Mapping jurisprudence

The influence of feminist thought on Australian jurisprudence

One of the aims of the Australian feminist judgments project is to investigate the impact of feminist thought on Australian jurisprudence to date. As part of this investigation we have produced the following compilation of judgments nominated by participants in the project and/or identified in Australian feminist legal literature as contributing a feminist perspective to law. In each case we provide a brief summary of the case and the perceived feminist nature the judgment. We emphasise that this is a work in progress and welcome further suggestions to add to the collection.

The cases are organised into the following categories, and are arranged chronologically within each category:

Case studies

Four key areas of Australian law, which have been subject to feminist analysis, have been selected as case studies for this research.

Battered woman syndrome

The concept of ‘battered woman syndrome’ (BWS) was first raised in Australian case law in the early 1990s. Throughout the 1990s BWS was discussed in many subsequent cases and academic articles. This aspect of the project maps cases, academic analysis and law reform to consider the role of feminist academic critique on the development and disappearance of ‘battered woman syndrome’ in judicial decision-making. We provide a summary of relevant cases and consider feminist academic commentary of the cases where available, noting whether this commentary is neutral, positive or negative. Since about 2000 there has been significant law reform and we also identify relevant law reform activity. Where the information is available we have also identified women judicial officers in red text. This text is up to date to September 2014.

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Sexually transmitted debt

'Sexually-transmitted debt' (STD) typically refers to a situation where legal liability is spread from the principal debtor to his partner. While this may occur within a range of relationships and situations, the cases and commentaries mapped here relate to wives (and after 1998 also de facto partners) taking on economic liability for their husbands’ business borrowings or debts of the family company. The main concern is that the spouse takes on obligations due to the circumstances of the relationship, rather than an awareness of the liability or because she receives some benefit. The cases typically arise where there is company insolvency, husband bankruptcy or a relationship breakdown. Often the spouse liability results in the loss of a family home that has been provided as security. This part of the project maps cases, feminist commentary and law reform related to the recognition of STD within contract law and corporations law. We provide a summary of relevant cases and cite feminist academic commentary of the cases where available, noting whether this commentary is neutral, positive or negative. We also identify relevant law reform reports and industry or legislative intervention. In the map, we have identified women judicial officers in red text where known, and links to cases are provided if they are publicly available. This text is up to date to December 2014.

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Sexual harassment

Sexual harassment was recognised as a form of sex discrimination in Australian law in the early 1980s. Courts have generally adopted a liberal interpretation of behaviour which may be classified as sexual harassment, to include unwelcome conduct of a sexual nature and have recognised the relevance of power relations, particularly in the workplace. Decision-making in this area raises important legal principles, notably the ‘reasonableness test’ and the standard of proof, both of which have been subject to sustained feminist critique. This case study maps judicial responses to complaints of sexual harassment across all Australian jurisdictions for the 30 year period 1984 to 2014. Links to cases are provided if they are publicly available. This text is up to date to December 2014.

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Pay equity

Women’s struggles for pay equity have a long and chequered history. Equal pay decisions by Australian industrial tribunals in the late 1960s and early 1970s represented early victories for the feminist movement, but the Australian workforce remained highly sex-segregated and work in female-dominated occupations remained undervalued. Attempts to tackle the ongoing undervaluation of women’s work were launched in the late 1980s and achieved some success in a series of pay equity inquiries and equal remuneration decisions commencing in the late 1990s. This case study maps the trajectory of hard-won feminist gains as well as losses and reversals in the pay equity arena over 55 years from 1958-2013.

Download pay equity case studies (PDF, 702KB)