Dr Francesca Bartlett joined the TCB School of Law in 2006 and lectures in The Legal Profession and Contract Law. Her research includes, notably, the Australian Feminist Judgments Project which was published in 2014. The project involves a group of feminist academics, lawyers and activists who have agreed to write alternative judgments in a series of Australian legal cases. In this interview, Francesca explains the difficulties in re-writing judgments, the purpose of the project and the ways in which judgments were re-written with a feminist perspective. The project is administered by the University of Queensland.
Prianka: Let’s start off with a little introduction. I came across Australian Feminist Judgments Project whilst reading Louth v Diprose and being appalled at the result. Can you tell me a bit about the process with writing alternative judgments?
Francesca: The process was different for all of the different judgement writers. I think we had about 24 judgement writers, academics from around the country. Their motivations for why they wanted to write particular judgments varied. For instance, my motivation was that I didn’t like a particular notorious case, but I also hated teaching it so I thought it would be interesting to re-think it. So instead of me just saying that the High Court ‘got it wrong’, I could actually have a go at seeing if there was a way for the High Court to do it right.
Other people really wanted to change the law, so for example some of the Family Court judgments were saying that current interpretation of the Statutory Law was really narrow and it needn’t be, so the motivation for many of the contributors was law reform. Interestingly, we found (as the people running the project) in the end that the feminist academics who usually write ‘out-there’ articles wrote fairly conservative judgments because they had to conform to the system. We were very clear with our writers that their judgments had to use writing of the era and that they they couldn’t slip in academic work – you had to really pretend that you were a judge. As you can imagine, this was really difficult for some of the writers, so they had a range of ways of approaching their writing. We ended up with many different ways of helping our writers re-think and re-write the law.
We had the project published as a book but we can’t put that online, but we have created a website (see below) that is sponsored by the Law School. We’ve done mapping (battered woman syndrome, sexually transmitted debt etc) and we’ve tried to use them in academic ways. These were exercises where a researcher would start with academic commentary and trace cases through the commentary. What they were looking for was the impact of feminist thought in the law and so-on. These are large areas of work that can be at anyone’s disposal – I urge all students to dip into this! (See below for links)
In the mapping section on the website, we’ve also collected many existing judgments that we do like, not just judgments relating to feminism but also ones that span broader fairness or equality issues, such as LGBTI discrimination and the like. All this information is on the website, and could be useful for a student doing a research project.
Prianka: I’ve found that when I read modern cases not always, but sometimes, the outcome for women is much better than it would’ve been maybe 100 years ago. I read Sidhu v Van Dyke for my Trusts Assignment and I can imagine the judgment would have been scathing to a mistress if it had been written some years ago.
Francesca: You’re absolutely right. Another thing that we did during the project was interview about 40 different judges all around the country who we identified as ‘feminist judges’. Keep in mind that a lot of them did not like that description, but they talked to us about how they went about their judgments, what their views were and so on, and a lot of them said that particularly having women, and women that really care about women, on the court really changes the atmosphere and has a significant affect on their colleagues and how the court works. So things are starting to change, even if there isn’t a female decision-maker. That’s not to say that judgments have been entirely transformed from when courts where male-dominated, but it is getting there slowly.
Part of what we were trying to do was think about the transformation and what more can be done and how much avenue there is to be expressly concerned about these issues.
One of the people we worked with, a woman called Rosemary Hunter (a bit of a guru in the feminist academic world) is of the view that you can bring about express feminism in the way that you go about judging, and has written a lot about that aspect of it.
Prianka: I’ll admit, especially in my first year of studying law, I didn’t give much thought to feminism (or lack thereof) in judgments unless I was reading a judgment that really stood out to me as being blatantly discriminatory.
Francesca: One of the judgments that has been re-written is about re-marriage prospects, and how the judges would literally say, for example, ‘is this woman attractive’ or ‘is she likely to get re-married’ and then reduce her damages if it was likely that she’d get a husband. However, it was part of the law at the time and it is difficult to shift that sort of law. It has shifted now, but at the time it was very difficult for something like this to shift organically.
There’s still plenty of this kicking around, however. Like in Australia, it wasn’t until 1980 that a woman could open their own bank account without her husband signing off or if she was single, she had to sign something saying she was infertile. The 80s doesn’t seem like a very long time ago – the research that we conducted whilst doing the project was really interesting (and at times a bit worrying).
Prianka: Are there many similar projects world-wide? I know of one in the UK.
Francesca: It actually started with a group of women from Canada – they all wanted to write about the way that the court had interpreted a particular article of their bill of rights because they felt that the courts had been reading that article down drastically, and they wanted to re-write that group of judgments. Rosemary Hunter and a few other English academics then adopted the idea and expanded it quite a lot.
The UK’s project has a website as well, but they haven’t updated the website in a while but they only had Court of Appeal decisions and above. They were very creative with how they made their decisions and produced a book as well, but that’s not available online.
Basically, we thought it would be a good idea to do it in Australia too. There’s a New Zealand project, and an American project is currently being worked on. There’s also an international law project being worked on, which is kind of interesting in its difference. I don’t know how far along it is in terms of resources, but what’s really different in that project is that they deal with a lot of code countries, where there is no reasoning and only statute. It’s a really different and interesting way of judicial reasoning.
Our project is essentially finished, so we’re always happy to come and talk about it or help people access it in some way. And all the resources that we have can be used as fodder for students completing research projects on a range of different topics.
Further details of the Australian Feminist Judgments Project can be found at https://law.uq.edu.au/the-australian-feminist-judgments-project . The website is extensive and contains many resources for anyone interested in the project. Francesca encourages anyone keen to make good use of everything available!