Social Issues / How Effective Are The Legal And Non-Legal Responses In Addressing The Changing Needs Of Women?

How Effective Are The Legal And Non-Legal Responses In Addressing The Changing Needs Of Women?

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Autor:  anton  18 December 2010
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How effective are the legal and non-legal responses in addressing the changing needs of women?

The road to equality for women in Australian society is long but not without merit. However have females after two hundred and eleven years reached their destination? This is debatable but it is clear that there have been changes, both legal and non-legal. The answer lies in the exploration of the effectiveness of the mechanisms in place to determine where women have been, where they are now and where they are going in the future.

Life at the beginning…..

The journey commences on the 26 of January in 1788 when 191 female convicts arrive on the first fleet at Sydney Cove. The attitude was that to be female you were immediately subservient to your male counterpart, be it a husband or father. Unmarried women were looked down upon by society and subsequently they sought to be betrothed as many times their future welfare was at stake. Single women relied on the support of relatives and were seen as recipients of charity rather than fulfilling any useful purpose. Generally Women were acclaimed to be less intelligent and hence destined to a life of domesticity and child rearing. Ironically lower class women had more rights as they could acquire a job but it was generally out of necessity and they were low paying and menial. Employment included; professions assigned to women such as teaching, nursing or piecework.

Society claimed and legally stated that women were not individuals and hence did not have the opportunity to vote and had no voice in the political direction of their country. Women had no economic rights and were “unito caro” or one entity with there husband. They did not even have the right for sexual consortium but were expected to meet the needs of their husband. Living in a male dominated society it was very difficult for women to express their opinions especially if they contradicted their husband beliefs. Consequently their education was restricted to subjects that prepared them to a life of domestic service and the majority experienced discrimination if they sought for a higher education. This is evident in the case Jex- Blake v Senatus of the University of Edinburgh (1893) where Jex-Blake a female student wished to study medicine but certain lecturers refused to teach female students and so she could not practise medicine. When she demanded equality, she was unsuccessful. The university declared that its charter referred to “students or persons” and over time this meant exclusively male students. It seemed to claim that women were not “persons”.

The property woman took into a marriage, or acquired, was legally absorbed by their husbands. Furthermore, married women could not make wills or dispose of any property without their husbands' consent. Marital separation, whether initiated by the husband or wife, usually left the women economically destitute, as the law offered them no rights to marital property. Widows often found themselves in a similar situation as they could not keep their spouse’s property unless it was declared in a will but a husband was not legally obligated to provide support for his wife.

Loosening society’s chokehold

“Her only method to produce release, redress, or change, is to ceaselessly agitate” as quoted by Louisa Lawson dawned the beginning of the change of society’s perspective and characterised how the responsiveness of the legal system generally reflected the attitudes of the public; otherwise if individuals did not value the law they were less likely to abide by it. Over time social changes occurred because of catalysts such as the historic events of World war one, two, Vietnam and the feminist rallies of the sixties. It was these social changes that led to women receiving legal rights enjoyed by men for so long through legislation, precedent and non-legal mechanisms. These changes occurred in many areas but some of the most pronounced are: Political suffrage, Economic rights, Marriage and Property.

Political suffrage

Feminism shaped the beginning of a new political identity for women with legal and political advances and social liberation. A Non- legal organisation such as the Australian Women’s Suffrage Society was formed in 1889. Their goal was to achieve the same rights for women as were possessed by male voters. The Society argued for equal justice, equal privileges in marriage and divorce, rights to property and the custody of children in divorce. The Women's Christian Temperance Union was another powerful force in the struggle for equal voting rights formed on the 16th November 1887. The Society sought social reforms which included establishing equal moral standards for both sexes.

Women argued for freedom from political subjugation on the basis of individual rights. They were focused on attaining equality for women in the community. They petitioned to gain attention of political and civil rights to those of men in comparison to women and were concerned with the general liberation and advancement of women. During this time period they were considered radicals and organised rallies, public meetings, undertook hunger strikes and disrupted government meetings in order to increase support for their cause. They were also concerned with the franchise, access to parliaments as voters and candidates. Challenging society’s attitudes on the range of restrictions which were limiting their lives was important because it gave a voice to the oppression felt and was one of the first ways to spark change.

Through legislation women in South Australia were allowed to vote in 1894. Then in 1902 on 12 June the Commonwealth Franchise Act granted the right to vote and stand for election for the Australian parliament to women on the same basis as men. It was not until 1908 that all women in all states could vote in state elections. This was a milestone towards equality for women and it was one of the most effective means for women to have an opinion on public matters concerning Australia but it is not completely successful when women are still subject to social prejudice.


Along with the right to vote, the right to own property was one of the first inequalities addressed in legislation. The Married Women’s Property Act 1893 gave women the right to enter contracts and therefore they could own property. Married Person’s (Property and Tenants) Act 1901 gave women the right to sue and be sued. Another important legislation was the Family law Act 1975 (Cth) that recognised the non-financial contributions to property within a marriage and allowed the opportunity of a “no fault” divorces. This was particularly important because it took into consideration the non-financial contributions of women and therefore a more equal division of assets occurred upon the disintegration of a marriage. The introduction of the Guardianship of infants Act(NSW) meant that either parent was allowed custody of the children involved. This was one of the many rights women societies fought for as previously women could only have custody if the husband was dead. These laws meant that women did not solely depend on a male to function in society and they began to appear more independent. They were entitled to deal with property and any money related to it.

This did not mean that women were financially secure. The judicial decisions of courts were prejudiced at times. In the case of Mallett v. Mallett (1984) the High court rejected the idea of an equal split of assets after considering the wife’s role as a domestic. As decades have passed the courts have improved their reputation by endeavouring to resolve orders in a fair and reasonable distribution.

Economic Rights

To reach a form of equality in the workforce, women required a combination of non legal responses to place pressure on government and government support to enact legislation. In this particular time a women took the job of a man and hence they were subject to discrimination and exploitation at the hands of their employers. It was therefore necessary to obtain equality of access to education and training so that women could move away from menial labour.


In 1867 it became possible for women to attend as “students” in university in Australia. This did not eradicate subject discrimination whereby schools prepared a women to be a stereotypical domestic continued until the late 1950’s and 60s. It was still difficult for women to enter certain courses at University because of social pressure and discrimination. The case Leves v. The minister of Education (1986) created a foundation for female rights because it pointed out that subjects offered by schools was based on stereotypical preconceptions and this was unlawful gender discrimination according to the Anti-Discrimination Act 1977. In 1894 in an Adelaide newspaper, an article stated, “women who have been occupied with books or business to the exclusion of learning how to make a home will not be very desirable as wives”. The media further demonstrates the institutionalisation of discrimination between males and females within society. In addition, the media helps to create standards and expectations for different gender roles to imitate.

Women gained admittance in 1882 into Sydney University and the first female law graduate in 1902 was not entitled to practice law in NSW, even though she had a law degree in the case Ada Evans v Sydney University, until the NSW Women’s Legal Status Act was passed in 1918. In the 1980’s the New South Wales government established educational programs promoting girls education. As a result it was so effective that to this day females surpass the men. Women have either equalled or exceeded the number of men graduating from law schools in Victoria during the past 20 years. The statistics are as follow

• Nationally, women comprise 41% of solicitors but only 16% of principals (partners/sole practitioners) in law firms.

• It was reported in 2000, that in 1996 the male/female Year 12 retention rate was 66% for males compared to 77% for females.

• When it comes to 17 to 24 year-olds participating in tertiary studies, the figures showed a 32% participation rate for males compared to a 30% rate for females.

• In 1906, shortly after Federation, there were 142 women (13 per cent) among the 1054 students at the University of Sydney, and 128 women (15 per cent) among the 853 students at the University of Melbourne. In 2001, women made up 57 per cent of the 206 834 higher education students commencing an undergraduate qualification. A total of 41 232 women were starting postgraduate studies in 2001, i.e. 50.5 per cent of postgraduate commencements.

While there is improvement, for the social status of women in education and work participation rates, women still are experiencing conflict and differences in power in the workplace.


Sexual division with labour has always been common in the workforce. Females have generally experienced an income much lower than males. The defense of this discrepancy was that men had to support a household, whereas women were supported by their husbands or fathers as outlined in the 1907 Harvester Wage case. Equal pay, to some degree was only established by the Conciliation and Arbitration Commission in 1972. Beforehand the Industrial Arbitration (female Rate) Amendment Act 1959 (NSW), the Fruit pickers Case in 1913 and the Equal Pay case of 1969 declared that equal work value should receive equal wages however this only applied to work that was not considered a female profession. However this resulted in problems for judges and commissions agreeing on what work was of equal value. There are many factors affecting pay differences. These included women tending to work less overtime because of family commitments, women’s careers being interrupted by childbirth and child-rearing, men tending to hold jobs requiring greater skills and therefore being paid more and occupations dominated by men tend to be more profitable.

The stereotypical roles that caused job segregation were a problem for women in the workforce. The international Organisation for Economic Co-operation and Development (OECD) reported that Australia has the most sex-segregated workforce. It seems that the social attitude influences traditional roles being pursued in education, which leads to lower pay. An educative kit of case studies related to sex discrimination and harassment was launched in 1999. On the International Women’s Day 1999, the federal Sex Commissioner wrote, “while Australian women have gained significant ground there remain those in our community who lack an understanding of the basic first principles of equality and good management... a workplace free of sex discrimination and sexual harassment is a human right”. Women have increased their power in the employment sector, as their contributions have become important for production.

The perpetrator of sexual harassment is generally in a position of power. Women who are subjected to it generally suffer turmoil. They do not complain out of the fear of losing their jobs, being black mailed or threatened. The two pieces of legislation that are enacted to regulate sexual harassment are the Sex Discrimination Act 1984 and the Anti Discrimination Act 1977(NSW) which outlaw the harassment of person on the basis of their gender with sexual connotation. However it is up to the employer to ensure that they maintain a harassment free workplace. The ability to monitor this makes this a difficult task. The Human Rights and Equal Opportunity Commission Act 1986 (Cth) promotes the principle of equal employment opportunity for all people. The Affirmative Action (Equal Opportunity for women) Act 1986 (Cth) attempts to provide women with equal access to promotional positions and employment and generally to reduce discrimination.

The legal responses have given women a formal method to resolve disputes. They acknowledge that women can experience inequality in the workplace. An understanding is beginning to be reached; that women have children and provisions need to accommodate this. Legislation requires employers to create and maintain an environment that promotes equal opportunity to all workers. It is a crucial step in altering the attitudes of society which will provide future benefits to women to effectively participate in the workforce. Legislation has allowed women to receive benefits such as paid maternity leave, family leave, more flexible laws, in-home child minding and job sharing, however this is not in all professions. Unfortunately all this legal addressing of the changing of women’s roles has led to the idea women are promoted because of sex and not ability. Men feel discriminated against at the women’s expense. There is the chance that these laws could be used in retaliation against an employer rather than addressing situations of equality.

However in comparison to their male counterparts, most women still tend to be employed in jobs that are not as secure: part-time work and lower paying jobs. Even though steps have been taken, their effectiveness is in question because according to the board of statistics results, it’s apparent not all women want to dedicate themselves to a career, many women prefer to work part-time or accept less demanding positions. In other words, women’s own desire for a life outside work has been a factor in the so-called glass ceiling. Some feminists have a problem with this view because they feel that it is the social differentiation between the genders that has caused obstacles for women following a career path rather than their own desire not to pursue a career.

During the late 1930’s Lucy Woodcock, Muriel Heagency and Jessie of the New South Wales teachers federation established the Council for Action for Equal pay. As the first predominantly female union they promoted equal pay, help for women in poverty and in the work force. They were responsible for lobbing at the United Nations for women rights charter. Women as a group are still poorly unionised (only 32%) and where they do exist they are not powerful enough to gain large improvements in the workplace for women. Another organisation that was and still is an influential power is the Women’s’ Electoral Lobby founded in 1972 placed pressure on politicians, unions and employers and educates many people on the behalf of women to seek to change social attitudes and practices which discriminate against women. Although no major change has been implemented by WEL and support groups of the like, it is their voice that politicians take seriously during election as the needs of women are being recognised.

The shift of traditional roles of women in society has led to men re-evaluating their roles in society. Amongst changing feminine views men have had to redefine masculinity. In the 1980’s the development of a men’s movement called Fathers for family Equity attempted to do so as a response to the effects of the feminist movement and the redefining of femininity, they continue to meet regularly in the 21st century. They believe that divorce, family law and economic rationalism are reducing many males to a marginalised role within society. They feel that their situation is very similar to women’s, 35 years ago. Many men feel that due to divorce, unemployment and shifting social attitudes they are in an inferior position. Coupled with females outperforming males in a number of social and economic indictors, some males do not feel it is an advantage to be a male, but should there be? Perhaps changing social norms and values especially related to the changing structure of the family and alternative family arrangements are part of the reason for this commonality between males and females in their feelings about their social roles and status in society.

Marriage and Domestic violence

The perception of society towards domestic violence is changing but only slowly. The changes that have occurred are the work of education policies and welfare groups creating supportive environments for these abused women. Women within marriages were given very little protection and were often at the mercy of the men. Legislation, such as the Crimes Act 1900(NSW) allowed women their right to consortium and ensured men could be prosecuted for rape within marriage. Other laws that followed included the Crimes (sexual Assault) Amendment Act 1981 (NSW) which raised recognition of women being intimidated within relationships by men. The Crimes (Homicide) Amendment Act 1981 (NSW) as well as the case Runjanjic and Kontinnen (1991)(SA) allowed the penalty to be greatly reduced for women who had been in an abusive relationship and murdered their significant other. This came to be known as the battered women syndrome.

Government departments such as the homeless person’s information Centre are an established safe house for women. The department of social security can provide financial assistance. The Domestic Violence Advocacy Service (DVAS) give legal advice and free legal representation. Legal Aid may provide representation for an apprehended violence order or (Avo). An AVO is a court order restricting the behaviour of the alleged offender in relation to the victim of the alleged violence a.k.a. a restraining order. Welfare groups such as the Smith family or the St. Vincent de Paul Society should be contacted for emergency financial assistance.

Women’s Health Centres and community health centres provide individual or group counselling. The Women’s Domestic Violence Court Assistance schemes operate in local courts and are initiated by the New South Wales government. The government has created the Crimes (Domestic Violence) Amendment Act 1982 which introduced the apprehended domestic violence orders (ADVOs) for the first time. It became against the law to stalk women and easier for women and the police to take out AVOs on individuals. New precautions have also allowed the named individual to have their firearms removed from their possession. It is clear that these policies provide much more protection than what was available two decades prior; however the legal system has no ability to prevent domestic violence. Hence it is still a serious problem in society. It is a crime that is difficult to enforce and the majority of women subjected to it do not report it. Action can only take place once the initial damage has occurred and even AVOs cannot prevent domestic violence from occurring again. Women trapped in violent circumstances require more legal reform in order to protect their rights. Police as well as courts need to have the authority to impose harsher penalties upon offenders, but this becomes difficult depending on the social circumstance.

What of the future?

Women have come a long way from oppressive subservience; however social segregation still remains between males and females as the levels of power and authority continue to cause conflict. Maybe equality of opportunity and outcome can be better achieved through cooperation and focus on commonality between the genders rather than difference. John Howard says “the view that a woman’s place is in the home is clearly outdated and gone for all time”. Paid maternity leave also reveals a more cooperative attitude. It is this support and recognition by the government of female importance that was not present a century ago and perhaps it is a hint of future policies that will attempt to institutionalise a different view of gender expectations. We have not yet reached complete equality but we have better means to create effective solutions for future generations. It is important to realise that the superiority complex established by men was over centuries and it will take time to dissipate.



1. Patricia Hewitt, Australian Suffragettes [Online] Available Retrieved On: 11/08/07

2. The state library of South Australia, Women’s suffrage[Online] Available Retrieved On: 11/08/07

3. Wikimedia Foundation, Inc , Women’s suffrage[Online] Available's_suffrage Retrieved On: 11/08/07

4. The state library of South Australia, Women’s movement[Online] Available Retrieved On: 11/08/07

5. Department of consumer and employment protection History of women in work[Online] Available Retrieved On: 11/08/07

6. Felicia Lieberman, Society and Culture[Online] Available Retrieved On: 11/08/07

7. Wikimedia Foundation, Inc ,OECD [Online] Available Retrieved On: 11/08/07


1. Brogan, Michael; Siow, Veronica; Ejsak, Therese, LEGAL STUDIES,Port Melbourne, Heinemann, 2000

2. Anderson, Maureen; Conroy, Jeffrey: Keese, Ian; Lowe, Anne, RETRO ACTIVE AUSTRALIAN HISTORY, Milton Queensland, John Wiley and Sons, 2000

3. Focus Group: 12 women, chapter, photocopied notes from Mr O’Brien- source unknown.


1. Merit Students Encyclopaedia, 1967ed, s.v “women”

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