Get 2 days of premium access
Class Notes (1,000,000)
AUS (30,000)
UWA (1,000)
LAWS (40)
Lecture 10

LAWS1111 Lecture Notes - Lecture 10: Social Change, Distilled Beverage, Susan Crennan


Department
Law and Society
Course Code
LAWS1111
Professor
Jade Lindley
Lecture
10

This preview shows pages 1-3. to view the full 28 pages of the document.
Lecture Outline
1. Law and Social Change
What is social change?
i.
Law and social change
ii.
Consensus Models and Conflict Models
iii.
Law’s limits
iv.
Effectiveness of laws
v.
2. Example 1: Same Sex Marriage
Path to Legal Recognition
i.
Legal issues in Australia
ii.
Legal change
iii.
3. Example 2: Working Parents
Traditional v modern views
i.
Legal support?
ii.
Australian compared: International approaches
iii.
Law and Social Change
1.
What is social change?
i)
‘[A]ny nonrepetitive alteration in the established modes of behaviour in
society’: Friedman and Ladinsky (1967)
Social change is held to occur only when changes in social structure—
patterns of social relations, established social norms and social roles—
change.
Examples: minority group’s rights (to drive, earn, vote etc.); traffic
rules especially drink driving; homosexuality (sodomy was a crime).
Types of Social Change
Grossman and Grossman (1971) understand social change in three levels:
Patterns of individual behaviour;1.
Group norms, or patterns of relations of individuals or groups to each
other or to common objects as the political, economic or social system;
and,
2.
Society’s basic values.3.
These different types of change shade into each other and are interrelated in
complex ways.
Relevant Factors
Rate of social change is dependent on (Cotterrell, 1992):
Technological progress
§
Natural environment
§
Political organisation and consciousness
§
Degree of cultural unity
§
Interaction with other societies
§
Example: Same sex marriage
(iii) Law and Social Change
Can law influence society/culture?
We act as if it can:
Carbon tax
§
Anti-discrimination law
§
(iii) Consensus vs Conflict Models
Different theoretical models try to explain how law reflects/relates to society:
Consensus model
Society is an organic system that rests on consensus
§
Solidarity based on a common interdependence (Emile Durkheim)
§
1.
Conflit model
Society is built on fundamental conflicts. The State and the law are not
neutral. Some groups hold considerable power which they deploy to
ensure their goals are achieved:
§
Power elites
§
Interest groups
§
Family dynasties
§
2.
(iv) Law's Limits
Are there limits to law as a tool for social change?
Are laws too ambitious?
‘[L]aws are often ineffective, doomed to stultification almost at birth, doomed by
the over- ambitions of the legislator and the under-provision of the necessary
requirements for an effective law, such as adequate preliminary survey,
communication, acceptance, and enforcement machinery.’
Allott (1980)
Are there limits to law as a tool for social change?
Are laws too ambitious?
Are laws too vague to have any real impact?
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
(a) Inside vs Outside
Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and Intersex Status) Act 2013 (Cth) :-
‘The purpose of the Bill is to foster a more inclusive society by prohibiting
unlawful discrimination against LGBTI people and promoting attitudinal
change in Australia.’
Is that the role of law? To promote attitudinal change?
Law & Private Attitudes
Yehezkel Dror (1959)
Drives practices and attitudes underground
§
Example: US Marijuana Tax – believed to be evil.
§
Berger (1952)
Law can influence external acts that foster and reinforce private
attitudes
§
Example: marriage (in)equality prior to 2018
§
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
There are interests and demands which cannot be safeguarded or
satisfied through law.
2.
(b) Beyond the Scope of Law
Human rights are ‘a matter of attitudes and relationships’, rather than something
to be enforced by law.
‘[W]hen people resort to the law to protect their rights, they typically do so only
because their rights have already been infringed.It is a trap to depend too much
upon law for the enjoyment of rights, or to imagine that more laws, different kinds
of laws, or a greater resort to law, can be a substitute for attitudes and
relationships between people, and it is worth remembering Cicero’s words, ‘the
more law, the less justice’. - Malcolm Fraser
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
There are interests and demands which cannot be safeguarded or
satisfied through law.
2.
Laws do not enforce themselves.3.
(c) Enforcement
Becker's Labelling Theory
(v) Effectiveness of Laws
US Prohibition in 1920s and 1930s
18th amendment to the US Constitution; National Prohibition Act 1919
Creation of offences, with serious sanctions, for owning, selling,
manufacturing alcohol.
750,000 people arrested between 1920-1932.
§
Fines and penalties totalling $75,000,000 imposed and $205,000,000
worth of property seized.
§
In 1930, 282,122 illicit distilleries and apparatuses, and 40 million
gallons of distilled spirits were seized.
§
Effectiveness?
Little effect on alcohol consumption.
Law repealed in 1933.
Factors in regulatory failure:
Enforcement was half-hearted;
§
Police corruption was rife;
§
Police lacked co-ordination and resources;
§
Congress refused to allocate money for enforcement; and,
§
Seen as a religious, rural population attempting to enforce their lifestyle
on urban populations.
§
Effectiveness of Laws
Evans (1965) prerequisites for effective legislation:
Source is authoritative and prestigious;1.
Rationale is compatible and continuous with established cultural and
legal principles;
2.
Pragmatic models for compliance;3.
Short transition time to prevent resistance growing;4.
Enforcement agents are committed;5.
Contains both positive and negative sanctions; and6.
Incentive to use the legislation.
Example: Paid Parental Leave Act 2010 (Cth)
The objects ‘signal that taking time out of the paid workforce to
care for a child is part of the usual course of life and work for both
parents; and [to] promote equality between men and women and
balance between work and family life.’
7.
2. Same Sex Marriage
(i) Recognition of Homosexuality
Kees Waaldijk studied legal change around homosexuality across European
countries.
Argues that progress generally follows a fairly predictable pattern:
Total ban on homosexuality.
1.
Decriminalisation of gay sex.
2.
Equalisation of age of consent.
3.
Anti-discrimination legislation.
4.
Recognition of relationships.
5.
Recognition of parenthood.
6.
Overview of State/Territory Changes In Western Australia
Homosexual sex decriminalized in 1989.
§
Mass law reform in the Acts Amendment (Lesbian and Gay Law
Reform) Act 2002 (WA), re issues such as:
Anti-discrimination
Superannuation
Access to reproductive technology
Lowering age of consent from 21 to 16 years.
Recognition of de facto relationships.
§
Same Sex Marriage Bill 2013 (WA)
Concern About Change?
Law Reform (Decriminalization of Sodomy) Act 1989 (WA), preamble-
Overview of Federal Changes 2008
Same-Sex Relationships (Equal Treatment in Commonwealth Laws—
General Law Reform) Act 2008 (Cth); Same-Sex Relationships (Equal
Treatment in Commonwealth Laws-Superannuation) Act 2008 (Cth)
Recognition of homosexual de facto relationships.
Eliminated discrimination in range of areas, including taxation,
superannuation, social security, immigration and citizenship.
2013
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Act 2013 (Cth).
Which occurred first?
Changes at the state level or Federal level?
Federal Dimension to Legal Change on Social Issues
The Cth followed WA and the other states for:
The recognition of same sex defacto relationships; and
Discrimination legislation (Sexual Orientation, Gender Identity and
Intersex Status).
Significance of state leadership to national reform on social issues
(iii) The legal issues in Australia
Who has the power to makes laws re marriage in Australia?
The Commonwealth Constitution:
S 51 The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the
Commonwealth with respect to:
(xxi) marriage;
Is this a concurrent or exclusive power?
A bit of history…
Before Federation, marriage and divorce were regulated by colonial statute.
On Federation, the power to legislate for marriage was included as a
concurrent power in s51 of the Constitution;
After Federation, marriage continued to be the province of the states;
In the mid-1900s, there were 9 separate legislative arrangements
operating in Australia; and
Lack of consistency.
Push for unification of the marriage laws
In 1961, The Marriage Act 1961 (Cth) was passed by the Federal Parliament
and received Royal Assent on 6th May 1961 – first federal law on marriage.
Significance of Currency
States can legislate 'marriage', however…
S109 of the Constitution:
When a law of a State is inconsistent with a law of the Commonwealth, the latter
shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Definition of 'Marriage'
Before 2004, there was NO definition of marriage in the Marriage Act 1961 (Cth).
Definition introduced by the Marriage Amendment Bill 2004 (Cth), a product
of the Howard Liberal government. It was supported by Labor, but objected
to by the Greens.
Previously, this definition had been a common law principle and part of
some celebrants’ marriage solemnisation.
§
That amended the definition of ‘marriage’ in the Marriage Act 1961 (Cth),
S5(1) to be:
marriage means the union of a man and a woman to the exclusion of
all others, voluntarily entered into for life.’
§
Marriage Amendment Bill 2004
Second Reading Speech (Philip Ruddock):
‘It is an important measure that I now introduce. The bill is necessary because
there is significant community concern about the possible erosion of the
institution of marriage. The parliament has an opportunity to act quickly to allay
these concerns. The government has consistently reiterated the fundamental
importance of the place of marriage in our society. It is a central and fundamental
institution. It is vital to the stability of our society and provides the best
environment for the raising of children. The government has decided to take steps
to reinforce the basis of this fundamental institution…’
Avoiding s109 Inconsistency
To define “same sex marriage” to avoid inconsistency with “marriage” as
defined by the Marriage Act 1961 (Cth)
Same Sex Marriage Bill 2013 (WA):
same-sex marriage means the lawful union of 2 people of the
same sex to the exclusion of all others, voluntarily entered into for
life;
§
What happened in the ACT?
Marriage Equality (Same Sex) Act 2013 (ACT)
22 November 2003 passed by 9-8 votes in the Legislative Assembly
http://www.canberratimes.com.au/act-news/act-passes- same-sex-marriage-
bill-20131022-2vy5o.html
Marriage means
The union of 2 people of the same sex to the exclusion of all
others, voluntarily entered into for life;
Does not include a marriage within the meaning of the
Marriage Act 1961 (Cth)
"Marriage" not immutable
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ
[16] The status of marriage, the social institution what that status reflects, and the
rights and obligations which attach to that status never have been, and are not
now, immutable. Section 51(xxi) should not be construed as conferring legislative
power on the federal parliament with respect to..[marriage as it stood] at
federation’
(iii) Legal Change
However…
Changing social definition of ‘marriage’-
In the 1600s, and up until the 1960s, various US laws did not recognise
marriages between person of different races;
In the 1700s, British law did not recognise marriages between
Catholics and Anglicans;
In the 1800s, NSW law did not recognise marriages between people
from different religious denominations;
No-fault divorce in Australia was only introduced in 1975; and
Same sex marriage in 2017.
Working Parents3.
(i) Traditional v Modern Views
What is the reality?
Women and girls make up just over half (50.7 per cent) of the Australian
population.
While women comprise roughly 47 per cent of all employees in Australia but
average $251.20 less than men each week (full-time adult ordinary
earnings -national gender “pay gap” is 15.3 per cent stuck between 15 and
19 per cent for 20 years)
Australian women account for 68% of primary carers for older people and
people with disability.
95% of primary parental leave is taken by women and women spend almost
three times as much time taking care of children each day, compared to
men.
In 2017, Australia was ranked 35th on a global index measuring gender
equality, slipping from a high point of 15th in 2006.
(ii) Legal Support?
Adequate and positive:
Workplace Gender Equality Act 2012 (Cth)
Sex Discrimination Act 1984 (Cth)
Paid Parental Leave Act 2010 (Cth)
…but are they fundamentally discriminative?
During the Howard administration in Australia, there was a strong message
through Cth policy to discourage labour force participation of mothers of
young children, with the exception of sole parents.
“Family leave with generous income replacement and incentives for each
parent to use the leave can be highly positive for gender equality, for
example, while extended, unpaid leave has the potential to undermine
women’s equality both at work and in the home (Morgan and Zippel 2003).”
(iii) Australia compared: International Approaches
European and in particular, Scandinavian countries are better at normalising
the dual breadwinner family concept.
The lack of gender equality in the Australian workplace contributes to the
declining birth rate (Brennan 2006).
Unlike other parts of the world, there is no mandatory requirements for
parents to enrol their child in early learning childcare for children below-
school age, however education is compulsory for children in the year in
which the child reaches the age of 6 years and 6 months in Western
Australia.
Qualifications for Australian childcare workers meet or exceed UNICEF
requirements - UNICEF’s 6th benchmark is that 50% of staff require tertiary
education (Diploma/Certificate/Bachelor).
Lecture
Monday, 14 May 2018
11:33 pm

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

Lecture Outline
1. Law and Social Change
What is social change?
i.
Law and social change
ii.
Consensus Models and Conflict Models
iii.
Law’s limits
iv.
Effectiveness of laws
v.
2. Example 1: Same Sex Marriage
Path to Legal Recognition
i.
Legal issues in Australia
ii.
Legal change
iii.
3. Example 2: Working Parents
Traditional v modern views
i.
Legal support?
ii.
Australian compared: International approaches
iii.
Law and Social Change
1.
What is social change?
i)
‘[A]ny nonrepetitive alteration in the established modes of behaviour in
society’: Friedman and Ladinsky (1967)
Social change is held to occur only when changes in social structure—
patterns of social relations, established social norms and social roles—
change.
Examples: minority group’s rights (to drive, earn, vote etc.); traffic
rules especially drink driving; homosexuality (sodomy was a crime).
Types of Social Change
Grossman and Grossman (1971) understand social change in three levels:
Patterns of individual behaviour;1.
Group norms, or patterns of relations of individuals or groups to each
other or to common objects as the political, economic or social system;
and,
2.
Society’s basic values.3.
These different types of change shade into each other and are interrelated in
complex ways.
Relevant Factors
Rate of social change is dependent on (Cotterrell, 1992):
Technological progress
§
Natural environment
§
Political organisation and consciousness
§
Degree of cultural unity
§
Interaction with other societies
§
Example: Same sex marriage
(iii) Law and Social Change
Can law influence society/culture?
We act as if it can:
Carbon tax
§
Anti-discrimination law
§
(iii) Consensus vs Conflict Models
Different theoretical models try to explain how law reflects/relates to society:
Consensus model
Society is an organic system that rests on consensus
§
Solidarity based on a common interdependence (Emile Durkheim)
§
1.
Conflit model
Society is built on fundamental conflicts. The State and the law are not
neutral. Some groups hold considerable power which they deploy to
ensure their goals are achieved:
§
Power elites
§
Interest groups
§
Family dynasties
§
2.
(iv) Law's Limits
Are there limits to law as a tool for social change?
Are laws too ambitious?
‘[L]aws are often ineffective, doomed to stultification almost at birth, doomed by
the over- ambitions of the legislator and the under-provision of the necessary
requirements for an effective law, such as adequate preliminary survey,
communication, acceptance, and enforcement machinery.’
Allott (1980)
Are there limits to law as a tool for social change?
Are laws too ambitious?
Are laws too vague to have any real impact?
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
(a) Inside vs Outside
Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and Intersex Status) Act 2013 (Cth) :-
‘The purpose of the Bill is to foster a more inclusive society by prohibiting
unlawful discrimination against LGBTI people and promoting attitudinal
change in Australia.’
Is that the role of law? To promote attitudinal change?
Law & Private Attitudes
Yehezkel Dror (1959)
Drives practices and attitudes underground
§
Example: US Marijuana Tax – believed to be evil.
§
Berger (1952)
Law can influence external acts that foster and reinforce private
attitudes
§
Example: marriage (in)equality prior to 2018
§
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
There are interests and demands which cannot be safeguarded or
satisfied through law.
2.
(b) Beyond the Scope of Law
Human rights are ‘a matter of attitudes and relationships’, rather than something
to be enforced by law.
‘[W]hen people resort to the law to protect their rights, they typically do so only
because their rights have already been infringed.It is a trap to depend too much
upon law for the enjoyment of rights, or to imagine that more laws, different kinds
of laws, or a greater resort to law, can be a substitute for attitudes and
relationships between people, and it is worth remembering Cicero’s words, ‘the
more law, the less justice’. - Malcolm Fraser
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
There are interests and demands which cannot be safeguarded or
satisfied through law.
2.
Laws do not enforce themselves.3.
(c) Enforcement
Becker's Labelling Theory
(v) Effectiveness of Laws
US Prohibition in 1920s and 1930s
18th amendment to the US Constitution; National Prohibition Act 1919
Creation of offences, with serious sanctions, for owning, selling,
manufacturing alcohol.
750,000 people arrested between 1920-1932.
§
Fines and penalties totalling $75,000,000 imposed and $205,000,000
worth of property seized.
§
In 1930, 282,122 illicit distilleries and apparatuses, and 40 million
gallons of distilled spirits were seized.
§
Effectiveness?
Little effect on alcohol consumption.
Law repealed in 1933.
Factors in regulatory failure:
Enforcement was half-hearted;
§
Police corruption was rife;
§
Police lacked co-ordination and resources;
§
Congress refused to allocate money for enforcement; and,
§
Seen as a religious, rural population attempting to enforce their lifestyle
on urban populations.
§
Effectiveness of Laws
Evans (1965) prerequisites for effective legislation:
Source is authoritative and prestigious;1.
Rationale is compatible and continuous with established cultural and
legal principles;
2.
Pragmatic models for compliance;3.
Short transition time to prevent resistance growing;4.
Enforcement agents are committed;5.
Contains both positive and negative sanctions; and6.
Incentive to use the legislation.
Example: Paid Parental Leave Act 2010 (Cth)
The objects ‘signal that taking time out of the paid workforce to
care for a child is part of the usual course of life and work for both
parents; and [to] promote equality between men and women and
balance between work and family life.’
7.
2. Same Sex Marriage
(i) Recognition of Homosexuality
Kees Waaldijk studied legal change around homosexuality across European
countries.
Argues that progress generally follows a fairly predictable pattern:
Total ban on homosexuality.
1.
Decriminalisation of gay sex.
2.
Equalisation of age of consent.
3.
Anti-discrimination legislation.
4.
Recognition of relationships.
5.
Recognition of parenthood.
6.
Overview of State/Territory Changes In Western Australia
Homosexual sex decriminalized in 1989.
§
Mass law reform in the Acts Amendment (Lesbian and Gay Law
Reform) Act 2002 (WA), re issues such as:
Anti-discrimination
Superannuation
Access to reproductive technology
Lowering age of consent from 21 to 16 years.
Recognition of de facto relationships.
§
Same Sex Marriage Bill 2013 (WA)
Concern About Change?
Law Reform (Decriminalization of Sodomy) Act 1989 (WA), preamble-
Overview of Federal Changes 2008
Same-Sex Relationships (Equal Treatment in Commonwealth Laws—
General Law Reform) Act 2008 (Cth); Same-Sex Relationships (Equal
Treatment in Commonwealth Laws-Superannuation) Act 2008 (Cth)
Recognition of homosexual de facto relationships.
Eliminated discrimination in range of areas, including taxation,
superannuation, social security, immigration and citizenship.
2013
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Act 2013 (Cth).
Which occurred first?
Changes at the state level or Federal level?
Federal Dimension to Legal Change on Social Issues
The Cth followed WA and the other states for:
The recognition of same sex defacto relationships; and
Discrimination legislation (Sexual Orientation, Gender Identity and
Intersex Status).
Significance of state leadership to national reform on social issues
(iii) The legal issues in Australia
Who has the power to makes laws re marriage in Australia?
The Commonwealth Constitution:
S 51 The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the
Commonwealth with respect to:
(xxi) marriage;
Is this a concurrent or exclusive power?
A bit of history…
Before Federation, marriage and divorce were regulated by colonial statute.
On Federation, the power to legislate for marriage was included as a
concurrent power in s51 of the Constitution;
After Federation, marriage continued to be the province of the states;
In the mid-1900s, there were 9 separate legislative arrangements
operating in Australia; and
Lack of consistency.
Push for unification of the marriage laws
In 1961, The Marriage Act 1961 (Cth) was passed by the Federal Parliament
and received Royal Assent on 6th May 1961 – first federal law on marriage.
Significance of Currency
States can legislate 'marriage', however…
S109 of the Constitution:
When a law of a State is inconsistent with a law of the Commonwealth, the latter
shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Definition of 'Marriage'
Before 2004, there was NO definition of marriage in the Marriage Act 1961 (Cth).
Definition introduced by the Marriage Amendment Bill 2004 (Cth), a product
of the Howard Liberal government. It was supported by Labor, but objected
to by the Greens.
Previously, this definition had been a common law principle and part of
some celebrants’ marriage solemnisation.
§
That amended the definition of ‘marriage’ in the Marriage Act 1961 (Cth),
S5(1) to be:
marriage means the union of a man and a woman to the exclusion of
all others, voluntarily entered into for life.’
§
Marriage Amendment Bill 2004
Second Reading Speech (Philip Ruddock):
‘It is an important measure that I now introduce. The bill is necessary because
there is significant community concern about the possible erosion of the
institution of marriage. The parliament has an opportunity to act quickly to allay
these concerns. The government has consistently reiterated the fundamental
importance of the place of marriage in our society. It is a central and fundamental
institution. It is vital to the stability of our society and provides the best
environment for the raising of children. The government has decided to take steps
to reinforce the basis of this fundamental institution…’
Avoiding s109 Inconsistency
To define “same sex marriage” to avoid inconsistency with “marriage” as
defined by the Marriage Act 1961 (Cth)
Same Sex Marriage Bill 2013 (WA):
same-sex marriage means the lawful union of 2 people of the
same sex to the exclusion of all others, voluntarily entered into for
life;
§
What happened in the ACT?
Marriage Equality (Same Sex) Act 2013 (ACT)
22 November 2003 passed by 9-8 votes in the Legislative Assembly
http://www.canberratimes.com.au/act-news/act-passes- same-sex-marriage-
bill-20131022-2vy5o.html
Marriage means
The union of 2 people of the same sex to the exclusion of all
others, voluntarily entered into for life;
Does not include a marriage within the meaning of the
Marriage Act 1961 (Cth)
"Marriage" not immutable
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ
[16] The status of marriage, the social institution what that status reflects, and the
rights and obligations which attach to that status never have been, and are not
now, immutable. Section 51(xxi) should not be construed as conferring legislative
power on the federal parliament with respect to..[marriage as it stood] at
federation’
(iii) Legal Change
However…
Changing social definition of ‘marriage’-
In the 1600s, and up until the 1960s, various US laws did not recognise
marriages between person of different races;
In the 1700s, British law did not recognise marriages between
Catholics and Anglicans;
In the 1800s, NSW law did not recognise marriages between people
from different religious denominations;
No-fault divorce in Australia was only introduced in 1975; and
Same sex marriage in 2017.
Working Parents3.
(i) Traditional v Modern Views
What is the reality?
Women and girls make up just over half (50.7 per cent) of the Australian
population.
While women comprise roughly 47 per cent of all employees in Australia but
average $251.20 less than men each week (full-time adult ordinary
earnings -national gender “pay gap” is 15.3 per cent stuck between 15 and
19 per cent for 20 years)
Australian women account for 68% of primary carers for older people and
people with disability.
95% of primary parental leave is taken by women and women spend almost
three times as much time taking care of children each day, compared to
men.
In 2017, Australia was ranked 35th on a global index measuring gender
equality, slipping from a high point of 15th in 2006.
(ii) Legal Support?
Adequate and positive:
Workplace Gender Equality Act 2012 (Cth)
Sex Discrimination Act 1984 (Cth)
Paid Parental Leave Act 2010 (Cth)
…but are they fundamentally discriminative?
During the Howard administration in Australia, there was a strong message
through Cth policy to discourage labour force participation of mothers of
young children, with the exception of sole parents.
“Family leave with generous income replacement and incentives for each
parent to use the leave can be highly positive for gender equality, for
example, while extended, unpaid leave has the potential to undermine
women’s equality both at work and in the home (Morgan and Zippel 2003).”
(iii) Australia compared: International Approaches
European and in particular, Scandinavian countries are better at normalising
the dual breadwinner family concept.
The lack of gender equality in the Australian workplace contributes to the
declining birth rate (Brennan 2006).
Unlike other parts of the world, there is no mandatory requirements for
parents to enrol their child in early learning childcare for children below-
school age, however education is compulsory for children in the year in
which the child reaches the age of 6 years and 6 months in Western
Australia.
Qualifications for Australian childcare workers meet or exceed UNICEF
requirements - UNICEF’s 6th benchmark is that 50% of staff require tertiary
education (Diploma/Certificate/Bachelor).
Lecture
Monday, 14 May 2018
11:33 pm

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

Lecture Outline
1. Law and Social Change
What is social change?
i.
Law and social change
ii.
Consensus Models and Conflict Models
iii.
Law’s limits
iv.
Effectiveness of laws
v.
2. Example 1: Same Sex Marriage
Path to Legal Recognition
i.
Legal issues in Australia
ii.
Legal change
iii.
3. Example 2: Working Parents
Traditional v modern views
i.
Legal support?
ii.
Australian compared: International approaches
iii.
Law and Social Change1.
What is social change?i)
‘[A]ny nonrepetitive alteration in the established modes of behaviour in
society’: Friedman and Ladinsky (1967)
Social change is held to occur only when changes in social structure—
patterns of social relations, established social norms and social roles—
change.
Examples: minority group’s rights (to drive, earn, vote etc.); traffic
rules especially drink driving; homosexuality (sodomy was a crime).
Types of Social Change
Grossman and Grossman (1971) understand social change in three levels:
Patterns of individual behaviour;
1.
Group norms, or patterns of relations of individuals or groups to each
other or to common objects as the political, economic or social system;
and,
2.
Society’s basic values.
3.
These different types of change shade into each other and are interrelated in
complex ways.
Relevant Factors
Rate of social change is dependent on (Cotterrell, 1992):
Technological progress
§
Natural environment
§
Political organisation and consciousness
§
Degree of cultural unity
§
Interaction with other societies
§
Example: Same sex marriage
(iii) Law and Social Change
Can law influence society/culture?
We act as if it can:
Carbon tax
§
Anti-discrimination law
§
(iii) Consensus vs Conflict Models
Different theoretical models try to explain how law reflects/relates to society:
Consensus model
Society is an organic system that rests on consensus
§
Solidarity based on a common interdependence (Emile Durkheim)
§
1.
Conflit model
Society is built on fundamental conflicts. The State and the law are not
neutral. Some groups hold considerable power which they deploy to
ensure their goals are achieved:
§
Power elites
§
Interest groups
§
Family dynasties
§
2.
(iv) Law's Limits
Are there limits to law as a tool for social change?
Are laws too ambitious?
‘[L]aws are often ineffective, doomed to stultification almost at birth, doomed by
the over- ambitions of the legislator and the under-provision of the necessary
requirements for an effective law, such as adequate preliminary survey,
communication, acceptance, and enforcement machinery.’
Allott (1980)
Are there limits to law as a tool for social change?
Are laws too ambitious?
Are laws too vague to have any real impact?
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
(a) Inside vs Outside
Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and Intersex Status) Act 2013 (Cth) :-
‘The purpose of the Bill is to foster a more inclusive society by prohibiting
unlawful discrimination against LGBTI people and promoting attitudinal
change in Australia.’
Is that the role of law? To promote attitudinal change?
Law & Private Attitudes
Yehezkel Dror (1959)
Drives practices and attitudes underground
§
Example: US Marijuana Tax – believed to be evil.
§
Berger (1952)
Law can influence external acts that foster and reinforce private
attitudes
§
Example: marriage (in)equality prior to 2018
§
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
There are interests and demands which cannot be safeguarded or
satisfied through law.
2.
(b) Beyond the Scope of Law
Human rights are ‘a matter of attitudes and relationships’, rather than something
to be enforced by law.
‘[W]hen people resort to the law to protect their rights, they typically do so only
because their rights have already been infringed.It is a trap to depend too much
upon law for the enjoyment of rights, or to imagine that more laws, different kinds
of laws, or a greater resort to law, can be a substitute for attitudes and
relationships between people, and it is worth remembering Cicero’s words, ‘the
more law, the less justice’. - Malcolm Fraser
Limitations
Roscoe Pound (1917) argued that law was limited in three major ways:
Law can deal only with the outside, and not the inside.1.
There are interests and demands which cannot be safeguarded or
satisfied through law.
2.
Laws do not enforce themselves.3.
(c) Enforcement
Becker's Labelling Theory
(v) Effectiveness of Laws
US Prohibition in 1920s and 1930s
18th amendment to the US Constitution; National Prohibition Act 1919
Creation of offences, with serious sanctions, for owning, selling,
manufacturing alcohol.
750,000 people arrested between 1920-1932.
§
Fines and penalties totalling $75,000,000 imposed and $205,000,000
worth of property seized.
§
In 1930, 282,122 illicit distilleries and apparatuses, and 40 million
gallons of distilled spirits were seized.
§
Effectiveness?
Little effect on alcohol consumption.
Law repealed in 1933.
Factors in regulatory failure:
Enforcement was half-hearted;
§
Police corruption was rife;
§
Police lacked co-ordination and resources;
§
Congress refused to allocate money for enforcement; and,
§
Seen as a religious, rural population attempting to enforce their lifestyle
on urban populations.
§
Effectiveness of Laws
Evans (1965) prerequisites for effective legislation:
Source is authoritative and prestigious;1.
Rationale is compatible and continuous with established cultural and
legal principles;
2.
Pragmatic models for compliance;3.
Short transition time to prevent resistance growing;4.
Enforcement agents are committed;5.
Contains both positive and negative sanctions; and6.
Incentive to use the legislation.
Example: Paid Parental Leave Act 2010 (Cth)
The objects ‘signal that taking time out of the paid workforce to
care for a child is part of the usual course of life and work for both
parents; and [to] promote equality between men and women and
balance between work and family life.’
7.
2. Same Sex Marriage
(i) Recognition of Homosexuality
Kees Waaldijk studied legal change around homosexuality across European
countries.
Argues that progress generally follows a fairly predictable pattern:
Total ban on homosexuality.
1.
Decriminalisation of gay sex.
2.
Equalisation of age of consent.
3.
Anti-discrimination legislation.
4.
Recognition of relationships.
5.
Recognition of parenthood.
6.
Overview of State/Territory Changes In Western Australia
Homosexual sex decriminalized in 1989.
§
Mass law reform in the Acts Amendment (Lesbian and Gay Law
Reform) Act 2002 (WA), re issues such as:
Anti-discrimination
Superannuation
Access to reproductive technology
Lowering age of consent from 21 to 16 years.
Recognition of de facto relationships.
§
Same Sex Marriage Bill 2013 (WA)
Concern About Change?
Law Reform (Decriminalization of Sodomy) Act 1989 (WA), preamble-
Overview of Federal Changes 2008
Same-Sex Relationships (Equal Treatment in Commonwealth Laws—
General Law Reform) Act 2008 (Cth); Same-Sex Relationships (Equal
Treatment in Commonwealth Laws-Superannuation) Act 2008 (Cth)
Recognition of homosexual de facto relationships.
Eliminated discrimination in range of areas, including taxation,
superannuation, social security, immigration and citizenship.
2013
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Act 2013 (Cth).
Which occurred first?
Changes at the state level or Federal level?
Federal Dimension to Legal Change on Social Issues
The Cth followed WA and the other states for:
The recognition of same sex defacto relationships; and
Discrimination legislation (Sexual Orientation, Gender Identity and
Intersex Status).
Significance of state leadership to national reform on social issues
(iii) The legal issues in Australia
Who has the power to makes laws re marriage in Australia?
The Commonwealth Constitution:
S 51 The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the
Commonwealth with respect to:
(xxi) marriage;
Is this a concurrent or exclusive power?
A bit of history…
Before Federation, marriage and divorce were regulated by colonial statute.
On Federation, the power to legislate for marriage was included as a
concurrent power in s51 of the Constitution;
After Federation, marriage continued to be the province of the states;
In the mid-1900s, there were 9 separate legislative arrangements
operating in Australia; and
Lack of consistency.
Push for unification of the marriage laws
In 1961, The Marriage Act 1961 (Cth) was passed by the Federal Parliament
and received Royal Assent on 6th May 1961 – first federal law on marriage.
Significance of Currency
States can legislate 'marriage', however…
S109 of the Constitution:
When a law of a State is inconsistent with a law of the Commonwealth, the latter
shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Definition of 'Marriage'
Before 2004, there was NO definition of marriage in the Marriage Act 1961 (Cth).
Definition introduced by the Marriage Amendment Bill 2004 (Cth), a product
of the Howard Liberal government. It was supported by Labor, but objected
to by the Greens.
Previously, this definition had been a common law principle and part of
some celebrants’ marriage solemnisation.
§
That amended the definition of ‘marriage’ in the Marriage Act 1961 (Cth),
S5(1) to be:
marriage means the union of a man and a woman to the exclusion of
all others, voluntarily entered into for life.’
§
Marriage Amendment Bill 2004
Second Reading Speech (Philip Ruddock):
‘It is an important measure that I now introduce. The bill is necessary because
there is significant community concern about the possible erosion of the
institution of marriage. The parliament has an opportunity to act quickly to allay
these concerns. The government has consistently reiterated the fundamental
importance of the place of marriage in our society. It is a central and fundamental
institution. It is vital to the stability of our society and provides the best
environment for the raising of children. The government has decided to take steps
to reinforce the basis of this fundamental institution…’
Avoiding s109 Inconsistency
To define “same sex marriage” to avoid inconsistency with “marriage” as
defined by the Marriage Act 1961 (Cth)
Same Sex Marriage Bill 2013 (WA):
same-sex marriage means the lawful union of 2 people of the
same sex to the exclusion of all others, voluntarily entered into for
life;
§
What happened in the ACT?
Marriage Equality (Same Sex) Act 2013 (ACT)
22 November 2003 passed by 9-8 votes in the Legislative Assembly
http://www.canberratimes.com.au/act-news/act-passes- same-sex-marriage-
bill-20131022-2vy5o.html
Marriage means
The union of 2 people of the same sex to the exclusion of all
others, voluntarily entered into for life;
Does not include a marriage within the meaning of the
Marriage Act 1961 (Cth)
"Marriage" not immutable
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ
[16] The status of marriage, the social institution what that status reflects, and the
rights and obligations which attach to that status never have been, and are not
now, immutable. Section 51(xxi) should not be construed as conferring legislative
power on the federal parliament with respect to..[marriage as it stood] at
federation’
(iii) Legal Change
However…
Changing social definition of ‘marriage’-
In the 1600s, and up until the 1960s, various US laws did not recognise
marriages between person of different races;
In the 1700s, British law did not recognise marriages between
Catholics and Anglicans;
In the 1800s, NSW law did not recognise marriages between people
from different religious denominations;
No-fault divorce in Australia was only introduced in 1975; and
Same sex marriage in 2017.
Working Parents3.
(i) Traditional v Modern Views
What is the reality?
Women and girls make up just over half (50.7 per cent) of the Australian
population.
While women comprise roughly 47 per cent of all employees in Australia but
average $251.20 less than men each week (full-time adult ordinary
earnings -national gender “pay gap” is 15.3 per cent stuck between 15 and
19 per cent for 20 years)
Australian women account for 68% of primary carers for older people and
people with disability.
95% of primary parental leave is taken by women and women spend almost
three times as much time taking care of children each day, compared to
men.
In 2017, Australia was ranked 35th on a global index measuring gender
equality, slipping from a high point of 15th in 2006.
(ii) Legal Support?
Adequate and positive:
Workplace Gender Equality Act 2012 (Cth)
Sex Discrimination Act 1984 (Cth)
Paid Parental Leave Act 2010 (Cth)
…but are they fundamentally discriminative?
During the Howard administration in Australia, there was a strong message
through Cth policy to discourage labour force participation of mothers of
young children, with the exception of sole parents.
“Family leave with generous income replacement and incentives for each
parent to use the leave can be highly positive for gender equality, for
example, while extended, unpaid leave has the potential to undermine
women’s equality both at work and in the home (Morgan and Zippel 2003).”
(iii) Australia compared: International Approaches
European and in particular, Scandinavian countries are better at normalising
the dual breadwinner family concept.
The lack of gender equality in the Australian workplace contributes to the
declining birth rate (Brennan 2006).
Unlike other parts of the world, there is no mandatory requirements for
parents to enrol their child in early learning childcare for children below-
school age, however education is compulsory for children in the year in
which the child reaches the age of 6 years and 6 months in Western
Australia.
Qualifications for Australian childcare workers meet or exceed UNICEF
requirements - UNICEF’s 6th benchmark is that 50% of staff require tertiary
education (Diploma/Certificate/Bachelor).
Lecture
Monday, 14 May 2018 11:33 pm
You're Reading a Preview

Unlock to view full version