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A how-to guide for MPs and policymakers to change the law to improve women’s lives.
Welcome to Feminist Acts. I'm Kate Seear. I'm a professor of law at Deakin Law School at Deakin University.
Becky Batagol:I'm Becky Batagol. I'm
Becky Batagol:a law reform expert and an associate professor of law at Monash University in Melbourne.
Heli Askola:Hi. I'm Heli Askola. I'm an associate professor
Heli Askola:at the Monash Law faculty in Melbourne.
Jamie Walvisch:Hi, everybody. I'm Jamie Walvisch. I am a senior lecturer at the University of Western Australia.
Becky Batagol:And together, we're the architects of the Feminist Legislation Project. So the podcast is a result of a huge seven year project to create a simple how to guide for politicians, policymakers, and future lawyers all around Australia to make simple but impactful changes to the law to improve the lives of women, trans, non binary, gender diverse, and intersex people. We started the project some time ago. A few of us got together at Monash University and we're talking about how we could work together. As academics, we're quite good at criticizing law, but we were less adept at thinking about what the law should be.
Becky Batagol:So it was a it was a bit of a push for all of us to say, rather than just criticizing the law, let's get in and actually make the laws we want we wanna see to make a more gender just country. So we've got I'd put together a few different questions, which I think we do should we ask each other these questions?
Heli Askola:Mean, we could go around the room. You know? Why don't we talk about why we came?
Becky Batagol:Heli, why why did you why are you involved in the Feminist Legislation Project?
Heli Askola:Well, I was conned into being in it, because I was not trained as an Australian lawyer at all, but I was conned with promises that we would draft international treaties, and that I would get to rewrite CEDAW, the convention on the elimination of discrimination against women. You can leave that in. And then the car got away from us and decided to drive in a different direction, and we ended up, redrafting Australian legislation and coming up with 16 different proposals on how to reform everything from constitutional law to criminal law to migration law to, you know, victims'
Becky Batagol:There's a power in legislation though, isn't it? Because the law law is a language of power. And I think in Australia where we don't have a national bill of rights yet, that it's it's through legislation, through the laws of parliament that that real change takes place in the law. There are 45 contributors to the collection, the book itself upon which this podcast is based. And there's four of us here in the
Kate Seear:room at the moment, which are the editors of the collection, but we haven't yet talked about the larger group of people that contributed to the to the collection and that we will hear from across the course of this podcast. People come from a wide range of backgrounds and areas of expertise. So we have feminist academics, legal scholars, judges, and retired judges, people who've worked as law reform commissioners. We have First Nations contributors and people with lived experience of some of the issues that the book covers. The contributions look at issues from the law of surrogacy, about voting rights, about the law of sexual assault and how consent works, access to all gender toilets, migration law, aging and aged care, how the law of criminal sentencing and supports for victims of crime works or might work more effectively, construction law, and modern slavery, to name just a few, as well as contributions that deal with cultural and religious questions in family law.
Becky Batagol:I'm gonna drop some names in there. Some of the people who've contributed to this project are amazing. It includes the honorable Pamela Tate. She's a former judge of the Victorian Court of Appeal. Kate Eastman, who's a human rights lawyer.
Becky Batagol:Professor Margaret Thornton of ANU, one of the gurus of feminist legal theory. She's been writing since the nineteen eighties in feminist legal theories. It's so amazing having her as part of this project. And we've got a whole lot of new scholars too, recent PhD students, and First Nations scholar scholars, doctor Darnie Linda from the University of Queensland and doctor Crystal Lockwood from Griffith University in Queensland.
Kate Seear:There's some other really well known high profile advocates who have worked on feminist law reform issues for a long time, and this includes Saxon Mullens, who is a survivor and was the recipient of the Australian Human Rights Commission's Young People's Human Rights Medal, back in 2018. And Bree Lee, who's an award winning author, academic, and activist who among other things has, written the book Eggshell Skull. We were really delighted to have a couple of forwards to the book as well from people who are well versed in feminist questions of law reform. The first forward is from Natasha Scott Despoire, who I think needs no introduction, and also Professor Rosemarie Hunter, who's based in The UK and who, among other things, led the Feminist Judgments Project upon which this project is partly partly based or from which it draws inspiration. Becky, can you tell us a little bit about those feminist judgment projects?
Becky Batagol:So there are a number of feminist judgment projects now around the world, and what they are is a collection of writers who get together and look at the most grievous judgments from various courts around the world that harm women. And they take those judgments and they rewrite them and imagine that they are a judge figuratively dressing up in the robes of the judge and rewriting those judgments in a way that reduces the harm. Those projects are amazing and they've they've had tremendous impact in the classroom, in teaching law students about how the law works and who it includes and importantly who it excludes. They've also had a real impact I think in the courtroom in how judges practice. I I know that they've been used in training of judges in different places around the world.
Becky Batagol:We looked at those and we thought we can do that plus more. Strategic litigation to bring about law reform is less important in Australia where we historically haven't had a bill of rights. So changing the law is where it's at. So our idea was to take that imagination, that radical imagination method from the Feminist judgments projects, but to apply it to legislation. Rather than rewriting judgments, we're gonna write rewrite the laws of parliament legislation.
Becky Batagol:And think about who is, again, included and excluded from the law in that redrafting process.
Heli Askola:Well, and can I barge in here as someone who was trained as a civil lawyer in a European system? It's obvious to me why you have to look at legislation. Legislation is everything in a civil law jurisdiction where how judges interpret the law is kind of a secondary matter. Whereas in common law systems, the feminist judgments come from this presumption that that's where the power resides, in the interpretation of the law, not in the making of the law. Whereas to me as a civil lawyer, the making of the law is the first step to whatever the judges will do later on is kind of like a secondary consideration, but the making of the law is where the power is.
Heli Askola:For me, it was never controversial to focus on legislation because that's where power resides.
Jamie Walvisch:And at a practical level, I'd have to say my experience with working at the Victorian Law Reform Commission many years ago was that it's one thing to propose reforms and then another to think through how you're actually going to put them in place. So in the first projects that I worked on there, which looked at defenses to homicide, alongside the reforms that we were proposing, we worked with parliamentary council to draft legislation, that would implement the reforms. So it was incredibly instructive to me because the drafts person kept coming back to us and going, but what do you mean here? And it really forced us to refine what we were saying in order to meet the requirements needed for legislation and made our reform proposals so much more practical and so much more likely to be implemented, which ultimately they were.
Becky Batagol:So why is it important from a feminist perspective to engage with law reform?
Kate Seear:Well, there's a number of reasons. We all work across very different areas of law, and that's perhaps something worth acknowledging right at the outset that we come from very different perspectives and have different interests. But what we shared when we first sat down to talk about this project was a concern or a set of concerns about the various ways that law impacts women often disproportionately or adversely. So on in some instances, there are areas of law that are directly written for and speak to women and women's rights. But in some cases there are areas of law that ignore gender or ignore women's interests altogether or actively enable harm.
Kate Seear:And so even though we come from different perspectives and have different interests and concerns and work on different areas of law, this is a kind of shared concern about the way that the law operates. It's potential to both harm women and harm women's interests and to advance women's interests if the law is done the right way.
Heli Askola:And we also had, I think, a concern not just about legislation but about law reform in that a lot of law reforms had been in fact put forward, and then their implementation had not resulted in the outcomes that feminists who had advocated for those reforms had actually hoped for. And the query was then, what do we do with this observation that after forty, fifty years of feminist law reform or attempts to push for feminist law reform, actually law reform doesn't always work? I think that was part of the dilemma of engaging with law in recognizing that it's unavoidable that we have to engage with law, and it's unavoidable that all of us promote law reform, in our respective fields. But what does that actually look like? And is that actually going to be effective?
Heli Askola:And I think one of the problems that we had to face was that oftentimes people advocate for law reform without actually figuring out how that's going to work in practice. And that then results in the law reform actually not working as intended.
Becky Batagol:As a feminist, if I look back at history of the legal system, it's really clear that it's mostly been written by men, often for men. And then the decisions the key decision makers in any legal system have traditionally been men. And that has resulted in laws that that are apparently neutral and apparently apply to everyone, but applying to women and those who are fundamentally not men in a really biased way and a really harmful way. So I think for me, that was the reason why I wanted to engage in law reform from a really different perspective and uncovering, uncloaking the so called neutrality of the law.
Kate Seear:I've noticed that we're all using the word feminist already without sort of spending some time to sort of step back and reflect on what that word means to each of us, why we use it in this context, and what it means to do law reform in a feminist way. And so Jamie is the man.
Jamie Walvisch:Thanks, Gaynor.
Becky Batagol:Jamie, can you please mansplain
Jamie Walvisch:all that? I was just feeling like I should apologize on behalf of all men for, for for, what Becky was doing before.
Becky Batagol:We need allies. I derailed us. But
Kate Seear:no. I mean, what why did we use the language of feminism, or what does the language of feminism mean to each of you in the context of law reform?
Becky Batagol:As a feminist, and I call myself a feminist because I think it means something activist. It means something means seeing that the problem that is there and the the gender harm of law and actually taking steps to change it. So this is a feminist project because it steps beyond the campus that we tend to reside in as academics and steps literally, figuratively, imaginatively into the parliamentary chamber. And we say, well, we are going to to adopt the processes and the language of parliaments and legislation to try and make change. And to me, that's a feminist act because it's actually saying we're gonna make
Heli Askola:a difference. For me, feminism is about recognising inequality, that targets women, that the law promises to remedy, but it has so far failed to remedy as its promise implies.
Jamie Walvisch:I entirely agree with that, Helly, and think that for me as a man, I can see obviously the way that men have dominated everything in the legal and political sphere forever, really, and the way that that has benefited me. And so a lot of my work has been about trying to use the responsibility that comes along with that to try and redress that imbalance of power and the situation. And, obviously, the major concern of feminism is with gender justice for women, but what's also important to me is gender justice for other groups who are similarly disadvantaged in society. So I think one of the things that I really liked about this project is the inclusive form of feminism. And, of course, there are various different feminisms.
Jamie Walvisch:We talk about feminism like it's one coherent whole, and that's obviously, not the way that it is. But the the form that we adopted in this project was a very inclusive form that acknowledged that trans people, non binary people, gender diverse people, intersex populations face high levels of stigma and prejudice and discrimination in society, similarly face over criminalization, high rates of violence, and that one of our concerns was also to address gender justice in relation to those populations as well.
Becky Batagol:It was really important from my perspective that we were trans inclusive. And I know there's a lot of talk around very publicly across a range of different countries about whether or not feminists should or should not be trans inclusive. And there's a pretty harmful debate that we've heard a lot around recently. But from my perspective, I think there are clear commonalities between trans trans activists and feminist activists. And fundamentally, we think that gender is socially constructed by which we mean it's not something that you're necessarily born with, but something that's created as we grow up.
Becky Batagol:And there are expectations around us either as women or men or or anyone who's not a woman or man, expectations around who we are and what we do. And I think that shared commitment to undoing some of the harmful gender stereotypes is what is totally in common between feminism and trans activism. And I think it was really important for me to to make sure that we're being inclusive in what we're doing.
Jamie Walvisch:One of the problems though that we faced here was that reading a judgment is might not be the world's most interesting thing for most people, but they are eminently readable and especially if they're done from a feminist perspective. Reading legislative amendments is perhaps one of the most tedious things you could possibly do when we really didn't wanna put out a book that was mainly designed to put people to sleep. And so we had
Heli Askola:to We managed to do that, though. Sorry.
Jamie Walvisch:So we had to think about, how we were going to do this in a way that could hold people's attention in some way while still doing what we wanted to do, which is when we came up with the idea of using second reading speeches as the way of, discussing what reforms we were seeking to achieve and trying to put them forward in in a way that captured attention while also maintaining some level of of rigor behind it as well, which I think worked really well.
Becky Batagol:Jamie, what's the second reading speech?
Jamie Walvisch:So when a bill is introduced into parliament, the first thing that's done is somebody just does the first reading speech, which is just to say its title, then there's no further discussion. But then there's a process that needs to be followed, and the second reading speech is the the point of time in parliament where the whoever it is that's putting forward the bill, the the member of parliament, will explain what the bill is about, why they're introducing it, what it does so that everybody understands what this bill is about. It's then after that that, parliament considers the bill and decides whether or not to pass it, and then ultimately, there'll be a third reading speech, which is when the bill is actually formally passed.
Becky Batagol:The other reason why we use second reading speeches is they have a really important role in the interpretation of legislation. So second reading speeches are something that judges would use in order to understand any ambiguities or any vagueness in a statute. So the advantage of putting a second reading speech there is we're telling anyone who's gonna use this statute how it should be interpreted. And, course, we do that with our feminist spin in it.
Jamie Walvisch:One of the things that we really wanted to do with our second reading speech this is obviously a political process. And in reality, often politicians may not base what they say in their second reading speech on the best evidence available. There is a perhaps proneness to base it on political factors, exaggeration, and so on. But we wanted to make sure as part of our project here that the reforms we were putting through were properly evidence based and supported, so that we could demonstrate that law reform and legislative reform doesn't just need to be an ad hoc political reaction to whatever is happening at the time, that it can be well thought through, evidence based, and addressing real issues.
Heli Askola:But it was a real challenge to do that precisely because often second reading speeches are political speeches, and they're more focused on rhetoric than on the evidence. And I found that one of the most challenging things about writing a second reading speech because as academics we do write a lot of speeches for ourselves, but they're not written speeches to be published as part of the law reform process. And I found it very hard to find that legislative voice that you are meant to embody when giving that speech because it mixes the political and the legal, and it it tries to bring in a feminist perspective to something that is often not found in second reading speeches.
Jamie Walvisch:And we were lucky in that regard to have the assistance of professor Tom Clark, who is a professor of rhetoric at Victoria University, who helped try and explain to all of the contributors, in this project some of the the tricks of the trade and how to go about constructing a a speech that not only is well grounded but actually is persuasive.
Heli Askola:That's all we have, isn't it? Words are all we have.
Jamie Walvisch:We are wordsmiths.
Heli Askola:We are wordsmiths. I mean
Jamie Walvisch:What a lawyer is.
Heli Askola:Lawyers I I always say to students that words are the only tools we have. We're not doctors. We don't have stethoscopes, and we don't have fancy medical equipment. We're not engineers. We don't have, you know, fancy neutron colliders, etcetera, etcetera.
Heli Askola:We have words. And we change the world with words for the better or for the worse. And those are the those are the tools that we have, and those are the tools that we need to use.
Becky Batagol:I think the world needs this podcast because it shows us how to do law that benefits those who are most harmed by it. And particularly from a gender perspective, we know that women we know that trans people we we know that women from particular communities such as Aboriginal and Torres Strait Island communities are harmed. And what we've done in this podcast and in this book is to think through those issues. And we've got 16 awesome templates for law reform there that could be picked up at any moment and used to change the law for better.
Kate Seear:Yeah. Well, all of the hard work of actually identifying specific provisions in law that aren't working has been done, and then the hard work of literally rewriting them has has also been done. And that took us a really long time to do because it's such a complicated and technical, activity. But across the course of this podcast, we're going to step you through how we did it, how we chose areas of law, how we went about rewriting them, what we were trying to achieve, what some of the pitfalls of reforming law might be, and how you can ensure that you don't fall into those holes as they as you encounter them. And so in the book, those provisions are now there to be used.
Kate Seear:So if you are listening to this podcast and you're a member of parliament or parliamentary adviser or policymaker, collection. We would love you to listen to the episodes of this podcast where you'll hear the reflections and experiences of all of us who contributed to the collection. And we'd love you to take up those provisions and actually put them into law. You know? Get them into a parliament.
Kate Seear:Get them before parliamentary chamber. Have people debate them and hopefully, pass them into into law because it as I said, it took us a lot of work to get us to the point where those provisions have been redrafted, but they are there sitting there waiting to be put into effect.
Jamie Walvisch:And what I'll add to that is, you know, anyone out there who's listening might think, well, what does a bunch of academics know about redrafting legislation? You probably don't have any idea what you're doing, so we couldn't ever actually pick this up and put them into into practice. But throughout this project, we have been enormously assisted by a parliamentary drafts person who very generously gave us his time and taught us how to read draft legislation and looked over the legislation and identified problems with it and made sure that it was word perfect, which is obviously something that's incredibly important if you're redrafting legislation. And so that's why this stuff really is just ready to be picked up and copy pasted into a bill if somebody had the will and information to do that.
Heli Askola:And that's probably one of the things that I loved most about this project was to learn that there was this field out there of legislative drafting that contains a huge body of expertise that I was not familiar with at all, and that is crucial for making any policy aims, any law reform aims that you might have into a practical reality. And learning about the skill level that is required for legislative drafting has been truly eye opening for me. It's hard. It's very, very difficult. What
Becky Batagol:I loved was the experience of working with other academics and activists around Australia in thinking about the problems and what you know, forcing us to to negotiate what that solution would be. I really enjoyed the backwards and forwards, and it really demonstrated to me how collaboratively we could work together as a bunch of feminists. We could challenge each other, but it could always be done kindly. And that stands in such contrast to the adversarial debate that we see in regular parliaments. And I think it demonstrates how differently feminist processes could be.
Becky Batagol:And imagine what a feminist parliament would look like. Imagine where we'd get to, and we could have our differences, but we do it in a way that didn't take each other down, but which got to the best solution.
Jamie Walvisch:I think that openness to criticism was a real strength of this and something that I really liked as well. And we can see that in the fact that we've included the commentaries in the book as well. So this is opening ourselves up obviously to external critique and someone to go, actually, I think what you're saying is completely wrong, which of course is nerve wracking, but I think is a great experience. I know from our chapter, you know, our commentator was critical of our proposal and it did make me think about, you know, whether things could have been done differently, how they could be improved for the future. And I think everybody did came to this with an open mind and a lack of defensiveness, which I think is a fabulous experience and really, you know, made the project so much more enjoyable for me than what often happens, not just in politics, but also in the academy where people are very defensive about their work and not willing to have that kind of open interchange of ideas that I think was really encouraging this project.
Kate Seear:And we're gonna hear about some of those tensions and debates and differences of opinion throughout the podcast series because we're going to invite some of those commentators back into the discussion to tell us about how they reflected on the contributions to the collection, what they took from them, what they liked, what they didn't like. As you said, Jamie, we co author a chapter together and our commentator professor Jenny Morgan, who's a very accomplished expert in feminist law reform, who's been doing this work for many decades, didn't like some aspects of our contribution, which, which was great because it was it was Thank you.
Jamie Walvisch:All was wrong.
Kate Seear:Was all very much in the spirit of trying to improve the work or thinking about whether there there would be or should be different priorities when it comes to doing feminist law reform. So that was that was one aspect of the collection that I like liked and that you'll hear about as the podcast unfolds. We've talked a lot about the book so far, and I should say that the book is out. And the book is open access, which means that the publisher has very kindly made the book freely available in its entirety. So in our show notes, we'll include details of how you can access the book, but you can go online, download, and read each and every chapter or just some of those chapters that are of interest to you if you like.
Kate Seear:But we're very grateful to our publisher, Routledge for making that possible. But let's turn to the podcast and and think about the format and structure of this podcast. Becky, it was your idea for us to get together and keep this conversation about feminist legislation and feminist law reform going. So who do you think might be interested in listening to this podcast, and what are they going to get out of sticking with us over the next few episodes?
Becky Batagol:A key audience for this podcast is those of you who have the power to change the law. So those who are in parliament, across the various parliaments in Australia and perhaps even internationally. But those of you who work for those who are in parliament, policymakers, those within government departments, and also those in law reform organizations such as some of the law reform commissions or royal commissions. We think that there are proposals for law reform here which are there and ready to go. They're well researched.
Becky Batagol:They're well evidence. They bring lived experience. They consider the impact on First Nations people. Everything that you as a politician or as a lawmaker or as a policymaker would need to do, it's there for you.
Kate Seear:And more broadly, I think the audience for this podcast could extend to people studying law or or even students of of politics, whether it's at university or in school. People who are interested in hearing more about how the process of of lawmaking actually works, the kind of nuts and bolts of how it's undertaken, all of the things that you need to take into account, and then how you actually go about writing legislation. It's it sounds like a dry topic in a sense, but it's not. It's actually a really rich and interesting process that requires you to think about as a, say, as a parliamentarian, who is it that you represent? What kinds of issues do you need to take into account?
Kate Seear:How do you ensure that the law is fair and transparent and doesn't produce new harms or other unintended consequences. And I think in that sense, both the book and the podcast series is, focused on this really important aspect of the democratic process that affects all of us, which is how the people we elect to represent us go about making law and how they can make laws that are more just.
Becky Batagol:And I I hope this podcast inspires academics in Australia and around the world to think about their work that they do and making sure that you don't you go beyond criticism and you think about what changes could actually be made and actually put those proposals there in writing. I also hope that others might take up feminist legislation projects around the world, perhaps other jurisdictions, perhaps it could be about treaties. There's a whole range of ways that we think our methods, our method of radical imagination could be used to instigate law reform for better gender justice. Kate, Jamie, and Heli, it's been great discussing our project and how we've worked together and our plans for this podcast. Thank you.
Kate Seear:Thanks, Becky.
Becky Batagol:Thank you, Kate Seear, professor of law at Deakin Law School, Jamie Walvisch, senior lecturer of law at the University of Western Australia, and doctor Heli Askola, associate professor at Monash University. My name is Becky Batagol. Over the next few episodes, you'll be hearing from us and from others who've been part of this project about the choices that they've made in reforming the law. This podcast has been funded by Monash University. Thanks to James Pattison from Miniature for producing this podcast.