Rewriting the law

Female voices have been silenced in Australian legal system, writes Isabelle Youssef.

Image credit: Garry Wilmore, via Flickr.
Image credit: Garry Wilmore, via Flickr.
Image credit: Garry Wilmore, via Flickr.

Historically, female voices have been pushed out of our legal system: both before the courts and in the law-making process. From this, comes the Australian Feminist Judgments Project, a collection of existing legal judgments that have been rewritten from a feminist perspective. Inspired by the 2010 UK Project, the Australian Project (‘the Project’) is to be published in December 2014. In the UK and Australian legal systems, judges must make and write decisions within the confines of existing law. Authors for the Project also had to write within this constraint and therefore the Project explores the potential for feminism in the law as it currently stands.

Dr Trish Luker, a post-doctoral research fellow at UTS and one of the four leaders of the Australian Project, said that there were “clear hopes” for the Project as an exercise which could be used for teaching purposes and read by judicial officers. The Project comes at an important time in Australia’s legal history, as there has been a significant increase of women on all levels of the bench in recent years.

Each rewritten judgment is accompanied by a commentary that reflects on the original judgment and how the feminist judgment alters this. Most of the judgments are written by feminist academics, covering diverse areas of law, including not only criminal and family law, but more unexpected areas such as consumer, tax and constitutional law.

Dr Luker described the feminist approach taken by each writer as “intuitive.” She said that she and her co-editors were “very open to the fact that there are many different feminisms” and that the feminist angle taken varied “according to the intention of the rewriter.”

Ms Heron Loban, one of three Indigenous contributors to the Australian Project, rewrites a 2005 decision ACCC v Keshow in which Mr Keshow, who owned a business that sold children’s educational materials, targeted Indigenous women in the Northern Territory. He created payment plans in which he automatically deducted money from their accounts. He was found to have engaged in unconscionable conduct, for selling toys which were not age-appropriate for the women’s children; deducting money for goods which were never provided; and taking advantage of the lack of commercial knowledge or education of the women.

Dr Luker identifies this case as “highly distressing” and Ms Loban’s judgment seeks to reinsert the Indigenous women’s voices into the case. The original decision was based on the technicalities of the transactions and the key role of gender and race in their interactions was completely overlooked. This reinsertion of a human voice and recognition of power imbalances in relationships can only be beneficial to legal development, both in terms of being a catalyst for law reform and for a better experience of the individual in the legal system.

Dr Luker identified rewriting judgments with accuracy in the law at the time of the decision as an issue with the constraints of the project. Dr Luker said that Dr Irene Watson, another Indigenous scholar, recognized that “she didn’t feel that she was able to speak with a sovereign Indigenous woman’s voice” within the confines of existing law from the outset.

The Project is a very exciting endeavour as it explores the importance of developing inclusive discourses in law making. In the Foreword to the UK Project book, retired judge Baroness Brenda Hale writes that the Project opens fascinating possibilities: “not the straightforward, predetermined march from A to B of popular belief, but something altogether more complicated and uncertain.”

While titled the “Feminist” Judgments Project, it seems that these cases are not only feminist but also humanistic – they very necessarily reinsert the individual’s story into court decisions.