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Mirjana Maksimovic

Evaluate the effectiveness of the legal and non-legal responses in achieving justice in relation to women in
Australia


Laws in relation to women have been altered throughout years to satisfy the rapidly changing views of society in Australia.
With the arrival of the changing status of women in Australia today, law reform must respond and meet the needs of
individuals. How effective these responses will be is determined by how they react, how quickly societys demands are
fulfilled, how flexible the laws are, wether the rule of law is applied and justice has been achieved, whether it is accessible
and enforceable. In the case of recognising the rights of women, legal and non-legal responses in reforming their rights and
entitlements is effective to a certain extent


Family law in Australia has been altered throughout years to satisfy the rapidly changing views of society. With the arrival of
new perspectives of what a family consists of, law reform must respond and meet the needs of individuals. How effective
these responses will be is determined by how quickly they react, how quickly societys demands are fulfilled, how flexible
the laws are, whether the rule of law is applied and justice has been achieved, whether it is accessible and enforceable. In
the case of recognising same-sex relationships, legal and non-legal responses in reforming their rights and entitlements is
effective to a certain extent, as there are areas between federal and state laws, as well as laws between states, where
there are inconsistencies.

With changing perceptions, the concept of marriage is gradually being modified in perspectives of individuals and remains
one of the most prominent issues in regards to recognising same-sex relationships. Originally, marriage, according to
section 5(1) Marriage Act 1961 (Cth), is defined as the union of a man and a woman to the exclusion of all others,
voluntarily entered into for life and still remains its legal definition in Australia. As a result of same-sex couples demanding
equal rights, many legal and non-legal responses have arisen. As part of the legal responses, law reform and legislation
have been passed. The first law to recognise same-sex relationships was the Domestic Relationships Act 1994 (ACT), which
recognises the property rights of homosexual couples and people in non-sexual relationships involving financial
commitment and support and only applicable in the ACT (Excel HSC Legal Studies, Belinda and Dimity Brassil, 2009),
indicating that the law had taken a great step and started keeping up with the changing values being perceived by society,
however it took a vast amount of time. The De Facto Relationships Act 1984 (NSW) was amended by the Property
(Relationships) Legislation Amendment Act 1999 (NSW) to form the Property (Relationships) Act 1984, which recognises
same-sex relationships as having the same legal standing as heterosexual de facto relationships, and provides the same
protection. This Act allowed same-sex couples the same entitlements as if they were married and protection in property
division, inheritance and decision-making in illness and after death (Cambridge Legal Studies HSC, Paul Milgate, Daryl Le
Cornu, Ann Miller, Sarah Robinson, Tim Kelly, Kevin Steed, 2010). Another significant law reform, under federal law, is
introduction of the Same-Sex Relationships( Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008
together with the Same-Sex Relationships (Equal Treatment in Commonwealth Laws Superannuation) which included the
amendment of 84 Commonwealth Acts in 2008, which aimed and succeeded to amend laws about tax, superannuation,
Medicare, aged care, veterans entitlements, workers compensation, employment entitlements and child support.


Furthermore, there are still reforms attempting to be made, such as the three bills that are before the Parliament, all with
the same purpose legalising same-sex marriage in Australia. One of the bills was introduced by Labor MP Stephen Jones
and the other was introduced by Greens MP Adam Bandt and Tasmanian independent MP Andrew Wilkie. The third bill was
already in the Senate also introduced by the Greens (Twin gay marriage bills put before Parliament, ABC News, 13
February, 2012). Australia has also recognised civil unions in the ACT, NSW, Queensland, Victoria and Tasmania. Despite
having extended the rights of same-sex couples, it limits equality since marriage and civil unions are not of equal value.
Even though Australia has come a long way in removing discriminatory laws, there are still areas of family law that same-
sex couples cannot access marriage. Since marriage is a civil institution, governed by secular laws, which all people,
Mirjana Maksimovic

regardless of sexual orientation or gender identity, should have access to(Emily Wilson, Australia slow to legalise same-
sex marrage NeoVox Australia, October 15, 2010), it still remains a flaw and limits the reformation of rights and
entitlements of homosexual couples. Individuals still dont have equal legal access and protection by the law and justice
isnt being achieved. Thus the legal responses have been effective to a certain extent.


Despite legislation and law reform, non-legal responses play a crucial part in recognising same-sex couples. The Gay
and Lesbian Rights Lobby is an organisation in NSW that aims to achieve justice and equality between same-sex and
heterosexual couples. They have been contributing to law reform and certain amendments, which has resulted in the
passage of the Property (Relationships) Legislation Amendment Act 1999 (NSW) and the equal recognition of same-
sex partners under the federal law in 2008. (Gay and Lesbian Rights Lobby, 2011, www.glrl.org.au). The Australian
Marriage Equality lobby group is another substantial non-legal response, which strives to end discrimination based on
sexual orientation. Its contribution has been effective since the outgoing Attorney-General of the lobby group had
presided over the removal of discrimination against gay and lesbian Australian in 85 pieces of legislation (Australian
Marriage Equality, 2012, www.australianmarriageequality.com). Hence these particular organisations have been
effective in its responses, since its contributions have helped in achieving amendments, which indicates the immensity
of their responsiveness, the ability to help with the protection of individual rights and achieving justice. The most
relevant research shows that 49% support same-sex marriage and nearly 70 per cent of Australians believe that
marriage between a man and a woman and their having children together is an important social institution that
should be upheld. (Australia is not ready to say we do to gay marriage, The Sydney Morning Herald, 25
November 2012). Hence conflict between the societys demands and individuals rights, which leads to effectiveness
being limited. Whilst there are positive attitudes amongst society towards legalising same-sex marriage, there are
individuals or organisations that will always oppose, such as the Anglican Archbishop of Sydney, Peter Jensen, since
same-sex marriage raises moral and ethical issues. He argues that its not even discrimination and that the
legalisation of same-sex marriage is an abuse to marriage itself (Same-sex marriage could lead to polygamy, says
Jensen, The Sydney Morning Herald, 11 June 2011) and that allowing same-sex marriage could lead to allowing
polygamous marriage or even accepting incest. Currently there are six Catholic bishops in Victoria urging Catholics to
campaign against same-sex marriage (Catholic Church marshals anti-gay marriage, www.news.com.au, 30 March
2012), which indicates that this is an ineffective response in reforming rights of same-sex relationships and that
individuals opinions can have an impact since it can easily alter societys opinions and infringe the achievement of
justice.


Inequality between heterosexual and same-sex couples, besides marriage, has led to another prominent issue regarding
adoption. Adoption in NSW is covered by the Adoption Act 2000. In NSW, the Law Reform Commission reviewed the
Adoption of Children Act 1965 in 1997 and proposed reforms such as, incorporating the birth family into all adoption
plans, making open adoption the common practice and allowing suitable homosexual couples to adopt children,
which were all incorporated into the Adoption Act 2000 (NSW), except for the allowing of same-sex couples to adopt
(Excel HSC Legal Studies, Belinda and Dimity Brassil, 2009). Only recently has same-sex adoption been recognised in NSW
(in 2010), indicating the lack of responsiveness of law, since it took from 1997 to be reformed. However, it did eventually
meet the rights of individuals and achieved justice, in this case for same-sex couples. In the ACT, same-sex adoption is also
recognised, since the Adoption Act 1993 was changed by amendment under the Parentage Act 2004, which included the
definition of a domestic partnership as the relationship between two people, whether of a different or the same-sex.
Western Australia is another state that has recognised same-sex adoption, since 2002 when the Adoption Act 1994 was
amended (Adoption by same-sex couples, 2009, www.parlaiment.nsw.gov.au). Even though adoption by same-sex
couples is recognised in these states of Australia, the extent to which it is effective is limited since some states/territories
still dont enable equal access to same-sex couples as the law does to heterosexual couples. In Tasmania, according to the
Adoption Act 1988 amended in 2004, same-sex couples are only allowed to adopt if one of the members is related or a
biological parent of the child. This also indicates unequal access, since only certain same-sex couples can adopt. In the
Mirjana Maksimovic

Northern Territory, same-sex adoption is fully prevented by the Adoption of Children Act 1994, in Queensland by the
Adoption Act 1964, in South Australia by the Adoption of Children 1988 and in Victoria by the Adoption Act 1984.
(Adoption by same-sex couples, 2009, www.parlaiment.nsw.gov.au) These amendments have been effective in reforming
rights and entitlements of same-sex relationships, as it helps in achieving justice and protecting the rights of individuals.
However, the effectiveness is limited since adoption laws vary between states, causing great inconsistency and little
uniformity.

Issues of adoption by same-sex couples have led, besides legal responses, to non-legal responses as well. Barnardos
Australia is a non-governmental foster-care agency in NSW and the ACT. Chief Executive Officer Louise Voigt says the main
priority for Barnardos is not the carers' sexuality, but their ability to take care of traumatised children (The question of
same-sex adoption, SBS Radio, 9 July 2010). They openly welcome same-sex couples and contribute knowledge to the
society on issues that can impact them, thus meeting societys needs. Barnardos is guided by the principles of fairness in
distribution of resources and power. Equal, effective and comprehensive civil, legal and industrial rights are maintained.
(Barnardos, 2012, www.barnardos.org.au). Faith-affiliated agencies, such as Anglicare and CatholicCare are still permitted
to discriminate couples wanting to adopt based on their sexual orientation. This is also the case with the Australian
Christian Lobby, which can also discriminate people and exclude them from their services. When Tasmania issued a plan to
tighten laws for same-sex adoption, the Australian Christian Lobby opposed and argued that it is in the best interest that
a child grows up with a mother and a father (Anger over same-sex adoption change, ABC News, 2 March 2012), which
demonstrates that recognition is being limited since there is still discrimination in place leading to the lack of protection of
individual rights. Also, the rule of law is not being applied since heterosexual couples are being looked more favourably
upon in terms of adoption. Unlike these groups, Barnardos has accepted the legislation passed in NSW for allowing
adoption by same-sex couples, which demonstrates that they are contributing to justice being achieved and equality, but
also recognising the rights and entitlements of same-sex relationships. When NSW firstly didnt allow same-sex adoption to
be legalised in 2010, a leading human rights and anti-discrimination lawyer, Wayne Morgan, responded and growing calls
for the Federal Government came to take over adoption laws, (Emily Bourke, Gay adoption riles rights groups, ABC
News, 8 January 2010 ) as it would reduce inconsistency. This response was effective since the bill for legalising same-sex
adoption in NSW was passed the same year. He argued that surveys reflect that the average Australian thinks gay men and
lesbians should be allowed to marry, to adopt, indeed, be allowed to make use of artificial reproductive technologies to
have their own children, therefore, with the passage of the bill, societys needs were met, as well as the reformation and
recognition of the rights and entitlements of same-sex relationships.



The legal and non-legal responses in reforming the rights and entitlements of same-sex relationships is effective only to a
certain extent, since the accessibility, responsiveness, protection of individual rights, meeting societys needs without
violating the rights of individuals, the application of the rule of law and achieving justice is limited. Legal and non-legal
responses should try and keep up with the change of societys perceptions regarding same-sex relationships. Maximum
effort should be applied during law reform, the passing of legislation, through organisations in order to achieve a more
equitable outcome.