Is Gender Inequality and More Pressing Issue Than Freedom

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I Introduction – an unfair comparison?
This paper responds to the question “do laws against sex discrimination inappropriately prioritise the goal of gender equality over the promotion of other human rights like freedom?” The scope of this paper examines gender equality vis-à-vis other human rights/fundamental freedoms in the Australian context and with reference to the international phenomena. In this paper, I: (II) explore any authoritative basis for preferential status amongst human rights; (III) analyse the purpose and merits of gender equality; (IV) assess the criticisms of imbalance from a social justice perspective; and (IV) given that the law is dynamic, conclude whether comparisons matter?
If we assume for argument’s sake, that the current legislative standards for gender equality and other rights are all abysmally low, and if gender equality is given more emphasise, the result may only be negligible comparatively. The real issue is about achieving uplift in all areas of human rights. If we are to criticise gender equality for having given too much emphasis, we could equally criticise other rights for having too little.
II Equality or primacy - Who’s’ on first?
The legal literature is inconclusive in providing widely accepted distinction or commonality between human rights and fundamental freedoms: There are comprehensive classifications of human rights and fundamental freedoms. The European Convention for the Protection of Human Rights and Fundamental Freedoms (which includes gender equality amongst many other rights) makes no distinction. There are models of spectrums, hierarchies and universalities (non-derogable rights); and claims that ‘defences of some rights may be lost in the aura of universalism’. Others a...

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...be expected as legislation keeps pace. The proposition that ‘we must legislate to protect them [fundamental freedoms], just as we have done to protect us from discrimination’, is paramount along with dialogue – the law should not be the de facto educator. Attacking the imbalances between rights is akin to challenging an imaginary enemy – there is no ‘invisible hand’ tilting the scales. In December 2013, the Attorney-General of Australia tasked the ALRC to investigate and identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified. In answer to the original polemic, change may not be as balanced, fast or effective enough for some, but the key point is that the tensions, like cross-winds, keep us moving in the right direction.

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