In 2009, Australia is debating whether to have a national bill of rights and remains one of the last western democracies that has not yet legislated for (or indeed constitutionally entrenched) some form of human rights law. Nor is there any guaranteed right to ‘equality’. Nonetheless, as feminist legal scholars, our work has been centrally concerned with issues of equality. We argue that equality is deeply implicated as a value in the Australian legal system, despite the absence of some formal instrument or constitutional guarantee.
This discussion asks, perhaps controversially, whether there might be some advantages that flow from that lacuna. Does an absence of formal rights protection leave room for flexibility and for more creative responses for those who have been left outside the mainstream of the legal community? We explore some of the traditional critiques of rights discourses and the persistence of formal equality as the preferred model. We then interrogate these issues by reference to two case studies: first, the recognition of lesbian and gay familial relationships and secondly, in the context of the law governing the regulation of abortion.