BeckyBatagol, KateSeear, HeliAskola and JamieWalvisch (eds), The Feminist Legislation Project: Rewriting Laws for Gender‐Based Justice, London, Routledge, 2024, 392 pp, hb, £145.00

What the paper says

The Feminist Legislation Project: Rewriting Laws for Gender-Based Justice (FLP) brings together academics, lawyers and activists to rewrite Australian legislation from a feminist perspective. The task of the contributors was to identify legislation or regulations that adversely impact women, reform the legislation or regulation, explain why the reform was needed and describe why the reform was feminist (9-10). The resulting collection is rich, thought-provoking, and innovative. It includes over 40 contributors from diverse backgrounds including academics, lawyers, activists and victim-survivors, rewriting legislation in 16 different areas of law ranging from topics that have been of feminist concern for some time, such as flexible work (Chapters 16 and 16A), to family violence in the migration context (Chapters 14 and 14A), and women's participation in the construction industry (Chapters 17 and 17A). Generally, the legislative reforms are temporally situated in 2024, save for a reform that first requires constitutional change and is situated in 2048 (Chapters 3 and 3A). The FLP builds on the feminist judgments projects: collections of judgments rewritten from a feminist perspective. The feminist judgments projects commenced in Canada and have since flourished around the world (see https://criticaljudgments.com/ [https://perma.cc/NFT9-3FQZ]). So-called critical judgments projects have followed. At least one of the contributors to the FLP, Dani Linder, has built on an earlier rewritten judgment in one of the critical judgments projects, the Indigenous Judgments Project, to rewrite legislation on the same issue. While Linder and her co-author's rewritten judgment argued that any exclusion of prisoners from the franchise is disproportionate and therefore constitutionally invalid (Dani Larkin (now Linder) and Jonathan Crowe, ‘Roach v Electoral Commissioner [2007] HCA 43’ in Nicole Watson and Heather Douglas (eds), Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision-Making (Oxford: Routledge, 2021) 247), in the FLP she has rewritten legislation to ensure prisoners, and several other previously disenfranchised groups, are legally allowed to vote (Chapters 4 and 4A). In Australia, Margaret Thornton has highlighted that feminist led campaigns for legislative reform have resulted in important changes including no-fault divorce and anti-discrimination legislation (‘Post-Feminism in the Legal Academy?’ (2010) 95 Feminist Review 92, 93). In more recent times in Australia, legislative reform has often been led by feminist thinkers ‘within’ the establishment, through their leadership of institutional bodies such as law reform commissions and inquiries. For example, when the Victorian Law Reform Commission was re-established in 2000, Marcia Neave was its inaugural Chair until 2006. During her tenure she oversaw significant changes to family violence, sexual offence and homicide laws. She observed that, ‘perhaps the biggest changes in the position of women have come as a result of feminist scholarship and activism which has demonstrated how racial and gender bias are built into social and legal procedures, laws and institutions’: ‘The Honourable Marcia Neave AO (2003)’ (Wyvern of the Year, Queens College, The University of Melbourne, 2015). Significantly, the Homicide Review and its subsequent recommendations for legislative reform were underpinned by a critical paper authored by feminist academic, Jenny Morgan, which highlighted the importance of social context in understanding why people kill (Who Kills Whom and Why: Looking Beyond Legal Categories (Victorian Law Reform Commission, Occasional Paper, 8 March 2002)). In Queensland, Aladin Rahemtula and Susan Purdon have documented the important role feminist lawyers and scholars have played in law reform through activism and institutional law reform processes (A Woman's Place. 100 Years of Queensland Women Lawyers (Brisbane: Supreme Court of Queensland Library, 2005)). Against this background, the editors of the FLP acknowledge that Australian feminists have already focussed attention on legislative reform (23). However, in this collection, they and their contributors show that there is more to be done, in some cases reform has not yet occurred or has not gone far enough. The aim of the FLP, like some of the judgments projects that preceded it, is to influence practice. The FLP seeks to show how feminist legislative reform can be done through the drafting of legally plausible Bills (6, 25). While the editors are not prescriptive about what would make a reform ‘feminist’, they provide some basic guidance to participants in the form of four key principles: gender-based harm is not experienced by everybody in the same way; Aboriginal and Torres Strait Islander peoples were the first sovereign Nations of the Australian continent and its adjacent islands and possessed it under their own laws and customs; we seek to listen and learn from those with personal experience of gender based harm; and our work will be gender and trans-inclusive (8-9, paraphrased). These principles highlight the intersectional approach of the collection. As the editors comment in their acknowledgement, they recognise the ‘unbreakable connection between sex, gender and race’ (xxvi; 4). Notably, despite a lengthy history of feminist engagement with legislative reform, as Rosemary Hunter observes in her foreword to the collection, it turns out that the ‘translation of feminist ideas into statutory form is even more challenging than translating feminist ideas into the form of a judgment’ (xx). The editors highlight the difficulties in bringing a feminist lens to legislative reform, the complexity of statutory drafting and the risk that unintended consequences may flow from it. The editors observe that legislation should be ‘simple, precise … logically organised … [and] written for the least charitable reader’ (26). In recognition of these difficulties and aspirations, an expert legal drafter was recruited to their team, who presented a legal drafting workshop and helped to stress test each of the newly drafted rules and regulations (34). When I began to read this book, I approached it with trepidation. I wondered how a book of rewritten legislation could possibly be engaging. Unlike a judgment, which can tell a story, legislative amendments are often impossible to understand without access to the original legislation which is being amended. References to ‘omission’, ‘substitution’ and ‘repeal’ abound in the rewritten legislation in the FLP and, true to real-world amendments, they are difficult, if not impossible in most cases, to read and understand on their own. The editors’ solution is that each new piece of rewritten legislation is accompanied by a second reading speech, written by the same person or people who authored the legislative reform. In the collection, the second reading speeches precede the rewritten legislation and provide plain language insight into the feminist intent of the writer(s), and why and what change is proposed. The FLP wanted to model what feminist second reading speeches might look like, and the resulting speeches use gender-inclusive language, and often support their claims through references ‘to scholarship, activism, direct quotes and accounts from people with personal experience of gender harm’ (11). Some of the second reading speeches are truly inspirational and provide wonderful examples of clarity and persuasion. For example, Ronli Sifris's second reading speech argues compellingly for the compensation of surrogates and models the feminist approach mentioned, using gender-inclusive and plain language, quoting those with lived experience, and weaving in quotes from other feminist academics to support her claims (143-150). Drawing on the approach of the judgments projects, each part of the FLP also includes a brief commentary. The commentary is written by a different author or authors to those who have written the second reading speech and legislative reform. The commentaries reflect on the advantages and disadvantages of the proposed reforms and provide another feminist perspective on the reform(s). In recognition of the expertise of those who have lived through violence and trauma (Lula Dembele and others, ‘Researching With Lived Experience: A Shared Critical Reflection Between Co-Researchers’ (2024) 23 International Journal of Qualitative Methods), at least one of the commentaries was co-written by a lived experience expert. Saxon Mullins’ biographical note identifies she is a survivor and Director of Advocacy at Rape and Sexual Assault Research and Advocacy, and together with academic Rachel Burgin, she has co-written a commentary (Chapter 7A) in response to affirmative consent reforms and abolition of the mistake of fact ‘defence’ recommended by Jonathan Crowe, Asher Flynn and Bri Lee (Chapter 7). Mullins and Burgin acknowledge the history of rape law reforms in Australia and elsewhere, often driven by feminist activists, scholars and lawyers, and comment that while they have seen feminist law reform they have ‘not seen feminist law’ (140) in the sexual violence space. While Mullins and Burgin are broadly in favour of the legislative reforms recommended, they emphasise that law reform by itself is not enough: ‘a broader system of social and cultural change is required to shift attitudes that facilitate rape’, and they also highlight that challenges to legal practices are needed to enable change (141). This theme is repeated in several chapters of the FLP. In this sense, they reflect Carol Smart's views that, while law is powerful, to see social change, feminists must decentre the law (Feminism and the Power of Law (London, New York, NY: Routledge, 1989) 21). Several commentaries in this collection also point to potential unintended consequences of proposed reforms. Sean Mulcahy argues for amendments to the National Construction Code to ensure all-gender and disability access to toilets complete with sanitary disposal facilities (Chapter 10). While generally in agreement with the aspirations of the law reform proposed, in their commentary Nicole Kalms and Laura McVey raise a couple of serious concerns (Chapter 10A). They describe how inclusion on the books may unintentionally exclude people and groups in practice. They point to a campaign that states ‘if you have a wheelchair accessible toilet, then you already have an all-gender toilet on the premises’ (187). They observe that the recommended legislative change may have the effect of limiting the access of those already marginalised (for example wheelchair users). They argue that, given this, the reforms required do not go far enough and a more radical proposal is needed (188). Of course, the risk of unintended consequences of legislative reform is predictable: many feminist scholars have highlighted the disappointing consequences that sometimes flow from legislative reforms (Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Annandale, NSW: Federation Press, 2002) 442–445) and the risk, as previously noted, is foreshadowed by the editors of the collection (10). For example, real life feminist inspired law reforms to homicide that arose from a review conducted by the Victorian Law Reform Commission in 2004 lead to the abolition of provocation and the introduction of defensive homicide. The changes were the subject of critique which raised questions about whether they were successful in addressing long-standing concerns about the legal responses to domestic homicide, leading to the abolition of defensive homicide just a few years later (Kate Fitz-Gibbon, ‘The Victorian Operation of Defensive Homicide: Examining the Delegitimisation of Victims in the Criminal Court System’ (2012) 21 Griffith Law Review 555). Another concern often raised by critics of law reform is that there is no evidence that the social problem exists that needs attention. Elections are often run on ‘evidence free’ law reform agendas. For example, a recent state election in Australia ran on a platform of ‘tough on youth crime’ in a context where the evidence suggested youth crime was in decline (Ben Smee, ‘“Put them in a coffin”: could debate over Queensland's “youth crime crisis” take a dangerous turn?’ The Guardian 18 October 2024). Kate Seear, Jamie Walvisch and Liza J. Miller propose reforms to a provision in victims’ compensation legislation (Chapter 9) to ensure that provocation is not taken into account by courts in assessments for compensation for gender-based crimes. They argue that the ‘mere existence of the provision … has the potential to generate suffering and angst for potential applicants’ (165). In her commentary, Jenny Morgan makes the observation that she is not convinced that the social problem exists (Chapter 9A), highlighting the risk of focussing on non-evidence-based reform. Audre Lorde (in Sister Outsider: Essays and Speeches (Trumansburg, NY: Crossing Press, 1984) 110–114) has famously doubted that the masters’ tools can be used to dismantle the masters’ house. The FLP challenges this claim. The editors point out that the FLP has already had an impact on recent discussions of real-life law reform agendas in Australia (19-20). While this is not surprising, especially given that many of the authors have been developing their ideas on the issues about which they write in the FLP for years, it does point to the prospects of feminist inspired legislative reform. While the collection is of scholarly interest, the various chapters would be a valuable addition to law classes in helping students to think critically (and aspirationally) about law-making and their future role as lawyers. It will also be of interest to politicians and policy makers given its legal plausibility. While this is a distinctly Australian collection, the editors rightly claim that the collection speaks directly to the ‘challenges of feminist law reform worldwide’ (20), opening up the possibility of future collections globally.