The part-time illusion for lawyers with caring responsibilities when applying for work in the Australian Public Service: My View

By Rachel Morrison-Dayan

mother and kids

Photo Credit: How Will They Make it in the Big City by Russ Siedel, Creative Commons

My pet hate is the claim made by the Australian Public Service (APS) to provide fair recruitment procedures and flexible working arrangements. It’s easy to be misled by this claim. I wonder whether this is the case for female lawyers, and indeed other professionals, with care responsibilities seeking to be recruited on a part-time basis.

When applying for a new legal position, one may turn to the APS as a sympathiser that understands how carers struggle to commit to a 37.5 hour work week because they are providing the unpaid social good of care to another person. Some APS advertisements for part-time and full-time legal workers may appear to promise such flexibility:

  • ‘Candidates interested in full time and part time opportunities are encouraged to apply.’
  • ‘We are a flexible employer and are open to discussing employment arrangements that might suit you best at this time.’
  • ‘As an employer, we aim to be a diverse and inclusive workforce, and help our employees achieve a sense of balance between work life and personal life.’

Let’s not jump for joy too soon. For the question is, shiny advertisements aside, how many APS employers actually go on to grant part-time work arrangements to newly recruited lawyers who are mothers of a young child, carers of a disabled adult or an aged parent? My inner conspiracy theorist may be lurching forward as I say this but I hazard a guess whether many applicants are shafted from the recruitment process upon uttering the fatal words ‘part-time requested’.

I must confess, my thoughts linger as to why my own application with a public statutory authority (which noted my availability for part-time hours only) did not proceed to interview stage.

I was disappointed to discover that the Fair Work Act 2009 (Cth) (s 65) makes it clear that the legal right to request flexible working arrangements is only granted to current employees who have accumulated 12 months of service. What is more surprising is that this 12 months requisite does not seem to be quite in tune with the Sex Discrimination Act 1984 (Cth) (SDA).

The SDA (s 14) forbids discrimination on the basis of family (caring) responsibilities in determining who should be offered employment and the terms and conditions of employment that the employer affords the employee. Unfortunately, it is impossible to determine whether the SDA has been complied with because recruitment files are confidential.

The Australian Public Service Commission (APSC) does not allow non-employee applicants to challenge the recruitment process. Where is the ethical conduct and transparency in the area of APS recruitment, or is it a case of discrimination behind closed doors?

In my view, while tougher legislation is needed, at a minimum to ensure its compliance with the SDA, the APSC needs to create (and enforce) policies and procedures to ensure that female lawyers with caring responsibilities are recruited into the APS on a part-time basis. Procedures must also be developed which allow job applicants to raise allegations of discrimination and be met with an adequate response.

Perhaps the issue of discrimination of female lawyers and other professional women and also male carers with family responsibilities in the APS is a matter which the Australian Human Rights Commission would like to take an interest in investigating—sooner rather than later I hope.

Rachel is currently studying for a MPhil in Law (Migration) with Monash University. In 2016 she was awarded the Fragomen Prize for first in her year in the Masters of Law in Migration Law with ANU. She previously worked for a federal government department in Canberra, in its various forms, after legal experience abroad and acquiring a foreign legal qualification. Rachel likes to write creatively in her spare time and has been published in a number of magazines. Originally from Sydney and Newcastle in NSW, Rachel now lives in Melbourne with her two young children and kitten.

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Why there should be no room in the law for celebrants to discriminate on same-sex marriage

This article was first published on 16 November 2017 in The Conversation. You can hear an interview with Becky on this issue here and here.

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Celebrants should not be free to discriminate against couples who ask them to perform a marriage ceremony.  Source: CityofStPete, Creative Commons

The process of legislating for marriage equality is underway. Marriage celebrants are looking forward to Australia’s busiest-ever wedding season. However, with the proposed laws now on the table, not all marriages will be equal.

The private member’s bill sponsored by Liberal Dean Smith is being debated today in the Senate. Attorney-General George Brandis has said he wants to amend the bill to extend religious protections to civil celebrants.

If it goes through, the amendment would permit civil celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs (as another marriage amendment bill did earlier this year).

Permitting non-religious, civil marriage celebrants to discriminate is a bad idea. This goes far beyond protecting religious freedom.

My research into Australia’s marriage laws and civil marriage celebrants leads me to believe that Brandis’ proposed changes will undermine Australia’s flourishing civil marriage system by sanctioning discrimination against LGTBIQ clients. They will weaken marriage equality and will permit humiliating, unnecessary discrimination.

Providing the right to refuse to solemnise marriages to civil marriage celebrants undermines the aims and nature of Australia’s world-leading civil marriage celebrant program. It also compromises Australia’s long-established pluralistic system of marriage, as inherited from England.

Unique weddings and quirky celebrants: Australia’s contribution to the world

To understand the marriage equality law, it is helpful to know a little about the history of marriage in Australia.

Until 1973, when Australia’s world-first civil celebrant program was created, most civil wedding ceremonies were dry, brief and formal procedures conducted by state officials in registry offices.


Read more: As Australians say ‘yes’ to marriage equality, the legal stoush over human rights takes centre stage


The civil celebrancy program was initially set up by the Whitlam-era attorney-general, Lionel Murphy. It went under the publicity radar, unlike the no-fault divorce reforms debated and passed by the federal parliament at the same time.

According to one of Australia’s first civil celebrants, Dally Messenger, the civil celebrant program allowed for a civil alternative to religious marriage ceremonies that was dignified. Marrying couples could choose a ceremony at a place with symbols, dress and a celebrant consistent with their beliefs.

Murphy initially appointed just a small group of civil marriage celebrants in 1973 and 1974. Today, there are around 9,000 civil marriage celebrants registered in Australia. The civil celebrancy program, alongside the secularisation of Australian society, has made civil marriage ceremonies attractive and accessible to brides and grooms.

In other words, before Elvis’ Little Wedding Chapel in Vegas, we had Australia.

It is easy to find celebrants across Australia advertising services for garden weddings, weddings at family homes, beach weddings, skydiving weddings, underwater weddings, helicopter weddings and almost nude weddings (the celebrant said their nudity showed “there was nothing you wouldn’t do to be together”).

Allowing civil marriage celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs against the marriage of partners of the same sex would undermine a key aim of the civil celebrancy program – to allow for a non-humiliating alternative to religious marriage ceremonies.

It is degrading for anyone to be told that they will not be able to be married by a celebrant because of the celebrant’s personal beliefs about them. The law should not authorise this humiliation.

Religious or civil wedding? The value of choice

The proposed exemption for civil marriage celebrants also undermines the long tradition of a pluralistic system of marriage law in Australia.

Since colonial times, Australians have been able to choose a religious ceremony or a non-religious civil ceremony. Both will be validly recognised as a marriage under law.

This system was inherited from England, where both religious (Church of England, Jewish and Quaker marriages) and civil marriages have been recognised since 1836.

Today in Australia, religious marriages must be conducted by law in accordance with the rites and practices of a broad range of religions. Civil marriages must be performed in accordance with the Marriage Act, and are far more heavily regulated by law than religious marriages.


Read more: The marriage equality survey is won, but the battle against discrimination continues


Most Australians choose to have a non-religious wedding. For nearly two decades, civil marriage has been overwhelmingly the most popular way to be married in Australia. In 2015, almost 75% of all marriages were performed by a civil celebrant rather than a minister of religion.

Over the last half of the 20th century, there was a major shift towards civil weddings. In 1959, just 11.4% of marriages were civil marriages. Civil marriages have outnumbered religious marriages in Australia since 1999.

Providing civil marriage celebrants with the right to refuse to marry a couple based upon their sexuality or the religious beliefs of the celebrant brings an element of religiosity to civil marriage. It reverses the historical separation of civil and religious marriage in England and Australia that has been in place since 1836.

The exemption will limit the ability of Australians to opt into a wedding that is not governed by religious values, defying the trend towards civil marriage.

Discrimination on the basis of sexuality or gender has no place in contemporary Australian law and society. If we are to achieve true marriage equality, then prejudice cannot be permitted in the delivery of secular wedding services. Our anti-discrimination laws exist to ensure equal treatment of all Australians, regardless of personal attributes.

Rosemary Hunter on the Scarlet Letter

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We have a new episode of the Scarlet Letter out, and it’s a great one. A couple of weeks ago, the Feminist Legal Studies group put on our first official event – a seminar by Professor Rosemary Hunter of Queen Mary University in London.

In this special episode of the Scarlet Letter, we present Part 1 of the seminar, in which Professor Hunter discusses the Feminist Judgements Project and her research on the role of feminism in the judicial process.

Part 2 of Professor Hunter’s seminar will follow on 15 December.

Have a listen to Part 1 below, and don’t forget to subscribe to the Scarlet Letter so you never miss an episode:

http://directory.libsyn.com/episode/index/show/scarletletter/id/5943268

When it comes to redress for child sexual abuse, all victims should be equal

This piece was originally published in The Conversation on 1 November 2017.  An associated blog post regarding the evidence the authors presented to the Victorian Law Reform Commission can be found here.

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The redress scheme cannot be a truly ‘just response’ if it says some kinds of victims simply don’t count.  Photo Source: Torbak Hopper (Creative Commons)

 

Kate Seear, Monash University and Suzanne Fraser, Curtin University

The federal government last week announced details for its long-awaited redress scheme for victims of institutional child sex abuse. The proposed scheme is a response to recommendations from the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse.

Controversially, the government proposes to exclude from redress anyone convicted of sex offences, and those sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences.

This proposal is profoundly flawed and a step backward. It is made at a time when institutions should be atoning for past wrongs without arbitrary exceptions.

Crimes compensation schemes across Australia

All Australian states and territories have victims of crime compensation schemes. They provide victims of certain crimes with modest compensation to cover their expenses, or payments to recognise wrongs perpetrated against them.

Although state and territory schemes are typically funded by the state, the Commonwealth scheme anticipates that “responsible entities” – such as churches – will pay.

All schemes include criteria detailing who is eligible for support and who is not. People who “collude” with the perpetrator to rort the scheme are excluded. Victoria’s scheme contains an additional, broad provision requiring its tribunal to consider whether victims’ “character, behaviour or attitude”, past or present, should exclude them. The idea of excluding certain kinds of victims from support is is thus not unique.

However, all exclusion criteria warrant scrutiny, as they raise questions about victimhood, the selective recognition of harm, and social and community responsibility.

The Commonwealth proposal is especially in need of scrutiny, because of its historic significance and symbolic role, and also because it involves more specific criteria for excluding victims than other schemes.

The problem with saying only some victims are worthy of sympathy

We have studied how the Victorian law is interpreted and applied. The Victorian provision differs from the proposed Commonwealth one, but what we found offers clues about the significance of the Commonwealth exclusions.

Victoria’s “character” test allows highly partial moral and political judgements about who may be deemed “worthy” of public sympathy and support. For example, people with a history of illicit drug use or addiction can be excluded on the basis that they have a criminal history.

On occasion, victims with a drug-using history do receive compensation, but this can depend on whether tribunal members interpret the crime they have experienced as an explanation or “excuse” for their drug use or addiction. Here, being a victim of child sexual abuse or family violence is considered relevant.

While an experience of crime might lead to drug use for some, this is not the case for others. The nature of addiction is heavily contested, as is the relationship between drug use and past suffering or trauma.

So, there are practical and ethical problems associated with making decisions in legal contexts about why someone might have begun consuming illicit drugs or developed drug problems, and whether that should exclude them from compensation.

Notably, these evaluations can disproportionately affect women, since women are more often victims of family violence, sexual assault and sexual abuse. Such scrutiny may also retraumatise victims and compound, rather than alleviate, their suffering.

As it happens, the Victorian Law Reform Commission is currently undertaking a review of the Victorian Victims of Crime Assistance Act. We recently told the commission that the existing approach is flawed.

Although it might be politically popular – and less expensive – to separate applicants into the categories of “deserving” and “undeserving” victims, it is morally wrong to do so.

We acknowledge that some taxpayers may not tolerate money being given to people with criminal records. Why, they might ask, compensate criminals for wrongs done to them, when they themselves don’t respect the law?

At least part of the answer is that as a society we must acknowledge the seriousness of the impact on individuals of the kinds of crimes sometimes before the Victorian tribunal. The same holds for the royal commission.

In introducing the bill to parliament, Social Services Minister Christian Porter described it as a “just response”:

Children placed in the trust of our society’s institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.

This statement acknowledges that children experienced serious harms in contexts facilitated and overseen by the nation. It insists that the community must accept and respond constructively to this knowledge. Taking a careful and informed approach to the meaning of criminal acts such as illicit drug consumption is part of this obligation.

Importantly, those excluded by the Commonwealth scheme will have been convicted and punished in the past. Should someone who suffered harms as a child forfeit the right to have those wrongs acknowledged? Would this amount to punishing them again?

Justice should apply to everyone

We would argue that a person’s right to justice, to the extent that this might be available through compensatory schemes, should not be tied to past activities.

As justice theorist Sara Ahmed argues we must:

… challenge the view that justice is about […] being the right kind of subject. Justice is not about ‘good character’. Not only does this model work to conceal the power relations at stake in defining what is good-in-itself, but it also works to individuate, personalise and privatise the social relation of (in)justice.

As the royal commission has exposed beyond question, institutional responses to child sexual abuse have often been profoundly irresponsible, and potentially criminal in themselves.

The ConversationThe redress scheme must send the strongest possible message to those responsible. It cannot be a truly “just response” if it says some kinds of victims simply don’t count.

Kate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University and Suzanne Fraser, Professor, National Drug Research Institute, Curtin University

This article was originally published on The Conversation. Read the original article.

 

First act of the family law review should be using research we already have

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We already have a great deal of high-quality information about what works, and what doesn’t, in our family law system. shutterstock

This article appeared in The Conversation on 4 October 2016. Information about the first holistic  review of the family law system since it was created in 1974 can be found on the Australian Law Reform Commission website.

Renata Alexander, Monash University

On September 27, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake what he described as “the first comprehensive review of the family law system” since the commencement of the Family Law Act in January 1976.

The terms of reference are extremely wide-ranging. Producing a report by March 31, 2019, seems overly ambitious.

There has been universal support for such a review from key players in family law, as well as those more on the periphery such as politicians espousing party-dictated views or representing individual (usually aggrieved) constituents.

As much as such a review will serve a valuable purpose, it is important to remember that our family law system has not remained static for the last four decades. There have been numerous significant reforms not only to the statute itself, but to the operation of courts determining family law cases, and allied areas such as family dispute resolution and counselling.

The Family Law Act initially introduced several revolutionary changes. For example, it established the Family Court of Australia; introduced “no-fault” divorce; and totally revamped laws about determining children’s cases and property settlement.

It also set up a new system of alternative dispute resolution and established the Australian Institute of Family Studies (AIFS) as a dedicated research body, along with the Family Law Council (FLC) as a representative body to monitor and advise the federal government on operational and policy matters.

Since then, various aspects of our family law system have been examined and changed.


Further reading: No simple solution when families meet the law


Family law legislation has undergone significant expansion and reform. It now covers divorce, nullity, parental responsibilities and obligations in respect of all children, and children’s rights.

It covers de facto relationships (marriage is dealt with specifically by the Marriage Act), spousal maintenance, division of property binding financial agreements, and family violence. There are now two federal family law courts, but they are overburdened and have long waiting lists.

Researchers too have not been idle. For example, the 1980s and 1990s saw a plethora of reports by the ALRC about domestic violence (1986), matrimonial property (1987), contempt (1987), multiculturalism and family law (1991), justice for women (1994), and complex child contact cases (1995).

More recently, the ALRC has produced two substantial reports on family violence.

In addition, the AIFS, the FLC and the family law courts have each produced numerous reports on a wide range of areas including child protection, parenting arrangements post-separation, and family violence.

The Family Law Act established the Family Court of Australia. Shutterstock

There have also been important bipartisan state and federal parliamentary inquiries, most notably the federal inquiry into child custody arrangements in the event of family separation. This in turn produced “Every picture tells a story” in 2003 and the parliamentary inquiry into how family law can better support and protect those affected by family violence in 2017.

All these resources reflect a rich but largely unconnected tapestry of information about our family law system, which the ALRC can use to assess how best to reform the system.

Yes, the ALRC review of the Australian family law system is most welcome. However, it need not waste precious time or resources to remind us, as Leo Tolstoy wrote in Anna Karenina, that “all happy families resemble one another, each unhappy family is unhappy in its own way”.

Notwithstanding the wide terms of reference, some other areas merit attention. These include the use of “good” evidence-based social science in determining the best interests of children and crafting parenting orders.

Another area is access to justice. The high cost of legal representation and cuts to legal aid mean large numbers of self-represented litigants. Also there is the question of mandatory education for judges and legal professionals in areas such as family violence and child abuse, which comprise over half of the courts’ work loads.

We know that families are complex entities when intact. And it is equally complex and complicated catering to the needs of adults and children once those family structures break down.

New Podcast: The Scarlet Letter speaks to Dr Kate Seear

In this episode of the Scarlet Letter we talk to Dr Kate Seear about the origins of her feminism. We also learn about her work on addiction and the law, as well as her well-known football podcast, the Outer Sanctum.

kate seear

Dr Kate Seear

Interviewers: Dr Azadeh Dastyari and Tamara Wilkinson.

How heterosexual couples are protesting marriage inequality

This article was originally published in The Conversation on 24 September 2016. Dr Becky Batagol is a Convener of the Monash Feminist Legal Studies Group.

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Heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, are using wedding ceremonies to protest marriage law in Australia. shutterstock

Becky Batagol, Monash University

As the spring wedding season warms up, increasing numbers of heterosexual couples are using their wedding ceremonies to call for a change to Australia’s marriage law.

Australian support for marriage equality has steadily increased over the years; it has risen from just 38% in 2004. A July 2014 poll showed 72% of Australians supported the legalisation of same-sex marriage.

A clear majority of married heterosexual couples favour marriage equality. And a 2016 poll suggests that support for marriage equality is high among second-generation Australians.

Despite this support for marriage equality, marriage itself is in decline in Australia. There were just 5.2 marriages per 1000 people in 2014, down from 6.2 in 2004 and 9.2 in 1950. These figures are much lower than in the US. And 74.1% of Australians who do get married now choose a civil rather than religious wedding.

Institutionalised discrimination

At every civil wedding ceremony in Australia, the discriminatory nature of marriage must be announced by law. The Marriage Act obliges civil celebrants to say:

Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

This requirement, known colloquially as the “monitum” (Latin for “warning”), has existed since the Marriage Act was enacted as Australia’s first national marriage law in 1961.

The provision reflects common law and religious views prevalent at the time. Garfield Barwick, the key architect of Australia’s marriage laws, explained in 1960 that the legislation was:

… a contribution towards the stability of marriage.

These ideas persist today. Arguments for protecting the institution of marriage were mustered again by the parliament in 2004, this time to justify explicitly excluding same-sex couples from the Marriage Act. Philip Ruddock, then the attorney-general, said:

The government has consistently reiterated the fundamental importance of the place of marriage in our society … [and will] take steps to reinforce the basis of this fundamental institution.

Heterosexual solidarity

Given the ubiquity of civil marriage and support for marriage equality, how do heterosexual brides and grooms who support marriage equality manage the legal requirement of the monitum at their weddings?

My ongoing research reveals heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, use their wedding ceremonies to protest marriage law in Australia in a number of ways.

Most common were “statements of protest” read by the civil celebrant, bride, groom or another guest before or after the monitum. These express dissatisfaction with the current state of the law and a desire for reform.

Other methods included:

  • the celebrant reading the monitum quietly or turning the PA system down;
  • holding private, legal wedding ceremonies with the monitum, and then a separate, public ceremony without it;
  • holding a commitment ceremony instead of a wedding;
  • having guests wear ribbons in solidarity; and
  • from one celebrant, the omission of the monitum during small weddings where they were confident they would not be reported.

My sample is too small to reliably state the extent to which there is a commitment to marriage equality in civil wedding ceremonies nationwide. Estimates from the celebrants I spoke to ranged, at the low end, from a commitment to marriage equality in 2-3% of weddings conducted by that celebrant to 80-90% at the high end.

I will be surveying all registered Australian civil celebrants to reliably understand the magnitude of the protest phenomenon.

Multiple recent opinion polls suggest the majority of Australians back same-sex marriage. Charles Platiau, CC BY-NC

Reconciling protests with personal opportunity

What my research does show is getting married while disagreeing with marriage law is a pretty narrow space to inhabit.

One bride, Edith (not her real name), arranged for her celebrant to make a heartfelt statement of protest after the monitum at her wedding. Edith acknowledged the difficulties:

I do have friends that say they wouldn’t get married until the law changes. And I felt like I didn’t want to wait for that. We have reasons for wanting to get married now and do it. There are probably some people who would feel that that’s selling out, and I totally get that, but I just felt like I really wanted to make that clear and not partake in something exclusionary.

Some couples aren’t prepared to sign up. Suzanne and her partner, Kieran, had a wedding ceremony surrounded by family and friends in 2015, but this was not a legal marriage. Suzanne explained why:

Now, women aren’t so much discriminated in the Marriage Act, but same-sex couples absolutely are. And, to me, signing that document is equivalent to saying, ‘I don’t like Hitler, I’m going to join the Nazi Party’ … [people that] get married are inadvertently endorsing the legislation.

If everybody turned around and said, ‘Well, I’m just not going to get married under this legislation anymore,’ the government would be forced to look at it … I cannot sign that document, because as soon as I say I’m legally married … I am consenting to the very issues that I stand against.

Suzanne’s views might suggest something important about Australia’s discriminatory marriage laws: rather than protecting the institution of marriage, they may be directly damaging it. Not only are LGTBI couples unable to access marriage, but straight couples may be unwilling to join an institution seen as exclusionary and outdated.