Australian Feminist Judgments

This book brings together feminist academics and lawyers to present an impressive collection of alternative judgments in a series of Australian legal cases. By re-imagining original legal decisions through a feminist lens, the collection explores the possibilities, limits and implications of feminist approaches to legal decision-making. Each case is accompanied by a brief commentary that places it in legal and historical context and explains what the feminist rewriting does differently to the original case. The cases not only cover topics of long-standing interest to feminist scholars – such as family law, sexual offences and discrimination law – but also areas which have had less attention, including Indigenous sovereignty, constitutional law, immigration, taxation and environmental law. The collection contributes a distinctly Australian perspective to the growing international literature investigating the role of feminist legal theory in judicial decision-making.

1 Introduction: Righting Australian Law
Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter
2 Reflections on Rewriting the Law
Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter
Part I Public Law Constitutional Law
3 Kartinyeri v The Commonwealth [1998] HCA
Commentary: Kathy Bowrey
First Nations Stories, Grandmother's Law: Too Many Stories to Tell: Irene Watson
4 R v Pearson; Ex parte Sipka [1983] HCA 6
Feminism and the Franchise: Elisa Arcioni
Judgment: Kim Rubenstein
5 Dietrich v R [1992] HCA
Commentary: Margaret Davies
Judgment: Reg Graycar and Jenny Morgan
Tax Law
6 Lodge v Federal Commissioner of Taxation [1972] HCA
Commentary: Ann O'Connell
Judgment: Kerrie Sadiq
Immigration Law
7 Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Applicants S134/2002 [2003] HCA 1
Roqia's Story: Refugees and Natural Justice in the Court of Public Opinion: Mary Crock
Judgment: Charlotte Steer
8 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[2003] HCA
Commentary: Wayne Morgan
Judgment: Nan Seuffert
Environmental Law
9 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA
Addressing Climate Change Inequities: The Contribution of a Feminist Judgment: Jacqueline Peel
Judgment: Lee Godden
Part II Private Law
Torts
10 Cattanach v Melchior [2003] HCA
The Economic Value of Human Relationships: Cattanach v Melchior Revisited: Isabel Karpin
Judgment: Kylie Burns
Consumer Protection
11 ACCC v Keshow [2005] FCA
Unconscionability, Education and Indigenous Women: Bronwyn Naylor
Judgment: Heron Loban
Equity
12 Louth v Diprose [1992] HCA 61
Give and Take: Unconscionability and the Pervasiveness of Gender Stereotypes: Paula Baron
Judgment: Francesca Bartlett
13 Trustees of the Property of John Daniel Cummins, a Bankrupt v Cummins [2006] HCA 6
Formal Equality and Third Party Interests in the Family Home: Francesca Bartlett
Judgment: Lisa Sarmas
Part III Crime and Evidence
Criminal Law
14 Parker v R [1963] HCA 14
Reconsidering Precedent: Heather Douglas
Judgment: Adrian Howe
15 Taikato v R [1996] HCA 28
A Well-founded Fear? Giving Context to Self-defence: Julie Stubbs
Judgment: Penny Crofts and Isabella Alexander
16 PGA v R [2012] HCA 21
Admitting Legal Wrongs: Ngaire Naffine
Judgment: Wendy Larcombe and Mary Heath
Evidence
17 RPS v R [2000] HCA 3
Commentary: Katherine Biber
Judgment: Helen O'Sullivan
18 Phillips v R [2006] HCA 4
Locating Consent in Similar-Fact Cases: Mehera San Roque
Judgment: Annie Cossins
Sentencing
19 R v Webster [1990] NSWSC 70012/90
Truth in Sentencing: The Narration of Judgment: Kirsty Duncanson
Judgment: Honni van Rijswijk and Lesley Townsley
20 R v Middendorp [2010] VSC 202
Defensive Homicide: JaneMaree Maher
Judgment: Kate Fitz-Gibbon, Danielle Tyson and Jude McCulloch
21 R v Morgan [2010] VSCA 15
Intersectionality and Indigenous Sentencing Courts: Heather Douglas
Judgment: Elena Marchetti and Janet Ransley
Part IV Interpreting Equality
Family Law
22 U v U [2002] HCA 36
Commentary: Rachael Field
Judgment: Jonathan Crowe
23 Goode and Goode [2006] FamCA 1
The Practice of Feminist Judgment in Family Law: Ann Genovese
Judgment: Zoe Rathus and Renata Alexander
Discrimination Law
24 JM v QFG and GK [1998] QCA
Commentary: Paula Gerber
Judgment: Anita Stuhmcke
25 McLeod v Power [2003] FMCA 2
Commentary: Katharine Gelber
Judgment: Jennifer Nielsen
26 The State of New South Wales v Amery [2006] HCA 14
The Indirection of Sex Discrimination: Margaret Thornton
Judgment: Beth Gaze
Treaty Law
27 In the matter of Djappari (Re Tuckiar) [2035] FNCA 1
Commentary: Thalia Anthony
Judgment: Nicole Watson

“Australian Feminist Judgments is a valuable extension of the emerging feminist judgement-writing genre.” –  Heather Roberts, Legal Studies, Vol 35(3)

“The book is a fascinating and refreshing approach to judging. It will no doubt find a ready place in Law Schools, but more widely among the judiciary and the practising profession.” –  Greg Reinhardt, Journal of Judicial Administration, 2015

“Australian Feminist Judgemenst: Righting and Rewriting Law enlivens the reader's imagination about the real transformative potential of feminist legal reasoning.” –  KCasey McLoughlin, Alternative Law Journal, 40:2 2015

“...a marvellous sweep through all aspects of contemporary Australian judgments...You will never look at a judgment the same way again...” –  Jennifer Giles, Workplace Review, 6:32

“Australian Feminist Judgments ably and engagingly achieves its stated objective...the editors' innovations from the pre-existing models of feminist judgments...ensures that Australian Feminist Judgments provides rich material through which to consider feminist judging's nature, purpose and impact.” –  Heather Roberts and Laura Sweeney, Sydney Law Review

“The judgments are eloquent, well-reasoned, realistic, and above all, interesting... Australian Feminist Judgments: Righting and Rewriting Law will appeal to a wide audience - particularly judges, academics, legal practitioners, law students and people who are interested in feminism or legal jurisprudence.” –  Betheli O'Carroll, Griffith Law Review

“Australian Feminist Judgments is academic but accessible, and it is sure to spark many debates on the role of feminist jurisprudence...It reminds us that change within existing legal frameworks is possible.” –  Caroline Jones, Portia