This is an edited extract from Women and Whitlam: Revisiting the revolution edited by Michelle Arrow (NewSouth).
Central to the claims of the Women’s Electoral Lobby in the 1972 election was fertility control and access to legal abortion. Equality and independence required that women have the right to choose freely whether and when to have children. Gough Whitlam moved quickly to remove sales tax from contraceptive pills and to subsidise them under the Pharmaceutical Benefits Scheme. The government went on to provide funding for newly established women’s health centres and family planning services.
Abortion was more difficult; it was dealt with by state and territory laws, under which it was a crime, except in South Australia, where legislation enabled abortions to be carried out legally in prescribed circumstances. Judicial decisions in New South Wales and Victoria enabled a doctor to perform an abortion where they considered there was a risk to the woman’s physical or mental health, though the threat of prosecution was not entirely removed. In some states women risked injury or death in order to end an unwanted pregnancy.
The federal government could not reform abortion law, except in the territories, which were still under Commonwealth jurisdiction. In May 1973 two Labor members of the House of Representatives introduced a bill to reform the abortion law of the ACT. After much debate, Gough Whitlam voted in favour of the bill, but it failed to get a second reading on a conscience vote. During the debates, Race Mathews MP moved that a commissioner be appointed to inquire into the social, educational and legal aspects of sexual relationships. Malcolm Fraser put up a counter-proposal. His motion was accepted; by then it was September 1973.
There was no further action until April 1974 when the government announced that there would be a royal commission to inquire into and report on the family, social, educational, legal and sexual aspects of male and female relationships. I was asked to chair the commission with fellow commissioners Bishop Felix Arnott, then Anglican Archbishop of Brisbane, and Anne Deveson, writer and journalist. At that time I was deeply involved as a presidential member of the Arbitration Commission in the negotiations for a new building industry award. However, I was persuaded that the royal commission would provide a tremendous opportunity to explore important social issues in changing times. The building industry award was completed a few months after the commission began its work.
The Royal Commission on Human Relationships was announced on 21 August 1974 and began its work soon after. The terms of reference were extensive, and referred specifically to matters such as responsible parenthood, sex education, education in relationships, medical education in regard to fertility control, family planning services, factors and pressures affecting women’s decision to seek an abortion, medico-legal determinations relating to termination, and so on.
The commission encouraged wide community interest and participation around a number of key social and legal issues. Open procedures enabled the voices of many Australians to be heard, and provided a real opportunity for women to put forward their concerns about laws and policies which they considered had failed them.
Some 1200 written submissions, several hundred witnesses in formal hearings, and many hundreds more in informal sessions, helped the commission to identify major areas of concern to the community, within the scope of its terms of reference. Research reports were commissioned on topics such as medical education, abortion, attitudes to sexuality, rape, disability, domestic violence, child abuse, migrant women. The commission aimed to lay down principles to guide reform in areas of vital interest to the community, including many of great concern to the women’s movement.
After the Dismissal of 11 November 1975, the incoming Fraser government allowed the commission to continue, but with restricted resources. The final report was submitted at the end of 1977. Its many recommendations for law reform, policies and programs have been described as a feminist reform agenda, though it has taken many years for some proposals to be implemented. Jane Mathews, counsel assisting the commission, later became the first woman appointed a judge in New South Wales, and the first woman appointed to the Supreme Court of New South Wales.
Abortion, violence against women, rape and sexual abuse
On the issue that had led to its establishment, the royal commission recommended that abortion should be decriminalised when carried out in the first 22 weeks of pregnancy and beyond that date in certain defined circumstances. Abortion law reform remained a matter for the states and territories, and many years of effort by the women’s movement were needed to bring about reform. It was not until 2019 that all states had decriminalised abortion.
Along the way, women had to fight attempts to remove termination procedures from Medicare rebates, and overturn the restrictions on access to the drug RU486 (mifepristone) imposed by the government in legislative amendments to the Therapeutic Goods Administration Act introduced by Senator Brian Harradine. Effective access to safe and legal abortion, where the life or health of the pregnant woman or girl is at risk, is now recognised as part of international human rights, though it remains under attack in many countries.
In the 1970s, the plight of women trapped in violent relationships, with no resources to draw on, and often with children, had prompted feminists to establish women’s refuges, such as “Elsie” in Sydney founded by a group led by Anne Summers. The Whitlam government recognised the significance of this issue, and began funding women’s refuges in its second term. This was the first time that the federal government had paid attention to the issue of family violence.
The issue of violence against women was raised in many submissions to the Royal Commission on Human Relationships. Researchers organised a phone-in, and a study was carried out of over 100 women at “Elsie”. The evidence showed that family violence (that is, between spouses or partners, or against children) was a widespread problem, prevalent in every social group. It had an enormous effect on family relationships, and caused severe mental and physical damage to women and children.
The commission recommended an increased level of funding by the federal government for women’s refuges, covering all costs including salaries, halfway houses and flats. It recommended more effective protection and community support for women and children; and educating and training health and social services personnel and police to deal with domestic conflict.
Many submissions to the Commission raised concerns about the way rape and other sexual offences against women were handled by the legal system. In the 1970s the police investigation and the court procedures that followed were gruelling and retraumatising for victims. As a result, many women did not report these crimes or press for prosecution. If there was a prosecution, the woman/victim had to face an intimidating court experience in which her character would be attacked. Marital rape was not recognised as a crime.
The commission’s recommendations included specialised police units and medical panels, better support for women in court, and limits on cross-examination. Many changes in law and practice have been made in the intervening years, including the recognition of rape within marriage in 2012. Most recently, the New South Wales Crimes Act has been amended to provide that consent to sexual activity must be communicated by words or actions.
Violence against women and sexual abuse were recognised internationally as human rights issues by the 1990s and are now part of the work of the Australian Human Rights Commission.
Divorce, family law and equality in marriage
The royal commission received many submissions on the issue of discrimination against women. Women wanted greater legal protection against discrimination not only in employment, but in all areas: health, education, the law and in the provision of goods and services. It was only in 1975 that South Australia enacted the first anti-discrimination legislation, the Sex Discrimination Act 1975, which covered employment, education and the provision of goods and services.
The royal commission recommended comprehensive national legislation against discrimination on the grounds of sex and marital status. It also recommended universal paid maternity leave, which Whitlam had already extended to the Commonwealth Public Service.
Comprehensive Commonwealth legislation outlawing discrimination against women in the workplace and more widely in employment, education and the provision of goods and services had to wait until Australia had ratified CEDAW in 1983. The minister for women, Susan Ryan, introduced the Sex Discrimination Act 1984 to implement the convention. But Australia had to enter a reservation in respect of article 11(2)(b) of the convention, which calls for maternity leave with pay or comparable social benefits. It was not until 2011 that Australia had a national paid parental leave scheme, as required by CEDAW.
The agenda for the women’s movement in 1972 included divorce law reform and equal rights in marriage and divorce. The Commonwealth had taken over the field of divorce from the states in 1959. It had brought together all the various grounds of divorce under the former state legislation in the Matrimonial Causes Act 1959. These grounds, 14 in all, were largely based on fault. A woman who left her marriage would have very little legal protection. The law was saddled with historic inequalities between husband and wife, father and mother. It was an era of private detectives and “blackmail” divorce.
Before the 1972 election, Labor Party policy had included divorce law reform. The matter had been under consideration by the Senate Standing Committee on Legal and Constitutional Affairs. After the election of the Whitlam government, attorney-general Lionel Murphy, who had been a member of the Senate Committee, took over divorce reform with enthusiasm. First, however, in July 1973, he appointed a woman as the first civil marriage celebrant. This was the first of many such appointments, and they proved very popular. These days, around 80% of marriages are performed by civil celebrants.
In December 1973, senator Murphy introduced a bill in the Senate providing for a radical modernisation of divorce and family law, based on no-fault principles and on gender equality. The bill was reintroduced after the 1974 double dissolution, and was referred to the Senate Standing Committee. This time the bill included provision for a federal Family Court.
After the Senate had passed the bill, Whitlam introduced it in the House of Representatives on 28 November 1974. In doing so he said that public opinion polls showed overwhelming support for the reforms contained in the bill, including the proposal for a no-fault ground of divorce based on one year’s separation. He was an enthusiastic supporter of the legislation and of no-fault divorce. He had resisted the Anglican Archbishop Marcus Loane’s attempts to pressure him to direct a vote against the legislation, pointing out that there would be a conscience vote.
After a free vote in both houses, the Family Law Act received assent on 12 June 1975. The act removed the remnants of legal inequality between husband and wife, such as the question of guardianship of children, bringing Australia into line with human rights principles. It provided for a single no-fault ground of divorce — irretrievable breakdown of marriage, evidenced by one year’s separation.
The provisions dealing with children, property and maintenance were based on the principles of the equality of husband and wife, mother and father, and the recognition of the homemaker role. Women would be entitled to an independent domicile. The welfare of the child would be the paramount consideration, and the wishes of children over 14 would be respected.
Emphasis was placed on conciliation, counselling and resolution of disputes. In most cases each party would pay their own costs. Provision was made in the act for parties to apply for legal aid under the legal aid scheme that the Whitlam government had established. This benefited many women, who seldom had access to resources.
There was resistance in some quarters to the introduction of no-fault divorce. Some religious groups and conservative women’s groups argued that it would destroy the sanctity and security of marriage if one party could walk away from the relationship and then divorce an “innocent” partner. On the other hand, there was considerable support in Parliament and in the community not just for no-fault divorce, but also for the other provisions of the new act.
A new court
The act set up a new federal court, the Family Court of Australia. It also provided an option for states to set up their own Family Courts. There would be a Family Law Council to advise on family law issues and an Institute of Family Studies to conduct research.
Commenting on the Act, Whitlam said that “Australia will have the most enlightened matrimonial and family law in the world. The medieval concepts of guilt and fault will be removed from divorce proceedings … By recognising the fundamental status of marriage as a profoundly personal human relationship … the bill will give fresh and meaningful stature to the institution of marriage itself”.
The Family Court of Australia was established as a free-standing court, dealing exclusively with family law matters. The judges were to be appointed specifically for their suitability for dealing with family law matters. The court would have counsellors and welfare officers in addition to legal staff, and would provide mediation to help the parties to reach a civilised determination of their issues. The court premises would be relatively informal, and proceedings were simplified with the aim of keeping costs low. It was referred to at the time as a “helping court”. Judges would not wear judicial robes, and the judge’s bench was at a relatively low level.
The Family Law Act was proclaimed in August 1975, and was due to come into force on 5 January 1976. When Gough Whitlam invited me to head the court, I was immersed in the work of the Royal Commission on Human Relationships. As I was reluctant to abandon the commission, it was agreed that I should continue with both roles. There followed a period of intense activity until the work of the commission was completed; my court duties meant that a heavy burden fell on Anne Deveson and the support staff.
Five judges were appointed to the court in August, and further appointments were to be made before the act came into force. However, the dismissal of the Whitlam government prevented this, and the incoming Fraser government had a caretaker role until after the 13 December election. The efforts of Senator Ivor Greenwood to unproclaim the Family Law Act failed. When the act came into force, attorney-general Robert Ellicott had the task of making appointments to a court for which the government had little enthusiasm. The appointments came slowly, while a backlog of cases built up quickly. Many people had been waiting for the new legislation to come into force.
The Family Court and its legislation have always been surrounded by a certain amount of controversy. Some sections of the community have been unwilling to accept no-fault divorce, the concept of equality between husband and wife, or that decisions about children should be based on the children’s interests and needs. There has always been an element of patriarchal resentment and anger directed to the court. Widespread gender-based violence against women and murder of women by their partners has been paralleled in personal threats to judges, bomb threats, actual bombings and murders.
Over the last 45 years, the Family Court has assumed additional jurisdiction to cover all children, whether or not their parents are married, disputes between de facto partners, and same-sex relationships and marriages. Provisions have been added about superannuation, child support and child abduction.
Though the original Family Law Act did not refer expressly to violence, family violence and child abuse became major areas of concern for the court.
There remain difficult issues relating to the overlapping jurisdiction of the Family Court and state courts in relation to the protection of children from abuse. Other problems relate to the lack of resources and a reduction in the court’s in-house counselling and mediation services, the build-up of unacceptable delays in dealing with cases and increasing costs, exacerbated by lack of access to legal aid and the increasing complexity of matters.
To these problems has been added the most recent blow, namely the merger of the Family Court with the Federal Circuit Court, which for some years had been dealing with a range of family law matters under the Act in addition to its other jurisdictions, such as migration issues. While this merger has brought all matters within one two-tier court (and thus closer to the original concept), this has been done at the great cost of losing the identity of the Family Court of Australia, which was established to administer the Family Law Act. An institution originally set up with special resources to provide support to families in troubled times is in danger of turning into one more court.
A lasting legacy
This is not the place to argue out the issues. The important point to note is that way back in 1974 and 1975, a totally new framework was envisaged for dealing with marital breakdown, and a court was set up with in-house counselling and mediation services. That the dreams were not fully realised does not mean that they had no validity. I have not wavered from my support for the general principles of the Family Law Act. The model it established was admired around the world, and remains one of the great legacies of Gough Whitlam and his attorney-general, Lionel Murphy.
