firmif they had to deal with a woman”.Fortunately I found articleselsewhere ….and that manwill never know how his wordscreated a pilot light inside mewhich has ever since been readyto ignite when confronted witheither injustice or opportunity.Women’s professional associationsthese days and I have haddealings with dozens of themare remarkably stimulating andinspiring organisations. They are stillnurturing, but they are more likehothouses for ideas and contactsand professional development.My legal career was interrupted bythree children under four. Whilethey were little I worked part-timeas a tutor in clinical legal practiceat Monash University… supervisingthe final year law students at thefree legal services at Springvale,Doveton and Monash , and thenpart-time doing legal costingat home for a year or two.You wouldn’t be allowedto have any direct contactwith the clients. They’d loseconfi dence in the fi rm if theyhad to deal with a woman.Apart from attendingkindergarten coffee morningsand playing midweek tennis, Idid a journalism course.Even though I have not been apractising lawyer for 20 years, I havealways found that legal backgroundto be an enormous advantage.It has given me credibilityand respect in journalismand broadcasting. The skills alawyer develops, for exampleextracting the maximum amountof relevant information from aninterview subject in the minimumpossible time…are invaluablewhen you are in the media.When the AFL decided that oneof the new appointments to theTribunal would be a woman, I wasin the right place at the right time.Not only was I legally qualified, butI had had 5 years in ABC Radioand TV sport, experience in SportsAdministration as a director of theVictorian Institute of Sport, and IanCollins, then the Football OperationsManager at the AFL was a regularguest on my daily radio program.When they approached me and Iagreed to do it, I had no idea ofthe uproar it would cause. It wasafter all a judicial job….considerthe evidence, make a finding anddecide on appropriate penalty.Obviously some appreciation andknowledge of football culture andthe rules involved was required,but it certainly wasn’t necessaryto have intimate knowledge ofwhat was going on out there inamongst the knees and the groinsand the mouth guards. …anymore than a magistrate needs tohave tried her hand at shopliftingin order to do her job properly.I completed nine years onthe Tribunal, before we allgot the sack at the beginningof this season when the newsystem was put in place.When I was first appointed I did42

have concerns about the system.The Chairman acted as bothprosecutor and judge.There was no appeal process.It was established policy thatshould a case against a player besustained, he would be suspended…The Tribunal did not hand outreprimands or suspended sentences.So for high profile cases, especiallyaround finals time, it was notuncommon for clubs to appealtheir cases to the Supreme Court.Over the years, the systemimproved enormously.A reporting officer (who actedas prosecutor)was introducedinto the proceedings…I believe that in the newjudiciary a wider communityoverview would be healthier.This does not necessarilymean the jury should includea woman, but it shouldinclude someone from thebroader societal spectrum.As a result of the Greg Williams case(9 weeks for pushing an umpire andno internal appeal there from) anappeals Tribunal was established.For all practical purposes thatput an end to cases going to theSupreme Court ..although the rightis always should the sporting body’sprocesses have been exhausted.As it happened I was elected to theBoard of Athletics Australia shortlyafter that. When I looked at thefinances I saw that AA had spentmany tens of thousand of dollarson legal fees defending selectionsfor National Championships , WorldChampionships and the like. In theold days when it was only gloryand not money and sponsorshipsat stake, athletes would justtake it on the chin if they werenot selected for major events.These days, aggrieved athleteswould take AA to court andof course AA had to incursignificant legal costs eachtime whatever the outcome.I suggested we create a SelectionAppeals Tribunal, modelled onthe AFL Appeals process. Anaggrieved athlete could takehis or her case to a Tribunalconsisting of the State President,a member of the Sports LawyersAssociation and a retired athlete.This was a first for a majorAustralian sporting body and ithas been extremely successful forboth AA and the athletes. It is amuch cheaper alternative thanthe civil courts even though theathletes do have the right to legalrepresentation if they want it.In my 9 years on the Tribunalthere was never a reprimand andon only one occasion was there asuspended sentence handed down.I would have liked to have used thesuspended sentence more often,especially in the cases of playerswith long previously unblemishedrecords, but my colleagueswere not convincible on that.The new judicial system forthe AFL was introduced at thebeginning of this season. It isbased on the NRL system.I think it is regrettable that theAFL has taken a backwards stepwith regard to the involvementof the community generallyand women in particular.I have to say that I do not believethat there was a pressing needfor such a radical revision of theTribunal system. Complaints fromaffected clubs and footballers ofalleged inconsistency are predictableand inevitable. There will alwaysbe a “rogue” case, but overall Ibelieve that the decisions of theTribunal were remarkably consistent.The Chairman kept a meticulousrecord of every offence andpenalty over his years in the joband this record was routinelyconsulted before a penalty wasimposed. Those members ofthe media who were regularsweek in week out at the hearingssimply did not support theinconsistency rationale for change.The match review panel in the newsystem is already being accused ofinconsistency in selecting incidentswhich it deems worthy of penalty.I think there are positives aboutthe new system. The automaticpenalty system saves a lot ofmoney and time in appearancesat a hearing, and we are no longersubjected to the “boys own”bullish which masquerades asevidence from the alleged victim.(Sporting bruises andblackeye,..”I felt slight contactto the side of the head so Itook a dive to get the free”)I DO have some reservations though.I am sorry that lawyers will nowroutinely argue cases at the Tribunal.…they take so much longer..it means an end to the relativeinformality of proceedings.I have reservations about thecontinued on page 44In this day of triple bottomline reporting…a large andinfl uential organizationlike the AFL which relies onpublic support and whichowes its family friendlyimage to its 47% femalespectatorship… has aresponsibility to stay in tunewith community mores andrefl ect community values.43

makeup of the new match reviewcommittee and the Tribunaljury. It is far too narrow.…All are retired players or umpires…This is a surprising backward stepby the AFL which has been aleader in a number of social policyinitiatives in the past decade.I believe that in the new judiciarya wider community overviewwould be healthier. This doesnot necessarily mean the juryshould include a woman, but itshould include someone fromthe broader societal spectrum.Attendees.The Nick Riewolt, MalMichael incident is a goodexample of what I mean.I had lunch with 10 women thatweek…all highly placed executivesin sports organizations. Theywere unanimous in the viewthat the Riewoldt case shouldhave been taken further.When retired players sit in judgmenton present day players… thereis an understandable temptationto visit their own reactions to aparticular set of circumstancesonto the player before them. Thiscan be unconsciously prejudicialas the former and presentplayers may be completelydifferent personality types withcompletely different responses.Attendees.Attendees.The AFL can’t afford to disregardthe wider community view onwhat is acceptable behaviour andwhat is not. It is enough that theRiewoldt incident LOOKED so badfor it to warrant closer scrutiny.In this day of triple bottom linereporting…a large and influentialorganization like the AFL whichrelies on public support and whichowes its family friendly image toits 47% female spectatorship…has a responsibility to stay intune with community moresand reflect community values.Renee King (CIM) Geoff Soon (CIM) Michelle Tesorierio (Communications Committee)Photographs by Scott McNaughtonReproduced with permission from the Law Institute Journal.44

...oh what a night...BY MICHELLE TESORIEROOn a particularly uglywinter’s night in July, itwas hard to think of a betterplace to be than at VWL’s annualmembers and guests’ night.Held at The Apartment in LittleBourke Street, over 120 people lefttheir brollies and coats at the doorand enjoyed a lovely evening withother members and their guests.Organised by Rebecca Anselmiand Verity Shepherdson fromVWL’s Networking Committee,the evening is intended to bean informal get-together wheremembers can meet other members,and where non-members canlearn about the benefits ofjoining VWL. VWL members whobrought a friend got in for free.There was an abundance oftasty food and wine to satisfyhungry after-work tummiesand a door prize. The prize inthe members’ category was a The Communications Committeedouble movie pass. The prize in also used the opportunity to relaunchthe VWL website (www.vwl.the guests’ category was – youguessed it – VWL membership! asn.au) which has been redesignedfor VWL by CIM. Barbara Watroba,Rosemary Peavey, Convenor,Co-Chair of the Communicationswelcomed everyone and spentCommittee together with the CIMa few minutes speaking aboutdesign team, gave attendees a sneaksome of VWL’s recent andpreview of the snappy-looking site.proposed events and initiatives.The new-look website is comprehensive and easy-to-use and includes:• a calendar of upcoming events• information about the work of VWL• profiles of the members of the Executive• a photo gallery of recent events• information about the activities of the VWL Committees and• links to other sites of possible interest to women lawyers.There is a separate members section where members canaccess past issues of Portia, search the VWL member database and participate in online discussion forums.Be sure to check out the new site and keep your eyeout for next year’s members and guests’night…Barbara Watroba and Rosemary Peavy45

women lawyers achievement awards(Victoria) 2005BY ANNE WINCKELPRINCIPAL, LEGAL & EXECUTIVE DIVISION, JONES & KOLLER RECRUITMENT AND CONSULTINGMEMBER OF THE JUSTICE COMMITTEE AND EXECUTIVE COMMITTEAnne WinckelAn interesting and diversecollection of men andwomen gathered for dinner atQueen’s Hall, Parliament Houseon 2 June 2005 to celebratethe achievements of this year’swinners of the Women LawyersAchievement Awards (Victoria).It is the second time that theWomen’s Barristers’ Association(WBA) and the Victorian WomenLawyers (VWL) have collaboratedto facilitate these awards.Rosemary Peavey, Convenor ofVWL, explained on the night that“the Awards were created as itwas recognised within the legalprofession that we were not doingenough to recognise exceptionalwomen lawyers in Victoria.”The awards were first heldin 2003, and were created torecognise both the professionalexcellence of the recipients andtheir significant efforts to advanceother women in the legal profession– be it through opening doors forwomen lawyers in a variety of jobsettings that historically have beenclosed to them, or by influencingwomen to pursue legal careers.The awards were fi rstheld in 2003, and werecreated to recognise boththe professional excellenceof the recipients and theirsignifi cant efforts to advanceother women in the legalprofession.Nominations were sought inthree categories – two forexperienced and successfulpractitioners and a third for a‘rising star’ within the profession.The first award winner for 2005was Judge Felicity Hampel, whowas appointed to the County Courtof Victoria earlier this year. JudgeHampel has previously worked asa barrister, part-time Law ReformCommissioner and Adjunct Professorat Monash University, and is aformer president of Liberty Victoria.She has been a tireless advocatefor women’s rights and humanrights more broadly, and was afounding member of AustralianWomen Lawyers and the WomenBarristers’ Association, as wellas a Convenor of the latter.Dr Vivian Waller from MauriceBlackburn Cashman Lawyersreceived the second award inrecognition of her outstanding workin the area of civil sexual assaultlaw. Dr Waller heads the SexualAssault Unit at Maurice BlackburnCashman and recently completedher doctorate on limitations lawsand the problems they create forvictims of child abuse. She alsohelped pioneer a Women’s LawSection at Maurice BlackburnCashman, which offers a networkThe 2005 winners of the Awardswere: Her Honour Judge FelicityHampel, plaintiff lawyer DrVivian Waller, and barristerFiona McLeod SC. There wasmuch boisterous applause wheneach of the recipients wasannounced. Whilst there wassome discussion on the night asto whether the winners knewtheir fate in advance, it appearsthat the identities of the winnerswere in fact a well-kept secret.[L-R] Award Winners:Dr. Vivian Waller, Fiona McLeod SC and Her Honour Judge Felicity Hampel46

Kim Knightsof advice and support for the firm’syoung women practitioners.The ‘rising star’ award went to FionaMcLeod SC, who was appointedSenior Counsel in 2003. MsMcLeod is a former convenor ofthe Women Barristers’ Associationand has mentored and assistednumerous women at the Bar. Shealso acts as a conciliator for sexualharassment and vilification withinthe Bar and is a member of theEquality Before the Law Committee.Current WBA Convenor, KimKnights, and VWL ConvenorRosemary Peavey were co-comperesfor the evening. The awards werepresented by the Attorney-Generalthe Honourable Rob Hulls, MP, andthe guest speaker for the eveningwas Pamela Tate SC, Solicitor-General for Victoria, who gave ainsightful and thought-provokingreview of the position of women inthe legal profession and the ‘idealof equality of participation’. TheAwards were sponsored by Jones &Koller, Greens List and LexisNexis.It is intended that the awardsbe held biannually, so it is worthconsidering future nominationsnow. Any woman lawyer maybe nominated, provided she hasa recent, significant connectionwith Victoria (evidenced by eitherstudying law in Victoria, beingadmitted to practise in Victoria, orworking in a legal field in Victoria).The author would like to thankand acknowledge Keren Adamsfor her preparation of the pressrelease for the awards dinner,which naturally assisted withthe summary above!Rosemary PeavyBY THE HONOURABLE ROB HULLSVICTORIAN ATTORNEY-GENERAL, MINISTER FOR INDUSTRIAL RELATIONSAND MINISTER FOR PLANNING – 2 JUNE 2005Traditional custodians, people of the Kulin Nation,Members of the Judiciary, Distinguished Ladies & Gentlemen:In the 1908 Commonwealth Law Review, Flos Greig wrote:Rob Hulls“The first women lawyers are hardly likely to make their fortunes. The pioneer neverdoes. The first man that finds his way into the primeval forest exhausts his strength inclearing the ground; the second… sows the seed and erects the buildings; the third…comes along and reaps the profits of another’s labours.”As this audience is well aware,Flos Greig was certainlya pioneer. Over 40 years shecleared the ground and sowedthe seeds, becoming the firstwoman in Australia to beadmitted to practice in 1905,only after legislation removedthe restriction of gender.That it took a further 16 years foranother woman to be admittedindicates the resistant nature ofthe soil she ploughed, but womenlike Greig and then Joan RosanoveI wish that the deservedelevation of women to seniorranks within the professionwent completely unremarked,that the momentum alreadygenerated would inevitablyand irreversibly lead togenuine equality in thepractice of the law.Frustratingly, however, thepath to equality seems to betwo steps forward, one stepback.were the first among many whoselabours and talent cleared theway for a profession from whichwe are all, male or female, nowreaping the profits. More than100 years since Greig becameits first female practitioner, theprofession is recognising that theexpertise of women is somethingto be cultivated, rather than merelytolerated, if the law is to benefitfrom the best and brightest.Similarly, I am proud to say thatcontinued on page 4847

Victoria’s judiciary is now far morereflective of the community it serves.In my time as Attorney-General,fourteen of the 27 Magistratesand fourteen of the 27 CountyCourt Judges I have appointedhave been women. During thesame period, four of the twelveSupreme Court Judges appointed– including the nation’s first femaleSupreme Court Chief Justice,Marilyn Warren – have been women.Despite the controversy that theproposal seems to have generated,I also believe that the actingjudges legislation will add furtherflexibility that can only strengthenthe diversity of the Bench.I wish that, on occasions likethis, the good news could be theend of the story. I wish that thedeserved elevation of women tosenior ranks within the professionwent completely unremarked, thatthe momentum already generatedwould inevitably and irreversiblylead to genuine equality in thepractice of the law. Frustratingly,however, the path to equalityseems to be two steps forward,one step back. We’ve been singingthe same tune for a number ofyears now, but some corners ofthe profession remain tone deaf.Yes, everyone has the sheet music– they know about the research andthe push for equality in briefingpractices and work distribution,the policies are in place and thebrochures are suitably glossy.Anecdotally, however, it seemsthat workplace practices in somefirms are getting worse, rather thanbetter. While aggregate statisticsmay show greater participationby women, they mask the moresubtle forms of discrimination. Itseems that, having paid lip serviceto equality and included it intheir mission statements, somefirms are regressing in terms ofoffering quality part-time work,family friendly arrangements, payequity and promotion of women.No doubt the explanations arethere – invidious inequities beingovershadowed, deliberately orinadvertently, by the loomingpresence of the bottom line. Itis these lurking injustices, theseinformal barriers that are, ofcourse, the hardest to dismantle.What can be done, then, in theface of such cultural intransigence?Obviously, we must halt thearmy of talented but disillusionedwomen who are deserting the legalprofession’s ranks in frustrationat the lack of decent promotionopportunities, the dearth of flexiblework practices and a chauvinisticculture that is resolutely stuck inthe Jurassic era. The Governmentcan certainly get tougher in itsdirect sphere of influence and,while the 32 member firms onour Legal Services Panel arereporting increasingly flexible workpractices, we’re demanding toknow not simply whether womenare getting the work, but also thenature and quality of that workand whether they are briefedacross a range of jurisdictions.We must halt the armyof talented but disillusionedwomen who are desertingthe legal profession’sranks in frustration at thelack of decent promotionopportunities, the dearth offl exible work practices anda chauvinistic culture thatis resolutely stuck in theJurassic era.We must also, of course, try toinfluence those firms not directlycourting Government work, orwho remain steadfastly unevolved.Over many years in politics, I’velearned that it is only once youhave tired completely of sayingsomething – once you’re reciting itlike a demented automaton in yoursleep – that it begins to registerwith the target audience. We mayfeel like the equality message is oldnews, but some of the primevalforest that Greig started clearingremains standing. At the risk oflosing the Green vote with thisanalogy, we must continue to hackat these termite-infested attitudes.As important as this messageis, however, we must not forgetthe bigger picture. We mustnot forget what the law cando to improve the lives of everyVictorian woman. To this end, wehave been building a substantialfoundation, reintroducing painand suffering compensation tovictims of crime and consequentlyestablishing the Victims SupportAgency; as well as establishinga Family Violence Division of theMagistrates’ Court; and castingthe common law’s extraordinarilymisogynist ‘remarriage discount’onto the scrap heap of legal history,to name but a few reforms.We have, of course, also receivedrecommendations from the LawReform Commission regarding thelaw relating to sexual offences anddefences to homicide respectively.Both sets of recommendations areabout effecting cultural changein how we deal with these issues,about encouraging people to comeforward about sexual crime, andabout eradicating the propertiedconcepts of gender that allowedprovocation to persist and limitedthe application of self-defence.We will be introducing a packageof reforms in the Spring session ofParliament which respond to theCommission’s recommendations.In respect of sexual offences,we are considering changeswhich will, for example, preventunrepresented accused personsfrom personally cross-examining48

victims, tightening controls on thecross-examination of children, andallowing expert evidence about thenature of effects of sexual assaultto ensure that judges and jurymembers have access to accurateinformation about sexual violence.In respect of defences to homicideamongst other reforms, we willbe abolishing provocation. Thedefence of provocation harks backto an era where it was acceptable,especially for men, to have a violentresponse to an alleged ‘breach ofhonour.’ It has often been criticisedfor excusing or condoning men’sviolence towards their wives orpartners. Provocation belongs to anera when the man-made law (and itwas made by men) treated womenas chattels. It is time, then, to bringthe law into the 21st century.Of course, legislative or regulatoryreform cannot, of itself, bringabout the cultural shift that allof us here seek, whether it beKeynote SpeechBY PAMELA TATE S.C.SOLICITOR GENERAL FOR VICTORIAin the realm of sexual offencesor within the ranks of the legalprofession. It can, however, senda message about the kind of legalsystem to which we aspire, just asacknowledging the achievementsof those here tonight speaks of ourcollective values. Congratulationsto all award recipients and thankyou for inviting me to sharethis celebration with you.Pamela Tateformer Justice of the HighA Court, Mary Gaudron, oncesaid that “the trouble with thewomen of [her] generation[was] that [they] thought if[they] knocked the doors down,success would be inevitable.” 1They thought that if the formalbarriers to entering the legalprofession were dismantled,it would only be a matter oftime before women wereproperly represented in allfields of legal endeavour.The formal barriers have nowbeen down for some time. Thefirst piece of legislation to enablewomen to be admitted to legalpractice in Australia was passed inVictoria in 1903, the quaintly namedWomen’s Disabilities Removal Act. 2Yet, over one hundred years later,women remain seriously under-represented at the level of seniorpartnerships in solicitors’ firms, atthe level of senior counsel and atthe level of the judiciary. The mostrecent survey of briefing practicesrevealed that the inequities continue.While the Victorian Government’spanel firms have briefed womenon behalf of Government clientsin 25% of matters, womenreceived only 14% of the fees. 3This is despite the efforts of theWomen Barristers’ Associationand others to see the VictorianBar’s Equality of OpportunityBriefing Policy take effect.For me, the most revealing factis that one cannot yet look downthe daily court list in the High,Supreme or Federal Court and havethe reassurance that women arerunning matters - that is, having theultimate carriage and responsibilityfor them as barristers or solicitors- in proportion to their numbers inthe legal profession. If, one day,we satisfy this “daily court list test”,then we will have arrived closer tothe ideal of equality of participation.But we are not there yet.There have been many explanationsfor the continuing underrepresentationof women in theranks of leading lawyers. Somehave attributed it to hostile workpractices, although, thankfully, therehas now been significant progress inthe move towards flexible workingarrangements – including flexiblepartnerships – through the effortsof Victorian Women Lawyers.Others have attributed the underrepresentationmore generally to alack of sensitivity to difference anda failure to see that equality requiresembracing and accommodatingdifference. Yet others haveidentified the flaw in the legalprofession to be the system ofcontinued on page 50For me, the most revealingfact is that one cannot yetlook down the daily courtlist in the High, Supreme orFederal Court and have thereassurance that women arerunning matters - that is,having the ultimate carriageand responsibility for themas barristers or solicitors - inproportion to their numbers inthe legal profession.49

patronage that persists – the desireto create people in one’s own image,to perpetuate the status quo.I believe that all of those mattersare part of the explanationbut that there is more to itthan that. Let me explainwhat I see as a fundamentalproblem in the profession.Some of you may remember a nightabout 18 months ago that wasreported in the Melbourne Age.The article concerned a celebrationof a significant achievement. Thecelebrations gave rise to an incidentwhich became notorious. It wasin early November 2003: the timeof year when the names of the newcrop of barristers who have takenSilk are announced. When theannouncement is imminent, smallhuddles of barristers can be seenat each corner of William Streetplacing bets on the likely winners.In the cafes surrounding chambersthe black Bar diaries containing thenames of all practising barristers inVictoria are surreptitiously extractedfrom briefcases and with a degreeof high excitement (coupled witha duty to be frank) the names ofthose who have probably applied(applications to the Chief Justicebeing confidential, of course)and those who will probably besuccessful, are picked over. On firstobserving this tradition, a friendof mine once said, “all that wasmissing was the knitting needles.”I should add that taking Silk is amilestone in a barrister’s career.It is seen as a recognition ofexcellence and self-confidencein one’s advocacy. Applicationsmust be supported by Judgesacting as independent referees.No cowards need apply.Responsibility for appointmentlies with the Chief Justice of theSupreme Court and, at this time,ultimately lay with the Attorney-General, on the recommendationof the Chief Justice.The announcement was made: 15men and six women. The previousyear, 2002, there were 19 men andsix women, of whom I was proud tobe one. The year before that, therewere 15 men and one woman.What lay behind the quip,in my view, was a belief thatthe legal system, while it mightallow women lawyers to have aplace, does so on the conditionthat women recognise that theyowe their place to the graceand favour of men. It followsthat they are not to takeproperty which the men believeis rightfully theirs.In 2003, one of the names on thelist was a male criminal barristerfor whom a celebration party washeld. As they say, a few drinks werehad. The time came for speeches.A senior criminal Queen’s Counsel,Robert Richter Q.C., rose to hisfeet to sing the praises of the newSilk whom he thought should havemade it on to the list years earlier.Begrudging the delay, he quipped(and, one might say, it was quite outof character) that it was obviouslyan advantage for a candidate for Silknot to have testicles. Unsurprisingly,the comment caused offence,prompting the incident of which theAge reported, a walk out by one ofour esteemed award winners, HerHonour Judge Hampel. Had I beenthere, I would have joined her.For my part, I entered the fraywhen, the next day, I emailedall my known fellow womenlawyers with the question:“Whatever made Robert Richterthink we don’t have testicles?”Behind Robert’s quip lay adistressing attitude. What thequip implied was, that the newmale Silk had been delayed in hisappointment, that he had beenforced to wait before he could takewhat was rightfully his. There wasa sense that the presence of womenat the Bar – and indeed womenwho could command the supportof the judiciary in their applicationfor Silk – had dislodged the man’sentitlement, had compromised hisproperty right. What was seenas justifiably belonging to theman had been taken from him– or, at least, its timeliness had.What lay behind the quip, in myview, was a belief that the legalsystem, while it might allowwomen lawyers to have a place,does so on the condition thatwomen recognise that they owetheir place to the grace and favourof men. It follows that they arenot to take property which themen believe is rightfully theirs.I offer this as an explanation forthe quip partly on the basis of myown experience when applying forSilk. Having applied, I was surprisedto find that I was summonsedto the chambers of a man inauthority at the Bar to “have aword”. I had never worked withthe man and he did not knowme well. This was no part of theprocess, formal or informal.Nevertheless, I was naïve enough tobe gratified when he said, as soonas I walked into his room, that theBar was delighted to support myapplication as I was an excellentand outstanding candidate. Iwas initially taken aback to findthat the senior echelons of theBar had any decisive role to play.But I had generally found theBar a supportive professionalenvironment so, feeling chuffed, Ismiled. My smile didn’t last long.I remained standing as did he.Against that background, came thepuzzling question. ”There [wa]sonly one matter the Bar needed50

to clarify, was I serious in wantingto take Silk?” I responded thatI was “absolutely serious” andI asked whether it was the casethat some people applied whodid not mean to. He mutteredthat for some people it “carriedfinancial risks.” By this stage, Iwas bewildered. No one at the Barhad ever shown concern about myfinancial welfare before. No onewould ever presume to know thedetails of another barrister’s FeeBook and this encounter did nothave a shade of paternalism aboutit – misplaced or not. I realised that Iwas in George Orwell territory. I wasbeing faced with “double speak”.I was pretty sure no man had everbeen asked if he was serious whenhe had lodged his applicationfor Silk. What I did not realise atthe time was that a message wasbeing given to me in code that Ishould consider withdrawing myapplication – ironically, becausemy application had a good chanceof success. The problem was that,if successful, I might dislodgeanother applicant – perhaps a manwhose success might be delayed,although his time was “due”.The reason I am in favour ofthe abolition of the defence ofprovocation is that the genderbiasednature of its operationperpetuates the myth that, atsome level, women are still theproperty of men and thatviolence is explicable – even,perhaps, natural - when thoseproperty rights have beenusurped or defeated.It is this deeply ingrained sensethat men have a right of propertyover the fruits of the profession- that their entitlements are not tobe dislodged by women - whichis the explanation I support forwhy it is that time alone, and theelimination of overt barriers, hasnot led to equality of participationin the legal profession.The assertion by men of propertyrights over things to which theyhave no moral entitlement is to befound in many aspects of our legalsystem. Let me consider just one.Recently, there has been muchdebate about the criminal defenceof provocation and its proposedabolition. 4 I have heard manywomen and men say that the issueraises no question of gender bias, asthe defence is as available to womenas to men – that is, just as a mancan seek to rely upon provocationas a partial defence to a murdercharge so too a woman can raisethe defence if the circumstancesallow. Indeed, it is pointed out thatmany women have successfullyrelied upon the defence havingfaced years of violence and abusewhich ultimately led to a loss ofcontrol. In those circumstances, itis asked: why would one wish toabolish the defence of provocation?The reason must lie in the mannerin which the defence has operated.As the Victorian Law ReformCommission’s report demonstratesunequivocally, the circumstancesin which men and women kill,and then rely upon the defenceof provocation at trial, are vastlydifferent. 5 Some would say theyare “not only vastly different; theyare incommensurable.” 6 Womendefendants almost always kill in thecontext of a long history of brutalviolence which is ultimately beyondendurance. Men raise the defencewhen there has been a sexualor other slight to their “honour”.The “provocative” incident formen is most typically where thewoman threatens to leave or hasleft the relationship, or where shehas started a new relationship. 7As Professor Jenny Morgan andothers have noted, a violent assaultat the time of separation “aimsat overbearing [the woman’s]will as to where and with whomshe will live, … coercing her inorder to enforce connection ina relationship.” 8 Abolishing thedefence will show, as one memberof the judiciary in Canada hassaid: “[a]t law, no one has eitheran emotional or proprietary interestin a spouse that would justify [orexcuse] the loss of self-control” 9exhibited in an intentional killing.In my view, the publicrecognition of rights in astatutory Charter or Billof Rights would provide aframework to support theavailability of the defence ofself-defence in a context of ahistory of family violence.The reason I am in favour ofthe abolition of the defence ofprovocation is that the genderbiasednature of its operation 10perpetuates the myth that, atsome level, women are still theproperty of men and that violenceis explicable – even, perhaps,natural - when those property rightshave been usurped or defeated.But what of those women whohave lived in a domestic relationshipinvolving a history of sustainedphysical abuse? If provocationis abolished, are they to be leftwith lesser defences than theywould otherwise have?The Victorian Law ReformCommission has also recommendedthat self-defence be codifiedin statute. This would make itclear that a person – be it man orwoman – may act in self-defencewhere they believe that the threatof serious harm is inevitable ratherthan immediate. A partial defenceof excessive self-defence wouldcontinued on page 5251

In the same way, there is nomoral justifi cation for theassertion by men in any context,domestic or other wise, ofproperty rights over women.also be introduced where a personhonestly believed his or her actionswere necessary in self-protection,but used excessive force.The statutory changes are “intendedto ensure that these defences aremore readily available to peoplewho kill in response to familyviolence.” 11 It is my belief thatthe operation of these defenceswould be supported if theyapplied against the backgroundof a Charter of Rights.Under the models adopted by theUnited Kingdom, New Zealand andthe A.C.T. for their Human Rightsinstruments, the courts are directedto interpret and apply the law torender it as compatible as possiblewith the rights and freedomscontained in their respectiveCharters of Rights. 12 If Victoriaadopted a Charter of Rights(asis currently under discussionbetween the Government and thecommunity) one could imaginea court in Victoria interpretingthe newly-proposed self-defenceprovisions of the Crimes Act inthe light of the right to freedomof movement 13 , the right not tobe treated in a cruel, inhuman ordegrading way 14 , the right to libertyand security of person 15 and indeed,the right to equality before the law. 16In determining whether a womanwho had been subjected to a historyof abuse had acted in self-defenceby protecting herself, or preventingthe unlawful deprivation of herliberty, a court in Victoria mightwell look to those rights declaredunder a statutory Charter of Rightsto be fundamental to a person’sintegrity. A Judge might look tothe Charter to determine whetherin the circumstances of a historyof abuse, the woman accused wasacting to protect something towhich she had a right. In my view,the public recognition of rightsin a statutory Charter or Bill ofRights would provide a frameworkto support the availability of thedefence of self-defence in a contextof a history of family violence.This has been recognized inCanada, where a Judge of itsSupreme Court, Madam JusticeClaire L’Heureux-Dubé, in deliveringjudgment in 1999, said: 17Violence against women is asmuch a matter of equality asit is an offence against humandignity and a violation ofhuman rights. … sexual assault“is an assault upon humandignity and constitutes a denialof any concept of equalityfor women.” These humanrights are protected by … theCanadian Charter of Rights andFreedoms and their violationconstitutes an offence underthe [Criminal Code].The current Chief Justiceof the Canadian SupremeCourt, the Right HonourableBeverly McLachlin, agreed. 18Where does all this leavethe question of the underrepresentationof women inthe senior ranks of the legalprofession? How can we addressthe failure of the daily court listto reveal the equal participationof women? What do we say tothe testicular quips we hear?In my view, it is important torecognise that many of theseissues have the same source. Weshould expose the quips for whatthey are, an express or impliedassertion of a property right.Seen as such, it is clear that theyhave no moral justification.In the same way, there is no moraljustification for the assertion bymen in any context, domestic orotherwise, of property rights overwomen. Nor is there any moraljustification for men’s express orimplied property rights over judicialappointments, appointments tosenior counsel, the presentationof oral argument in any court ortribunal, the taking of witnesses, thepreparation of court documents,the taking of instructions – nor overthe myriad of senior institutionaldecision-making roles throughoutthe legal profession. If theprofession recognises clearly andfundamentally that the decisionmakingroles do not belong tomen, the advancement of womenwithin the profession will notmeet with the resistance thatwomen are dislodging men fromthat to which they are entitled.While there is no simple or singlesolution, genuine changes inattitudes and beliefs of this sortmight bring us closer to the idealof equality of participation. Itmight allow us to see everywhere,everyday, in the ordinary operationof the legal system, womenlawyers of achievement.Photographs by David JohnsReproduced with permission from the Law Institute Journal.52

1 The Honourable Justice Gaudron, Speech to Launch Australian Women Lawyers (1998) 72 Australian Law Journal 119, at 119.2 (Vic) No 1837 of 19033 Victorian Bar – Equality of Opportunity Briefi ng Policy : 2003-2004 Barristers Briefi ng Report (April 2005), Table 4.4 The Attorney-General for Victoria announced his intention to revoke the defence of provocation on 21 January 2005 in accordance with the recommendations ofthe Victorian Law Reform Commission Report, Defences to Homicide: Final Report (October, 2004) (VLRC report).5 Ibid. 1.40.6 Adrian Howe, “Reforming Provocation (More or Less)” (1999) 12 Australian Feminist Law Journal 127. See also Jenny Morgan, “Provocation Law andFacts: Dead Women Tell no Tales, Tales are Told about Them”, (1997) 21 Melbourne University Law Review 237, at 256 where she says: “ I found no reportedAustralian cases where women were provoked into killing men who left them or who ‘confessed adultery’. This pattern of male violence is confi rmed byempirical research. Polk and Ranson studied all homicides in Victoria between 1985-6 using coroners’ fi les. A major theme identifi ed in homicides involvingintimates was ‘homicides in situations of sexual intimacy where the violence represented an ultimate attempt by the male to control the life of his female sexualpartner’. Within this category, ‘a major variation involved male partners reacting to the woman’s attempt to move away from his control’. ” See also KennethPolk, “Homicide: Women as Offenders” in Patricia Easteal and Sandra McKillop (eds), Women and the Law (1993) 149. See also VLRC report, p. xxv.7 VLRC report, p.xxv; 2.22; 2.23.8 Jenny Morgan, “ Provocation Law and Facts: Dead Women tell no Tales, Tales are told about Them”, (1997) 21 Melbourne University Law Review 237, at 248,quoting from Martha Mahoney, “Legal Images of Battered Women: Redefi ning the Issue of Separation” (1991) 90 Michigan Law Review 1, at 65-6.9 R v Thibert (1996) 104 CCC(3d) 1, at 22 (Major J (in dissent), Iacobucci J. concurring), (Supreme Court of Canada). See also R v Mawbridge (1707) Kel 119;(1707) 84 ER 1115, Ian Leader-Eliot, “ Passion and Insurrection in the Law of Sexual Provocation” in Rosemary Owens Ngarie Naffi ne (ed) Sexing the Subjectof Law (1997), 155.10 See VLRC report, paras. 2.18-2.25; The VLRC sees the problems with provocation as going beyond gender bias.11 VLRC report 1.55.12 See s.6 of the Bill of Rights Act 1990 (N.Z.) : “ Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in thisBill of Rights, that meaning shall be preferred to any other meaning.” See also s.30(1) of the Human Rights Act 2004 (ACT): “ In working out the meaning ofa territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.” See further s. 3 of the Human Rights Act 1998 (U.K.)which requires that all statutes and regulations are, as far as possible, to be read and put into effect in a way that is compatible with the European Conventionon Human Rights.13 The International Covenant on Civil and Political Rights (the ICCPR) article 12, Human Rights Act 2004 (ACT), s.13, Canadian Charter of Rights andFreedoms, s.6, Bill of Rights Act 1990 (N.Z), s.18.14 ICCPR, article 7, Human Rights Act (ACT), s. 10(1)(b), Canadian Charter of Rights and Freedoms, s.12, Bill of Rights Act 1990 (N.Z), s.9, Human Rights Act1998 (U.K.) s.1 and Schedule 1.15 ICCPR, article 9, Human Rights Act (ACT) s.18(1), Canadian Charter of Rights and Freedoms, s.7, Human Rights Act 1998 (U.K.) s.1 and Schedule 1.16 ICCPR, article 26, Human Rights Act (ACT), s.8(3), Canadian Charter of Rights and Freedoms, s.15, Bill of Rights Act 1990 (N.Z), s.19, Human Rights Act1998 (U.K.) s.1 and Schedule 1.17 R v Ewanchuk [1999] 1 SCR 330, [69], referring with approval to the judgment of Cory J. in R v Osolin [1993] 4 SCR 595, 669.18 R v Ewanchuk [1999] 1 SCR 330, [103].53

networking committee reportMANDY BEDE – CHAIRThe last few months hasseen an interesting varietyof events organised by theNetworking Committee,including some that wererun in conjunction withother organisations.• The inspirational speakersevenings lived up to theirname and successfully firedup attendees to think widelyabout taking up opportunities.• The Members and Guests’ Night,held at The Apartment, was alsoa big hit. The evening was alsoused as an opportunity to lunchthe new website. Attendance wasconsiderably up on previous yearsthanks to the efforts of RebeccaAnselmi and The Apartment.Best of all, about half of thosethat attended were guests.• In conjunction with the WomenBarristers’ Association and theLaw Institute of Victoria, wehelped organise a meeting toencourage women to applyfor judicial positions. It was astimulating night (and reportedin The Age given the topicalissue regarding the appointmentof temporary judges).Things to look out for include:• A visit to Artbank in Malvern- invitations coming soon.• An opportunity to hearingabout registering to bea committee or boardmember on government andcommunity boards – again,invitations coming soon.• The AGM in late November. Wehope to improve the size of thegathering so that more peoplecan hear the terrific choir thatwe usually get to sing for us.We look forward to hearing fromanyone who has ideas or projectsthat the Networking Committeemight take on. We are happy to cooperateand work with other groupsto widen the range of activities. Ifyou want to join the committee,please come to a meeting or contactme at abede@mbc.aus.net.You should also feel free to contactany of the hard-working membersof the Networking CommitteeMembers including JenniferTaylor (OPP), Lydia Kinda (thebar), Liz O”Doherty and RachelTempleman (Maurice BlackburnCashman), Rebecca Anselmi(Middletons), Susan Pryde (AGS)or Verity Shepherdson (Freehills).54

membership committee reportJUSTINE LAU AND ALEX NESKES – CO-CHAIRSWith the launch of the newVWL website, memberswill now be able to log onto practice-specific emailgroup lists to share theirexperiences and information.The email lists allow membersto either browse the ‘noticeboard’ of information posted orcontribute to the ‘notice board’.The committee remains committedto expanding the breadth ofmembership and ensuring that VWLis meeting its members’ needs. Onthe agenda for 2006 is a forum orlecture series on ‘women in thelaw’ aimed at encouraging womenlaw students to challenge theirideas of what career options areavailable to them after law school.We are also planning a “Healthy,Wealthy and Wise” seminar for theearly 2006, offering members theopportunity to hear from specialistsin the fitness, beauty and financialplanning industries. Also on theagenda is a focus on practitionersin suburban and rural areas.We would welcome your ideasfor how to make VWL morerelevant and beneficial to you, themember. Please contact JustineLau on justine.lau@maddocks.com.au or (03) 9240 0863 if you areinterested in becoming involvedin the Membership Committee.55

work practices committee reportDEBRA ELLIOT AND VIRGINIA JAY – CO-CHAIRSThe Work PracticesCommittee has had a verybusy year to date working oncurrent and future projects.We presently have over adozen active members whoare involved in the variousprojects currently on the go.Projects on the go…1. The first draft of our 360Degrees Report has beencompleted followingworkshops with focus groupsof lawyers with flexiblework arrangements, theirco-workers, supervisors,clients and support staff. Thereport examines the issuesconcerning the establishmentand ongoing feasibility offlexible work arrangementsand alternative career paths inthe law. The project is beingfunded by the Victorian lawFoundation and is expected tobe launched, published anddistributed in October 2005.2. The broad aim of our nextproject, entitled Where arethey now? is to examine awhether the career paths offemale lawyers are stallingand/or terminating, and atwhat point of their careerthis occurs, and what are thecauses of such a phenomenon.More specifically, thestudy aims to:(a) Determine at what stagewomen’s careers stall in termsof upward progression;(b) Establish the reasons forwomen’s careers being stalled,and specifically, whether itis a direct result of havingchildren and/or inflexiblework practices to supportthe having of children;(c) Determine whether womenare choosing to move intoother areas of law or othertypes of practice (eg in-housein commerce and industry orgoing to the Bar) in order tofind flexible work practiceswhich support having children;(d) Consider whether women’sexpectations of where theywould be in their career isaligned with where theyactually are and if there isa variance, whether this isdue to having children.(e) Consider the careerexpectations of current femalestudents, and look to followthis up in future projects.It is proposed that the project willbe undertaken with the assistanceof, the Law Institute of Victoria viaquestionnaires distributed to currentand past practitioners. It is likelythat the survey will be conductedwith the assistance of the MonashKey Centre for Industrial Relations.3. The Committee is alsoorganising a seminar tobe hosted late this year toprovide solicitors with practicalinformation and tools forprogressing along the Path toPartnership. Various speakerswill present on practicalissues relevant to climbingthe ladder to partnershipsuch as the expectationson junior partners recentlyappointed to partnership.Community Forums:How you can help..1. Striking the Balance:Women, Men, Work andFamily - Draft Report by theHuman Rights and EqualOpportunity CommissionSex Discrimination UnitPru Goward has recentlyreleased a draft Report byHREOC’s Sex DiscriminationUnit entitled Striking theBalance: Women, Men, Workand Family. A copy of the draftreport can be accessed at:http://www.humanrights.gov.au/sex_discrimination/strikingbalance/index.htmlThe final report will be releasedin February 2006. It will explorethe current state of men andwomen’s participation in unpaiddomestic and caring work andmake policy recommendationsas part of the broader goalof promoting gender equalityin paid and unpaid work.Submissions have been invitedon the draft report by the endof September. A working groupof interested VWL members hasbeen formed to work on a VWLsubmission. it. Please emailvirginia.jay@minterellison.comif you would like to be involved.2. LIV Employee Survey- Work FlexibilityVictorian Women Lawyers inconjunction with the LIV areconducting research via a surveyto ascertain the employmentpractices of Victorian law firms.VWL conducted a similar surveyin 2001.56

The results of the survey will becompared with the 2001 surveyresults to determine what (ifany) changes to employmentpractices and policies haveoccurred in the past fouryears. Employee lawyers,particularly those who haveflexible work arrangements inplace or are considering them,are encouraged to contributeto this research by filling ina short online survey at:http://www.liv.asn.au/surveys/workpractices_employee.htmHR managers and staff partnersin law firms have also beeninvited to take part in theresearch in order to provide acomparison between employeeand employer perspectiveson work flexibility issues.Current WPC members:Glenda BeecherLara BlockGeorgina FrostAlina HumphreysVirginia Jay [Co-Chair]Jo-Ann KempFiona KnowlesElizabeth LanyonAlice MacDougallKate MarshallChristine MelisMichelle WhyteDebra Robinson (nee Elliot)[Co-Chair]Margaret RyanInquiries on the work flexibilitysurvey can be directed to AliciaPatterson on ph 9607 9464 oremail apatterson@liv.asn.au orVirginia Jay on ph 8608 2045 orvirgina.jay@minterellison.comIf you are interested in joiningour committee or would haveany general comments, feelfree to come along to ournext lunchtime meeting. Forfurther details, please contactvirginia.jay@minterellison.comor debrarobinson@chubb.com.57

justice committee reportROSALIE CATTERMOLE AND VICKI JAMES – CO-CHAIRSIn 2005, the VWL JusticeCommittee has continued toactively promote justice andhuman rights related issues.The Committee has organised a ProBono Drinks Function which will beheld on the evening of October 20to promote organisations involvedin social justice and pro bono workand the role of lawyers doing probono work for such organisations.This function will includepractitioners speaking about thehighlights of doing pro bono workas lawyers for the community. Itwill be held in conjunction with theLIV and is an ideal opportunity todiscover how to further contributeas lawyers and as individuals.The 2005 VWL Essay Competitionhas been held and finalised. Thewinner is Emily Chew of TheUniversity of Melbourne. Her essayanalysing the legal professionand systematic discriminationwill be published in Portia.The Committee also continues towork with the legal profession andgovernment bodies in regard tocurrent justice and human rightsrelated issues. Consultationshave taken place on a number ofrecent issues such as the proposedchanges to the law regarding thedefence of provocation and aproposed Victorian Bill of Rights.The Victorian Government hasestablished a ConsultationCommittee to obtain the viewsof the public about whetherVictoria should adopt a Bill ofRights. There is a discussion paperentitled ‘Have Your Say AboutHuman Rights in Victoria’. This isavailable at: www.justice.vic.gov.au/humanrights and the Committeeis calling for public submissions.Despite the fact that submissionswere due by August 1st, theConsultation Committee hasindicated that they wouldwelcome further submissions upuntil the time that their report isprepared later this year. The JusticeCommittee would like to encourageVWL members who wish tocontribute to the debate on theproposed Bill of Rights to considermaking an on-line submission.The Committee looks forwardto seeing you at its ProBono Drinks Function.Finally the Committeefarewells Megan Edsall, a longstanding member of bothVWL’s Justice and ExecutiveCommittees. Megan has movedto Switzerland. The Committeewould like to thank Megan forher invaluable contributions tothe Justice sub-committee andto wish her well for the future.The Justice Committee alsowelcomes Tammy O’Connor.Please contact the VWLAdministrator at the Law Instituteof Victoria on (03)96079390 ifyou want to be involved in theCommittee. Monthly meetingsare held on the first Friday ofeach month in the CBD.58

communications committee reportBARBARA WATROBA – CO-CHAIRYou might have noticed thatPortia has been up-gradedrecently and we hope you enjoythe new format. The committeeare looking at further upgradesof the publication to ensuremembers continue to enjoythe publication and that thepublication keeps up with thechanging needs and interestsof the VWL membership.So, the committee would like tohear from you, the readers, aboutwhat you think of the articles,the publication and other issuesaffecting women in the law. Wewould like to publish a regularcolumn - “Letter(s) to the editor”to raise readership issues andcomments. We would also like tocontinue to publish regular bookreviews or event reviews on topicsaffecting women and the law orwomen generally - so if you haverecently read an interesting book orattended an interesting seminar orfunction, write about it and senda report in to us for publishing.The launch of the VWL websitehas also been a major project forthe communications committeeand here too we would greatlyappreciate your feedback to ensurethe website is constantly up tothe standards expected by VWLmembers. So, do visit the websiteand really ‘test drive’ it and thenlet us know what you like, whatyou think needs to be improvedand what other extra features youwould like to see on the websitethat are not currently available.Finally, the communicationscommittee would like to thankBrooke Dellavedova, assistant VWLconvenor for her tireless work inrelation to the re-launch of theVWL website. We would also liketo thank Prue Burrell for all her hardwork putting Porita together andwe whish her all the best in hernew pursuits. Prue has decidedto leave the law and spread herwings to pursue other interests- we will miss her. I too will beoff for a while, taking maternityleave from the end of October butwill be leaving you in the capablehands of the communicationscommittee co-chair: Kathryn Hamill.So if you would like to join thecommunications committee, havean article or report published, writea letter to the editor or contact usfor anything in relation to Portia,the website or communicationsgenerally, please do so, wewould love to hear from you.Kathryn Hamill -kaybeeaych@hotmail.comBarbara Watroba -(ph) 9274 5381 or emailbarbara.watroba@phillipsfox.com59

Becoming a Member