FEMINISM AND THE CHANGING STATE

Abstract

Click to increase image sizeClick to decrease image size Notes 1. A version of this paper was presented at the Generations of Feminist Studies Conference, Adelaide, 28–30 June 2005. I thank Chris Atmore for drawing several references to my attention. 2. See, for example, Clare Burton (Citation1985); Suzanne Franzway, Dianne Court and R.W. Connell (Citation1989); and Rosemary Pringle and Sophie Watson (Citation1992). 3. The idea that the state operates through a range of sites so that it is ‘invisible’ is not new and is captured by Davidson's title to his study of the creation of the Australian state (The Invisible State), although he does not deny the importance of the traditional organs. See Alistair Davidson (Citation1991). See also Franzway, Court and Connell (Citation1989). 4. For a comprehensive overview of contemporary currents in feminist scholarship, see Mary G. Dietz (Citation2003). 5. For example, Jane S. Jaquette (Citation2003, 339). 6. See, for instance, Genevieve Lloyd (Citation1984). 7. Several Australian States swung towards neoliberalism in the 1980s and 1990s under Liberal governments, but subsequently softened their hard-line stance under Labor governments. 8. For an overview of these reforms, see Regina Graycar and Jenny Morgan (Citation2002). 9. A graphic picture of the corrosive effects of over-consumption is contained in the work of Clive Hamilton and Richard Denniss (Citation2005). 10. In NSW this was the Anti-discrimination Act Citation1977 (NSW). In Victoria, the Equal Opportunity Act Citation1977 (Vic), was replaced by new Acts with the same name in 1984 and 1995. South Australia introduced the Sex Discrimination Act Citation1975 (SA), which was replaced by the Equal Opportunity Act Citation1984 (SA). 11. The first anti-discrimination legislation enacted in Australia, the Prohibition of Discrimination Act Citation1966 (SA), utilised the criminal standard of proof: ‘beyond all reasonable doubt’. The Act was a dismal failure because the standard was impossible to meet. Today, procedural, not substantive, violations attract fines under most legislation. 12. See, for example, Thornton (Citation1990). 13. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified by Australia in 1983. For more on CEDAW, see http://www.hreoc.gov.au/sex_discrimination/optional_protocol 14. For example, the requirement that an applicant for a school deputy principal must have completed a period of uninterrupted full-time service was held to discriminate indirectly against women in Kemp v. Minister for Education (Citation1991) EOC 92-340 (WA EOT). 15. For instance, Curtis v. T & G Mutual Life Society Ltd (Victorian Equal Opportunity Board) 3 July Citation1981 (unreported). The complainant, secretary to the general manager of the respondent company, was expected to make the coffee and clean the silver, but she was unable to prove that this was sex discrimination as there was no comparable male secretary. The masculinist position of company secretary meant something quite different. 16. The most notorious example involved the challenge to women's health centres in Canberra. See Proudfoot v. ACT Board of Health (Citation1992) EOC 92-417 (HREOC). 17. For more, see Hilary Astor (Citation1995); and Dianne Pothier (Citation2001). 18. Australia ratified ILO Convention 156, Workers with Family Responsibilities, in 1990. In 1992, the ground of family responsibilities was included as a proscribed ground within the Sex Discrimination Act 1984 (Cth) (SDA). All States and Territories, except South Australia, now include parental status, or a cognate term, as a ground in their anti-discrimination legislation: Anti-Discrimination Act Citation1977 (NSW), s49(s); EOA (Vic), s6(1); Anti-Discrimination Act Citation1991 (Qld), s7(1)(d); Equal Opportunity Act Citation1984 (WA), s35A; Anti-Discrimination Act Citation1998 (Tas), s16(i); Discrimination Act Citation1991 (ACT), s7(1)(e); Anti-Discrimination Act Citation1992 (NT), s19(1)(g). 19. Sex Discrimination Act 1984 (Cth), s 14(3A). See, for example, Commonwealth v. Evans [Citation2004] FCA 654. 20. Schou v. State of Victoria (Department of Victorian Parliamentary Debates) (Citation2000) EOC 93-101 (VCAT); State of Victoria v. Schou [2001] VSC 321, (Citation2001) EOC 93-170 (Vic SC); Schou v. State of Victoria Melbourne (Department of Parliamentary Debates) (Citation2002) EOC 93-217 (VCAT); State of Victoria v. Schou (Citation2004) EOC ¶93-328 (VCA). For commentary, see Beth Gaze (Citation2002). 21. Schou v. State of Victoria Melbourne (Department of Parliamentary Debates) (Citation2002) EOC 93-217 (VCAT), p 76,509. 22. It might be noted that the Melbourne law firm Holding Redlich, running the case for the complainant on a pro bono basis through its various hearings, was also prepared to mount an appeal to the High Court, the ultimate court of appeal, provided that the State of Victoria did not sue for its costs if Ms Schou were to lose. No such undertaking was forthcoming. The writer wrote to the Victorian Attorney-General, Mr Rob Hulls, on 25 May 2004 pointing out the significance of the case. The Attorney-General acknowledged receipt and advised that he had referred the letter on to Ms Monica Gould, President of the Victorian Parliament's Legislative Council, for response. No reply was forthcoming. 23. For a discussion, see Thornton (Citation1993). 24. Workplace Relations Amendment (Work Choices) Act Citation2005 (Cth). As the Act runs to 766 pages, it is not possible to analyse it in this paper. For the gist of the reforms, see John Howard (Citation2005); and Misha Schubert (Citation2005). 25. See the US Department of Labor's figures at: http://www.dol.gov/esa/minwage/america.htm#content. Katherine Stone (2004, 271) notes that, taking inflation into account, the minimum wage today is 21 per cent lower than it was in 1979. For a thoroughgoing study of the dramatic changes that have occurred in the US labour market over the last decade or so, see Stone (2004). 26. For example, see Mark R. Freedland (Citation2003, 521); and Jill Murray (Citation2005, 69–71). 27. In terms of the banking sector, see Dunn-Dyer v. ANZ Banking Group (Citation1997) 92-897 (HREOC); and in legal practice: Hickie v. Hunt & Hunt (Citation1998) EOC 92-910 (HREOC). 28. See Finance Sector Union v. Commonwealth Bank (Citation1997) EOC 92-889 (HREOC); Commonwealth Bank v. HREOC (Citation1998) EOC 92-908 (FCA). A restructuring exercise involved the Bank ‘downsizing’ by shedding about 7,500 staff, but employees had the option of taking a redundancy package or applying for a new position. The issue of indirect discrimination arose because the women employees on leave did not have access to redundancy packages. To take up a new position, they had to be available within four weeks. Even thought this could mean that a woman could have been about to give birth, the Federal Court held that the condition was not unreasonable. 29. See Chapter 4 of the Human Rights and Equal Opportunity Commission's Annual Report 2003–4: http://www.hreoc.gov.au/annrep04/chap4.html 30. This was the Affirmative Action (Equal Opportunity for Women in the Workplace) Act Citation1986 (Cth). For a discussion of the lobbying behind the scenes, see Susan Magarey (Citation2004). 31. BCA Submission to the Regulatory Review of the Affirmative Action (Equal Opportunity for Women) Act 1986, 1998. See http://www.bca.com.au/upload/submissions_regulatory_review_affirmative_action.pdf 32. The replacement legislation is the Equal Opportunity for Women in the Workplace Act Citation1999 (Cth). 33. The Reserve Bank of Australia, for example, in its Equity and Diversity Annual Report 2002, while lauding its diversity practices and policies, notes the ‘significant decline’ in staff numbers. The accompanying graph (Citation2002, 16) reveals this to be at least 50 per cent. 34. The labour force participation of women in couple families with children under 15 is 65 per cent, and of women in lone-parent households 54 per cent. For detailed analysis, see David de Vaus (Citation2004, 300–20). 35. For example, see Wendy Brown (Citation1995, 185). 36. This connection between combat and citizenship, or what Iris Marion Young terms the ‘militaristic norms of honour and homoerotic camaraderie’ (Citation1989, 253) has been a leitmotif of the Western intellectual tradition since Antiquity, a congruence that has also been accepted as a desirable, if not essential, prerequisite for leadership. 37. Exemptions are discretionary. For guidelines under the SDA, see http://www.hreoc.gov.au/legal/sda_exemptions.html 38. Sex Discrimination Bill (No 1) Citation2000 (Cth). This bill lapsed in the Senate, and a new bill was introduced in 2002. 39. Sex Discrimination Amendment (Teaching Profession) Bill Citation2004 (Cth). This bill also lapsed in the Senate. The Australian Catholic University (ACU) had unsuccessfully applied for an exemption from the SDA to allow it to offer teaching training scholarships for male students only. See the Catholic Education Office's application for exemption from the bill on the HREOC website (http://www.hreoc.gov.au/legal/sda_exemption/ceo_application.pdf). The ACU was subsequently granted an exemption on 31 March 2004, allowing it to offer 12 scholarships to men and 12 to women. See http://www.humanrights.gov.au/sex_discrimination/exemption/decision.html 40. For example, CitationADI Limited, No A184 of 2004 (VCAT) (unreported). The exemption applied to discrimination on the grounds of nationality or national origin in relation to an application to be employed in defence-related projects in compliance with US law. See also Boeing Australia Holdings Pty Ltd, 8 February Citation2005 (NSW ADB) (unreported). 41. For discussion of the role of conservative groups, such as the Women Who Want to be Women, see Robin Rowland (Citation1984); and Susan Magarey (Citation2004). 42. Also see Barbara Pocock (2003). For an insightful analysis of the way in which Coalition policies construct heteronormativity to the detriment of gays and lesbians, see Carol Johnson (Citation2003). 43. See the HREOC report A Time to Value: Proposal for a Paid Maternity Leave Scheme (2002). 44. Rosemary Hunter (Citation2002) is also sceptical about the ability of the SDA to deliver just outcomes for women in the present climate. 45. Gail Mason (Citation2002) argues that same-sex harassment should not be equated with sexual harassment, as presently conceptualised.