Hi all, would be much appreciated if someone could read my legal essay below and provide some feedback and maybe some tips as well on components to remember in answering these types of questions or if i should just have notes on evidence as my solid thing instead of memorising it. The questions got given to us already and it is an assessment to prep us for prelims exams.
Question Three: Evaluate the effectiveness of the legal and non-legal responses in achieving justice for women in the Australian workforce (15 marks)
Gender should not be a factor in determining the worth of an individual, but women have suffered indirect discrimination in the workplace, sexual harassment and denial of equal opportunities. Historically, women’s inferiority was an attitude reflected in the laws and policies of Western societies, with gender segregation and men holding most if not all positions of dominance in employment. In spite of the many improvements such as domestic legislation, international conventions and trade unions and media campaigns that women have fought for and used to instigate change, there are still many areas that require constant vigilance and persistence in order for the workplace to keep evolving continuously to meet society’s needs. It is in this contemporary light that the non-legal and legal mechanisms in relation to achieving justice for women will be evaluated.
To begin with, the United Nations instrument is a mechanism which has made a major step towards rights against discrimination for women in the workplace. This is through the introduction of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), where 179 countries have ratified CEDAW, and it has been the cause of domestic legislation such as the Anti-Discrimination Act 1977 (Cth) (ADA) which was made to be consistent with the treaty. So as a direct result of CEDAW, issues regarding women’s rights have been recognised globally as before they were isolated issues. However, although this sounds highly effective in theory, the committee also demonstrates ineffectiveness as Australia’s reservation to paid maternity leave under the CEDAW meant that the federal government for many years resisted such a scheme. States can only choose to comply with or ignore their international obligations and usually act out of economic or political self-interest in determining their course of action. This leads to the infringement of individuals rights as those states that have signed the treaty have many reservations, which allow them to refuse to comply with certain parts of the treaty, providing economic hurdles and glass ceilings to women in the workplace. Admittedly, this is true for women who face indirect discrimination due to the costs of having children in long day care as highlighted by the Matilda’s childcare case, where Ms Heatherwick claimed that it was “unreasonable’ for the Federation to make her bear the full costs of childcare arrangements while she was on an overseas tour. Hence, this indicates the ineffectiveness of CEDAW as states choose for the ADA to not compulsorise all kinds of discrimination policies on every employer. Although, the committee can only continue to encourage states to review their current reservations and provide optional protocol to improve this, it does not guarantee extra rights or employer policies to change the glass ceiling. Therefore, the CEDAW is not able to achieve just outcomes as its it does not allow for a greater deal of enforceability due to limitations by states entering certain reservations.
Furthermore, another legal measure for the issue of sexual harassment women in the workplace is the Sex Discrimination Act 1984 (Cth) (SDA) which is overseen by the Australian Human Rights Commission. Overtime, the definition of sexual harassment has strengthened with the complainant only having to show that she or he reasonably felt offended, humilated or intimidated. The SDA as with the presumption of innocence in criminal matters, a person alleged to have committed an act of discrimination is presumed not to have done so until a court has heard the evidence on both sides and found in favour of the complainant. The right to equality before the law, whether you are the complainant or the alleged discriminator, is part of procedural fairness and an important principle of the rule of law. In the case of Poniatowska v Hickinbotham, the FCA awarded damages of $466,000 in favour of Ms Poniatowska for sexual harassment and subsequent discrimination she suffered in the workplace and on cyberspace, when she was unfairly dismissed following complaints that she had made. Although this case indicates the effectiveness of the legislation in leading to a more equitable outcome with compensation, it is limited in redressing grievances as the cost for the victim is not only economical but emotional, and justice is only achieved based on numerous complaints, which half the time is not taken seriously as the employers do not take sexual harassment training or policies surrounding these into account. In addition, the opportunity to engage in such behaviour has increased due to the wide use of new technologies creates new spaces for sexual harassment to occur, which indicates that more appropriate measures need to be put in place to provide greater protection of individuals rights and keep up with meeting women’s evolving needs for help. Thus, the legal response of the SDA proves to be ineffective as its reliance on complaints by women directly affected, rather than addressing discrimination at a systematic level, making just outcomes problematic.
Furthermore, non-legal responses such as the #MeToo campaign against the women issue of sexual assault and the attempts to raise public awareness is reflected in the role of the media. The media is seen to have an immense impact on the opinions and values of communities as it is the main source of news and political agenda. In 2017 October, the media campaign, #MeToo highlighted the potential for traditional and social media to work together to generate global interest in gender-based violence. In terms of resource efficiency, the use of media campaigns have been effective to a certain extent as it acts as informal justice and is a much cheaper and appropriate way to respond by online disclosure where survivors can recognise their own experiences and realise that they are not alone. Conversely, the media can also have an adverse effect upon the attitudes of the community as prolonged courage of unpacking the complexities of sexual violence may lead to desensitisation of values from the community. The language communicate anonymously on the media can also attribute to condoning more fear in victims and to no avail a practical outcome as law reform can only come about if recognised as an important issue, and if the media pressures governments for change and this has not actually done much in Australia except spread viral. It is an increasingly prominent issue, especially following global reactions to the #metoo movement, yet Australian workplaces are not adequately resourcing sexual harassment training, which should be the primary mechanism used to address this important issue for women. Hence, the role of the media as a non-legal response to sexual harassment is subjectively effective in raising awareness but is also limited in its ability to achieve justice through law reform.
Another mechanism of non-legal response to issues for women regarding the workplace are the role of trade unions in improving working and pay conditions. Previously in the past, trade unions were against the full participation in the workforce but in contemporary times, they have become strong advocates of women’s rights. When looking at the application of the rule of law, women are treated more equally and not discriminated against because of trade unions. As they are a broad and socio political base, their effectiveness of forming large unions to assert power and opinion ensures that members issues are supported and recognised. In particular, the Australian Council of Trade Unions (ACTU) has contributed to the principle of equal pay for work, improved childcare and universal superannuation and affirmative action regarding the equal opportunity legislation. On the contrary, there is little limitations regarding trade unions has although it has kept up with meeting women's needs and societal expectations in the push for 18 weeks paid parental leave, it still leaves the fundamental challenge of accessibility and resource efficiency. Major unions in Australia have a much lower percentage of women at the executive level than among the general membership and this proves some ineffectiveness as larger unions who are fully committed to the cause are required for the campaign to come off more strongly to the wider base. Nonetheless, trade unions as an informal measure have led to more equitable and positive outcomes than was possible in the past, arguing law and policies making it for women to have true choices as a norm. Therefore, trade unions have exhibited moderately effective outcomes in achieving justice through increased awareness by large numbers of women, advocating for equal working rights.
To summarise, legal and non-legal measures in dealing with issues for women in the workplace has benefits and downfalls. However, it can be noted that women have made substantial progress historically in many indicators through international instruments, domestic legislation, trade unions and media campaigns. Those laws and movements however are only part of the solution, it is not possible to legislate firmly held beliefs sometimes that can never be changed. Hence, improvement of women’s rights in society will be generational. If we are to prosper as a nation, we cannot continue to disenfranchise 50 percent of the population. So it is in everyone’s interest to make our society more just and fair.
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Topic: feedback needed on legal essay for in class task (Read 626 times)