ABSTRACT
These claims have inspired a considerable literature reporting accounts of and research into ‘intersectional’ experience. In terms of Leslie McCall’s taxonomy of approaches to studying intersectionality, much of this literature has taken an ‘intracategorical’ approach (McCall 2005: 1780-82; reprinted in this volume). That is, it has focused on the experience of a single ‘intersectional’ group, such as women of colour, lesbians, workingclass women or women with disability. In Australia, for example, this kind of approach has been taken by Indigenous women, who have trenchantly criticized white feminists for purporting to speak for them, and argued for the specificity of their experience (including the experience of being oppressed by white women), and hence their separate political position, as Indigenous women (e.g., O’Shane 1976; Behrendt 1993; Huggins 1994; Moreton-Robinson 2000). Australian multiculturalism also gave rise to the intersectional category of ‘women from non-English speaking backgrounds’ (NESB), a category which asserts both difference from the more privileged category of English-speaking women, and a commonality of experience among immigrant women for whom English is not their first language. There
has been a considerable amount of research on, for example, the health and well-being of NESB women (e.g., Alcorso and Schofield 1991; Mason 1993; Easteal 1996), and on their position and experiences in the labour market (e.g., Alcorso 1991; Yeatman 1992; Alcorso and Harrison 1993; Junor 1994; Stephens and Bertone 1995; VandenHeuvel and Wooden 1996) and in the legal system (e.g., Keys Young 1994, Assafiri and Dimopoulos 1995, Domestic Violence and Incest Resource Centre 1996). Intersectionality analysis has, however, been critiqued by those who argue that we all occupy a position at the intersection of multiple systems of privilege and/or subordination – that ‘multidimensionality’ is, in fact, a universal condition (e.g., Grillo 1995: 17; Hutchinson 2001: 312) – and by those who argue that there is no ontology of identity, what McCall has termed the ‘anticategorical’ approach (McCall 2005: 1776-8; see also Staunces 2003: 103; Milczarek-Desai 2005: 243-5). In either its modernist or postmodernist form, this critique tends to lead to the proposition that, rather than working from predetermined identity categories, it is necessary to examine the ways in which domination, subordination, and subjects themselves, are constructed in particular locations and contexts (e.g., Grillo 1995: 17; Hutchinson 2001: 312-13; Yuval-Davis 2006: 200). This debate about whether subordination is best illuminated via an intersectional or a contextual analysis, whether it should be understood as an experience consistently related to identity or a variable product of particular institutional structures, is taken up here from the perspective of research into women’s access to legal aid in Australia. It will be seen that while the research began with an intersectional analysis, its findings tended to support the argument for attention to context rather than identity. Women and legal aid in Austral ia
Access to the legal system and to legal representation, to enable adequate pursuit of legal rights and the defence of legal proceedings, has been regarded as an important component of democratic citizenship. Legal aid systems in Western countries were established pursuant to this conception of citizenship, in order to ensure that people with legal needs were not denied access to the legal system or to an adequate defence by reason of limited resources. Nevertheless, legal aid has rarely been considered a ‘core’ welfare programme in the same way as health and housing (which undoubtedly address more widespread needs). While a comparatively generous legal aid scheme was established in England and Wales, legal aid provisions in other countries tended to be restricted in one way or another, for example being confined to the provision of limited, free legal services rather than funding for private representation, or subject to income thresholds set at quite low levels. As a general proposition, too, legal aid provisions in Western countries have declined since the 1970s, with the demise of welfare states
and the rise of neo-liberalism, resulting in a revised conception of legal aid as a residual rather than universal programme, to be carefully targeted to those defined as the most needy (see, e.g., Moorhead and Pleasence 2003). The gendered, raced, and other consequences of these (re)distributional policy choices and changes have rarely been questioned (though see Addario 1998; Brewin 2004; New Zealand Law Commission 1999), although Australia represents something of an exception to this trend, with feminist activists and academics making considerable efforts to highlight the issue of gender difference in legal aid provision.A study of women’s access to legal aid was undertaken by the federal Office of Legal Aid and Family Services (OLAFS) in 1994, in response to feminist concerns that women were not receiving a fair share of the legal aid budget. The OLAFS report, Gender Bias in Litigation Legal Aid, found that in 1992/93,1 women received only 37 per cent of net legal aid expenditure on representation services, and that while women made 39.5 per cent of legal aid applications, their success rate was lower then men’s (OLAFS 1994: 8-9, 14, 24). The report made it clear that this gender bias was a product of indirect rather than direct discrimination against women (at 40). That is, legal aid policies and guidelines did not overtly distinguish between men’s and women’s applications. Rather, the adverse outcomes for women resulted from the differential treatment of legal aid applications relating to criminal law and family law matters. Women enjoyed an equal success rate with men in relation to criminal matters, and an equal or slightly higher success rate than men in relation to family law matters (at 19-21). But legal aid guidelines gave priority to criminal matters in which the defendant was potentially threatened with loss of liberty, criminal law applications outnumbered family law applications, criminal law applications had a higher approval rate than family law applications, and men made the majority of criminal law applications (over 80 per cent), while women made the majority of family law applications (over 70 per cent) (at 19-21, 34). Thus, in 1992/93, 72 per cent of all litigation legal aid grants were made in the area of criminal law, consuming 43 per cent of the total legal aid budget. By contrast, only 21 per cent of legal aid grants were made in the area of family law, consuming only 32 per cent of the legal aid budget (at 24). The standard justifications for prioritizing criminal law in the expenditure of legal aid budgets are that criminal defendants face the overwhelming power and resources of the state, and therefore have the greatest need for legal representation; and the serious consequences of being found guilty of many criminal offences, i.e. deprivation of liberty. In Australia, these justifications were reinforced in a 1992 High Court decision, Dietrich v R,2which held that a fair trial for a person accused of a serious criminal offence includes a right to legal representation, and if the accused is unable to afford such representation, either it must be provided at public expense, or the trial should be stayed. By contrast, while the Family Court has repeatedly made
statements about the iniquities and serious consequences of lack of legal aid funding for family law matters,3 those statements have had no practical effect on legal aid grants policy.
