ࡱ> ` bjbj .$1%p  0'''8 (t(\0^2(()"2)2)2) * * *q^s^s^s^s^s^s^$$`hb|^;@ * *;@;@^2)2)^JJJ;@2)2)q^J;@q^JJ\|]2)( c^'YGJ\]^0^\cIc$]c]\ *LY16J6,: * * *^^Jv * * *^;@;@;@;@000!'000'000  30 September 2005 Paid Work and Family Responsibilities Submission Sex Discrimination Unit Human Rights and Equal Opportunity Commission Sydney By Email familyresponsibilities@humanrights.gov.au Paid Work and Family Responsibilities Submission I am a senior lecturer in the Law School, University of Melbourne and a member of the Centre for Employment and Labour Relations Law at the University of Melbourne. I have been researching and writing about paid work and family responsibilities over the past few years. My curriculum vitae can be accessed on: ???? In my opinion much work and family literature and debate, and the federal legal framework, assume a partial and relatively narrow understanding of family and family responsibilities. When people speak or write of child care and elder care responsibilities, they often assume care arrangements conceptualized through heterosexual marriage or marriage-like arrangements. I was pleased to see in Striking the Balance: Women, Men, Work and Family a commitment to a broader, more inclusive approach (p 4-5). I congratulate HREOC on this commitment to equality and diversity. I attach, as my submission to this inquiry, an article that I have written about the importance of taking a broader approach when looking at work and family issues in Australia. The article focuses on same-sex families and Indigenous families, as two groups that are often not included in work and family discussions in Australia. The article is forthcoming in (2005) Law in Context. Yours Sincerely, Anna Chapman Senior Lecturer Law School University of Melbourne  HYPERLINK "mailto:a.chapman@unimelb.edu.au" a.chapman@unimelb.edu.au ph: 03 8344 5625 (2005) Law in Context (forthcoming) Challenging the Constitution of the (White and Straight) Family in Work and Family Scholarship Anna Chapman* Over the past ten years or so a burgeoning body of scholarship has emerged in Australia investigating the connections between work and family life, market work and reproductive and caring work. Literature has emerged from a number of different disciplines, including law, industrial relations, human resource management, social policy analysis and gender studies. The material covers a wide field of investigation, from examining the efficacy of law in addressing work/family conflict, through empirical studies on how women organize their working lives around family and caring responsibilities, the gender dimension of caring and domestic labour, to the roles played by trade unions in advocating for workers in this regard. Much of the scholarship in the area assumes a narrow and partial view of caring relationships and responsibilities. When the literature discusses caring responsibilities in relation to children, there is an assumption in much of the writings that the carers of children are biological parents, or parents constituted through a marriage or a heterosexual de facto relationship. When it discusses caring for ill or frail adults, it is often assumed those carers are family members through a biological or marriage tie. In other words, the scholarship in the area often examines only the caring relationships that exist through heterosexual relationships, and often only those in an Anglo centric tradition of the nuclear family, albeit the frequently reformed step or blended heterosexual family. This feature of the literature excludes and renders invisible many caring relationships, in a range of diverse situations, where people take on central caring roles in relation to children and others to whom they have no direct biological, marriage or heterosexual de facto tie. Two categories of caring relationship excluded by the focus of the literature on the heterosexual nuclear family are extended kinship and family networks in Indigenous communities, and families and caring relationships amongst lesbians and gay men. This article seeks to present a preliminary response to the exclusion of Indigenous and same sex caring relationships, laying the groundwork for further work in this area. A comment on the use of identity categories is needed at this point. Although inherently fraught as potentially essentialising through conflating of difference, identity categories are nonetheless a useful analytical tool for enabling us to uncover normative assumptions about, for example, gender, race and heterosexuality (Graycar and Morgan, 2002:28-55). or Mari Matsuda, [a] category of analysis becomes useful when, understood in its full complexity and revealed in its exceptions and counterexamples, it helps to know more than we would have known otherwise (Matsuda, 1990:174). This articles use of the identity categories of Indigenous and lesbian and gay, and its critique of the assumed family identity of much work and family scholarship, aims to leave the field of scholarship in Australia knowing more than it otherwise would. Whilst the Australian literature has engaged fully in revealing the gender dimension of work and family dynamics, through for example, the gendering of caring and household work, the gendered character of different forms of labour market participation and the rewards of that participation, and the gender dimension of the uptake of legal entitlements to parental and family leave, examining the racial and heterosexed dimensions of work and family dynamics has to date been underdeveloped. There is a parallel between the critique I make now of contemporary work and family literature, and the claims of gender essentialism leveled at feminist scholarship, in the US from the late 1980s, and then later in Australia, by women of colour, Indigenous women and lesbian scholars (Graycar and Morgan, 2003:48-50). Just as feminist scholarship and activism came to understand that its claims for justice were all the stronger for examining its own assumptions of race and heterosexuality, work and family literature is enriched by broadening its concerns to examine the situations of caring relationships within the context of Indigenous communities and queer communities. This is not just a plea for inclusiveness or standing together - for its own sake, important as that is, especially in the face of a Conservative federal government hostile to feminism, let alone Indigenous and queer issues. It is a plea for strengthening the scholarship by more fully engaging with the range of caring, family and community practices in Australia. It is a plea for more empirically sound examinations of work and caring practices, more rigorous policy analyses enriched through understandings of Indigenous models of child rearing and same sex family structures, and deeper and more thorough critiques of law and legal regulation. It is a plea for engagement with broader models of child-rearing, informed by community and collectivity, over liberalisms focus on the individual, nuclear (heterosexual) family. In short, we all gain from adopting a broader perspective. In the words of the former Chief Justice of the Family Court of Australia, Alastair Nicholson: One of the fundamental misconceptions which plagues me is the failure to understand that heterosexual family life in no way gains stature, security or respect by the denigration or refusal to acknowledge same-sex families. The sum social good is in fact reduced, because when a community refuses to recognize and protect genuine commitment made by its members, the state acts against everybodys interests. (Boers, 2004: 3) This article seeks to provide a starting point in its encouragement to researchers to engage with outsider perspectives when looking at work and caring/family issues. The article seeks to achieve this in a number of different ways. First, an overview of current thinking and research on Indigenous families and gay and lesbian family structures is offered, in an attempt to bring these apparently unknown families into the work and family scholarship. The focus of the discussion is on responsibilities towards children, as this is a major theme in the field of work and family. Two matters warrant brief comment at this point. Importantly, the approach and structure of the article is not intended to represent Indigenous families and same sex family and caring formations as mutually exclusive categories. Peoples lives take place at the intersection of many categories, including race, sexual preference and gender, to name a few, and may intersect additionally with issues of sole parenting and economic disadvantage. Secondly, a comment on the use of family as a concept is also useful here, particularly as it relates to same sex parented families. Family and family values are deeply contested in Australia as elsewhere, with the religious right and conservative politicians seeking to ensure that family and marriage remain exclusively heterosexual. Prime Minister John Howard is explicit about this: Im a social conservative. I think there are certain benchmark institutions and arrangements in our society that you dont muck around with, and children should be brought up ideally by a mother and father who are married (Marino, 2004). Gay and lesbian community groups and activist campaigns seek to disrupt this monopolization, in favour of legal recognition of a diversity of family and relationship forms, rallying under banners such as love makes a family (Victorian Gay and Lesbian Rights Lobby). This article uses the concept of family in relation to same sex intimate relationships, with the conscious purpose of seeking to displace conservative constructions of family and family values. In this way this article sees itself as part of the fight for family and relationship recognition. Following the profile of Indigenous understandings and practices, and caring responsibilities in same sex parented families presented in the succeeding section of the article, the analysis then turns to examine a central Australian commentary on work and family Barbara Pococks Work/Life Collision. This text, a meta-study of scholarship on work and family in Australia, is perhaps the most well known Australian examination of the field, and the author is herself, for good reason, one of the most highly regarded scholars working in the area. Her views count in academic discussions and in policy debates. The final chapter in the Work/Life Collision includes recommendations. This program of reform is influential. Following the discussion of the Work/Life Collision, the article examines some main legal rules regarding work and family interface, in relation to which engagement with Indigenous and same sex families appears of particular importance. This provides an illustration of the difference that a non-normative lens can make in examining the efficacy of the law. Although engagement with issues of race and sexual preference is appropriate and desirable in all examinations of legal regulation, some matters stand out as particularly demanding of a non-normative lens. Several key legislative provisions are examined, including unpaid maternity and paternity leave, and the rules in the Workplace Relations Act 1996 (Cth) prohibiting discrimination. In addition, the family/carers leave test case of 1994/1995 is examined, as is the family provisions test case recently decided by the Australian Industrial Relations Commission. The differential impact of legal rules has real life consequences, which appear reflected in empirical examinations of workplaces experiences in the queer community. In an Australian study of 900 gay, lesbian and transgender people, 20% of respondents reported that they had been refused workplace entitlements that were generally available to their heterosexual colleagues. Notably, this 20% were people who had applied for and been refused the entitlement. The study reported that up to 44% of participants did not apply for workplace rights because they saw themselves as ineligible due to their sexual preference (Irwin, 1999:35). Bringing the Unknown into Vision Indigenous Child Rearing Practices A central theme in the literature on Indigenous family structures in Australia is the need to engage with the material in a way that recognizes both strong common themes amongst Indigenous peoples (such as spiritual connection to land and waters), in addition to understanding the existence of considerable diversity and fluidity within Indigenous communities, social structures and cultural practices. A second main theme is the understanding that Indigenous cultural practices and customary law (Indigenous common law) is practiced today by Indigenous people, both in rural and remote communities and in urban Australia. Indigenous common law has been described as a sophisticated set of laws and beliefs, which provides for the resolution of disputes, determines family and other relationships, and which protects and maintains the belief systems and culture of Indigenous Australian society (Neilsen and Martin, 1998:93). Notably, the living out of Indigenous common law may take place for many in a fragmented fashion due to the effects of colonisation (Neilsen and Martin, 1998:92), including the forcible removal of Indigenous children from their families and communities, to be raised within the non-Indigenous community (Human Rights and Equal Opportunity Commission, 1997). Several important differences between Indigenous family structures and non-Indigenous family forms stand out. A central difference relates to marriage. Although many Indigenous people form marriages (with an Indigenous partner, or a non-Indigenous partner) that are recognized as such under Australian law, many also form unions described as Indigenous common law marriages (Neilsen and Martin, 1998:115). These latter are marriages according to Indigenous common law. They are generally, but not always and not for all purposes, recognized as de facto relationships under Australian law (Neilsen and Martin, 1998:115). This depends on the particular scope of the legal rule in question, and how de facto relationship is defined within it. A further notable difference between Indigenous family structures and non-Indigenous families is the importance of extended family and kinship systems in Indigenous communities. Obligations of reciprocity are manifested in many different ways, including a ready-made social security system, which has been described as for kin and by kin (Collard et al, 1994:123-124). In addition, the responsibilities of family members such as grandmothers, aunts and cousins to care for children are generally far greater in Indigenous families (McRae et al, 2003:576-578; Ralph, 1998:5). Indeed, McRae et al write that grandparents and aunts are seen as primary care givers of children, with status equal to the childs biological parents, and that it is a common practice for mothers to leave children in their care for extended periods of time (2003:576). For example, for Tiwi Islanders - the Tiwi Islands are located about 80 kilometres north of Darwin - the responsibility for raising children is shared by several women relatives of the child, in a large extended family setting. 鱨վ are seen as having several mothers, although a childs biological mother is recognized as having ultimate responsibility. Writing about the Tiwi Islanders, Davis and Dikstein describe that [w]hen a child is born he or she is born with multiple mothers (1997:64). A further example is provided by the family and caring structures of Indigenous people living in urban areas in Western Australia. Most Noongar families add cousins or grandchildren to the household as a matter of form. It is common for grandparents to become social parents to a child who calls them dad and mum. Birdsall relates how child-rearing in a Noongar household is a communal enterprise from the very first, with children learning to be looked after by their grandmothers and aunties, in particular, and other relations from time to time. Such flexibility of filiation extends to aunts and cousins, in particular. A Noongar child is taught to regard an aunt as a mother, and her cousins as her sisters and brothers. (Eversley, 1984:144) A corollary of this fluid involvement and responsibility by extended kin in the lives of children is that children have considerable autonomy to decide with which relatives to live, provided the relations fall within acknowledged kinship networks (McRae et al, 2003:576; Ralph, 1998:5; Davis and Dikstein, 1997:65). Expert evidence in a case before the Full Court of the Family Court regarding the appropriate residence of a Tiwi Island child described the movement of Indigenous children between households in the following way. It is not at all unusual for Aboriginal children to move freely, even frequently, although the legal system tries to control and restrict this. Such movements, except for infants, are almost always with the willing consent of the child and are frequently initiated by the child who has a right to express their own desires with regard to residential arrangements. Moves can be occasioned by many factors, including the desire for change, to reside with paternal kin for some time, to move away from conflicts in other words, many of the same reasons adults express as well for moving around. These movements between kin, and often between communities, are seen as important ways in which children acquire their understandings of the ways in which kinship and country relationships are lived out. They are thus not a sign of disruption as they might be interpreted by non-Aboriginal people but are an important factor in socializing children. (Re CP , 502-503) A factor that increases the movement of Indigenous children within Indigenous communities is the child welfare system. Indigenous children continue to be forcibly removed from parents at considerably higher rates than non-Indigenous children (McRae et al, 2003:614). The main reasons for such separations are said to be high levels of poverty and violence in many Indigenous communities, in addition to the continuing impact of past policies of child removal on parents (McRae et al, 2003:614-616). It is also said that Indigenous children continue to be removed because Indigenous family forms and child rearing practices do not conform to the idealised European - understandings of responsible parenting arrangements (Thorpe, 1994:162). The Aboriginal/Indigenous Child Placement Principle, adopted by all States and Territories except Western Australia, requires that Indigenous children be placed within the Indigenous community, and that Indigenous communities be involved in decision-making regarding the removal and subsequent placement of children (McRae et al, 2003:617-625). The effect of these processes of removal is to increase the movement of children between households within Indigenous communities. The Care of 鱨վ in Queer Communities Any discussion of same sex families ought to acknowledge at the outset that, similar to Indigenous family structures, there is much diversity amongst same sex families in terms of formation and functioning. As with Indigenous families, there may be much fluidity in relation to child care responsibilities. It is clear that many lesbians, and to a lesser degree gay men, have children. After conducting an extensive review of the available empirical evidence on lesbian and gay parenting in Australia, Jenni Millbank concluded in 2003 that around 15 to 20 per cent of lesbians have children and although there is less information regarding the parenting patterns of men who identify themselves as gay, it appears that approximately 10 per cent of gay men are parents (Millbank, 2003:549,551). Research conducted earlier this year in Victoria found similar levels of parenting (McNair and Thomacos, 2005:41-42). The proportion of lesbians and gay men who are parents has increased over time, and the indications are that this trend will continue into the future (Millbank, 2003:549; Perlesz and McNair, 2004:129). In Australia it appears that around half the children in lesbian parented families originated in a previous heterosexual relationship, with the remainder born into a lesbian relationship, mostly through donor self-insemination (McNair et al, 2002:42-43). Most donor insemination involves a known sperm donor, and is done through a process of self-insemination rather than a clinical procedure (McNair et al, 2002:42-43). Many known donors are gay men (McNair et al, 2002:table 4 (p 44)). The donor may or may not be involved in the childs life. Research in Victoria indicates that around 40 per cent of donors to a lesbian couple are known to the parents and the child and are actively involved in the childs life, 18 per cent are known to the parents and child but not involved in the childs life, and 8 per cent are known to the parents only (McNair et al, 2002:45). As to how children are cared for in lesbian families, Victorian research indicates that domestic work and child care is relatively evenly distributed in lesbian households (McNair and Peresz, 2004:136). All this points to a diversity of family structures and child rearing arrangements made by lesbians, and to a lesser degree, gay men. As the separation rate of lesbian couples is thought to be on a par with the divorce rate in Australia (Millbank, 2003:551), re-partnering of lesbian parents creates wider webs of caring and responsibility for children, amongst lesbians, gay men, donors and parents from previous heterosexual relationships. Diversity and Fluidity This section of the article has highlighted some central features of both Indigenous family structures and functioning and same sex parented families. Broadly speaking, the web of responsibilities and arrangements to care for children are both diverse and fluid. They are likely to include adults who are not biological parents of the child, in extended kinship and community networks. In addition, more than two adults may be involved in the daily care of a child. For example, in Indigenous communities the care of children may extend to aunts and grandmothers, in addition to one or both biological parents. In queer communities, the care of children may be undertaken by fathers/donors and lesbian former co-parents, in addition to a lesbian couple. These profiles of Indigenous and queer child rearing practices have been mainly constructed from qualitative studies and sources. Some quantitative data has been included, but broader quantitative material compiled by the Australian Bureau of Statistics (ABS) has not been used. Although the ABS does collect data on the numbers of people who identify as Indigenous, the composition and characteristics of Indigenous households (ABS, 2001a), and the number of people who identify themselves as living in a same sex relationship (ABS 2001b), this material is of limited use. Notably, none of it directly addresses the child rearing practices of Indigenous families and queer families. In addition, two sources of difficulty arise in relation to the data on the size of the Indigenous population, and the number of people who report living in a same sex relationship. First, the ABS data is thought to present significant under-reporting on both counts (Aboriginal and Torres Strait Islander Social Justice Commissioner, 2003:Appendix 1; McNair et al, 2002:40). Moreover, a focus on numbers can lead easily, consciously or unconsciously, to a view that the caring responsibilities within Indigenous and queer communities are marginal issues, not warranting serious attention, as the size of these populations is small relative to the Australian population. For these reasons qualitative research has been preferred over such quantitative data. Work and Family Literature and the Difference a Non-Normative Lens Makes Barbara Pococks Work/Life Collision explores, through ten chapters, dissonance between the demands of the labour market over individuals, and their aspirations, and lived experiences, of family life, and in particular, caring work. Pocock describes in chapter one the parameters of the book: Some will find the concentration [of the book] upon households with dependants, and the primary focus on the relations between work and care too narrow missing an analysis of the diversity of household types, for example, beyond heterosexual and conventional family norms. This may be so. There are examples of homosexual parents in the qualitative study groups, along with male and female single-headed households. These differences are not the main focus of the study, however, which takes as its primary analysis the complex relations between life, care and work across a range of household. Class factors also differentiate experience: households with different levels of wealth and income experience the work/life squeeze in significantly different ways. While these [differences] are important, the primary focus here is upon the impact of work on care and vice versa (emphasis added) (Pocock, 2003:12). Although the book purports to examine the work/care collision per se, across a range of households, the way this passage identifies and deals with homosexuality, sole parenting and class renders the two adult heterosexual couple with children as normative. Homosexuality, sole parenting and class are constituted in the passage as differences that are not the main focus of the study. This process of identifying difference in this way, and especially as identifying it as not included in a study whose primary focus is upon the impact of work on care and vice versa, reflects a broader process through which two parent heterosexual families are assumed and constituted as the normative subjects in the work and care debate. Difference does not exist in an abstract sense. It is defined in contrast to a benchmark. The problem in the way that Pocock has defined the difference of homosexuality etc, is that it naturalises the point from which difference is measured the heterosexual, two parent household with dependant children. These types of household are produced as normative - as the natural subjects of the work and family field and relationships that do not fit this form are constituted as other (Graycar and Morgan, 2002:28-30; Berns, 2002:4-6). In its acceptance of this privileging of heterosexual relationships in a nuclear family form, the Work/Life Collision is itself implicated in the production of this ordering. The Work/Life Collision draws its empirical basis from a number of earlier research projects, including some of Pococks own, in addition to statistical data sets produced by the ABS. It is unclear how same sex families in particular are represented in much of this work. For example, the passage from Work/Life Collision extracted above records that there are some examples of homosexual parents in the qualitative study groups (Pocock, 2003:12). Although the source of this material is not stated, it seems likely that it is derived from an earlier project conducted by Pocock and her colleagues into how work shapes peoples lives, broadly defined to include paid work and unpaid work. This research used focus groups and interviews in relation to over 150 mainly women living in South Australia (Pocock et al, 2001:6). It is unclear how this material on, presumably, lesbian mothers is dealt with in the Work/Life Collision, as same sex parenting is not referred to again in the book. The ABS statistics that Pocock uses can similarly be unhelpful regarding same sex families. For example, in a central data set on families and market work used in the Work/Life Collision, it is simply unclear how same sex families have been categorized in the data, although it seems most likely they have been placed into the category of other family (ABS, 1999). These uncertainties in the pre-existing qualitative and quantitative data make the task of the researcher all the more difficult, and I would not want to minimise these matters. I do however believe that these limitations at least require an acknowledgement, and I would argue some attempt to break this self-perpetuating cycle of invisibility. Even granted the problems with these sources of data regarding Indigenous families and same sex families, incorporating throughout the text of the Work/Life Collision the issues and dynamics of the caring relationships within Indigenous communities and queer communities would strengthen the analysis and normative vision presented in the book. It would assist us to understand the work/family dynamic in its full complexity. In the words of Laura Benkov, writing about lesbian families in the US, there is a need to view such families: not as families on the margin to be compared to a central norm, but rather as people on the cutting edge of a key social shift from whom there [is] much to be learned about the meaning of family and about the nature of social change (1995:58). The impact of tensions between market work and care upon communities is explored in chapter three of the Work/Life Collision. Pococks thesis is that community has thinned and has relocated from the neighbourhood to the workplace, and that this is to the detriment of those not engaged in paid labour, such as full-time carers and elderly people. The analysis presented in the chapter would be strengthened through engaging with the ways in which arrangements for caring for children within Indigenous communities, and same sex families and relationships, build community away from the workplace. An examination of these experiences would provide a useful counterpoint to the main argument of the chapter. Although the chapter includes a short discussion of empirical evidence that Aboriginal women were more likely to rely on extended family and community for child care needs than the market, this is not well integrated into the general theme of the chapter regarding a contraction of community (Pocock, 2003:66). In addition to exploring the impact of work/life collision on community, Pocock addresses the ways in which tension between work and family harms love and intimacy (Pocock, 2003: chapter 5). The text discusses the gender dimension of domestic and care work in Australia, which, as Pocock documents, has barely changed over the past 10 years. The relationships that Pocock is writing about are heterosexual and nuclear, though this is not explicitly articulated. It is interesting to contrast this picture with what is known about how lesbian households negotiate the allocation of these tasks. Could the more even distribution of work in lesbian families say something about how heterosexuality and masculinity are constructed in Western societies? Might this difference inform discussion about the decline in the national birth rate, in contrast to the increase in parenthood, and the greater sharing of responsibilities, within queer communities? Pocock sets out her normative vision for the immediate and longer term in the final chapter of her book. This program contains missed opportunities. In Countering the Collision: What We Can Do Now, Pocock articulates six principles to guide reform. The second criterion is titled real choice: a menu of options that accommodates diverse situations. Under this sub-heading Pocock discusses the need to ensure that policy initiatives and reform penetrate to the workplace level, and do not merely remain formal entitlements existing only on paper. She states that [o]f course all options should be equally available to men and women (except where physical differences are in play, for example, breast feeding and birth) (Pocock, 2003:245). This guiding principle contains a level of recognition of both diversity and the desirability of a gender neutral approach, but it does not explicitly and clearly provide a statement that policy ought to value all families and caring relationships. Without such a statement, diversity is easily read to mean gender neutrality. The silence about issues beyond gender is disappointing. A clear and explicit articulation of the need to include all families and caring relationships in reform measures would provide a useful reminder to ourselves, and indeed the federal government (which clearly needs to be constantly reminded), that we are concerned with all families, and not just the Western nuclear family form. Pococks Work/Life Collision has been chosen to examine for a number of related reasons, outlined in the introduction to this article. It is a recent metastudy of work in the field, by a highly regarded scholar. One of the points Pocock makes in the final chapter in her book is that policy and institutions are running behind peoples actual behaviours regarding work/family life. I would add that the field of scholarship of work/family, in which the Work/Life Collision is a central text, is also running behind peoples actual behaviours, in important ways. Legal Rules Regarding Workers with Family Responsibilities and the Difference a Non-Normative Lens Makes Many legal rules across a broad range of areas of labour law assume families and caring structures that marginalize both Indigenous values and the practices of child rearing in queer communities. These problems are important limitations in the way the legal rules have been drafted, both through legislation and in decisions. This section of the article examines some of these rules in the federal Workplace Relations Act 1996 (Cth) and the Sex Discrimination Act 1984 (Cth). This is followed by an examination of the family/carers leave test case of 1994/1995, and the family provisions test case recently decided by the Australian Industrial Relations Commission. Legislative Rules Regarding Workers with Family Responsibilities The Workplace Relations Act contains three main sets of provisions regarding work/family nexus. The first grouping relates to the principle of non-discrimination. Awards and certified agreements must not, in most circumstances, contain provisions that discriminate on grounds including race, sex, sexual preference, marital status and family responsibilities (s 143(1C)(f), (1D), s 170LU(5), (6)). In relation to existing awards and certified agreements, the Act provides a review process regarding clauses that would contravene the Sex Discrimination Act 1984 (Cth) (s 113(2A), (5), s111A). Australian Workplace Agreements are likewise prohibited from including discriminatory content (s 170VG(1)). In addition, the Act gives certain groups of employees a right to seek a remedy where their termination of employment was related to a discriminatory ground, including their race, sex, sexual preference, marital status or family responsibilities (s 170CK(2)(f)). A second set of provisions in the Workplace Relations Act requires that the Australian Industrial Relations Commission (Commission) and the Employment Advocate fulfill their functions under the Act in a way that furthers particular objectives set out in the legislation. These objectives include assisting employees to balance work and family, and helping to prevent and eliminate discrimination on a range of grounds including race, sex, sexual preference, marital status and family responsibilities (s 3). The Commission is additionally directed to take account of the principles embodied in the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the ILO Workers with Family Responsibilities Convention (1981, No 156) (s 93, s 93A). The Employment Advocate is directed to have regard to the particular needs of identified groups of workers, including women and workers from non-English speaking backgrounds, in addition to being required to assist workers with family responsibilities (s 83BB(2)). The concept of family responsibilities in these two sets of statutory provisions may have limited application in relation to Indigenous child rearing practices, and the caring arrangements in same sex parented families. Although the enumerated grounds of discrimination in the Workplace Relations Act include race and sexual preference, it is unclear to what extent these would shape the concept of family responsibilities, ensuring it take on a non-discriminatory meaning. Also unclear is the extent to which the grounds of race and sexual preference would themselves be interpreted to cover discrimination based on caring responsibilities towards children in Indigenous families and same sex relationships, given the existence of an explicit family responsibilities ground that might be interpreted to cover the field regarding responsibilities towards children. Decisions under the Workplace Relations Act simply have not addressed these issues. The concept of family responsibilities is not defined in the Workplace Relations Act. It is however given some articulation in the Workers with Family Responsibilities Convention. The Convention delineates its scope around dependent children and immediate family, which it defines as being family responsibilities (art 1). The Convention explicitly leaves it to each country to articulate a meaning of dependent child and immediate family (art 1(3), art 9). It does however recite the Declaration of Philadelphia which provides some recognition of the need to accommodate differences based on race. These concepts have been more fully articulated in the Sex Discrimination Act 1984 (Cth). Notably, along with the Convention, the Commission is required to take this set of anti-discrimination principles into account. The Sex Discrimination Act defines family responsibilities to mean the responsibility to care for or support a dependent child of the employee or any other immediate family member (s 4A). The link between the Act and the Family Responsibilities Convention is clear. The category of immediate family member is defined by reference to heterosexual family units, albeit in a form slightly broader than the nuclear family. The heterosexed character of immediate family is articulated through the criteria of spouse, de facto spouse and child (s 4A, s 4(1)). [S]pouse and de facto spouse are defined in ways that are clearly heterosexed.  [C]hild is defined to include an adopted child, a step-child or an ex-nuptial child (s 4A(2)). These meanings of child make sense in a heterosexual context of marriage and step-families; they make only limited sense in a same sex context. Notably, adoption is not an option for most same sex families, as in most State jurisdictions in Australia female partners of birth mothers are not legally able to adopt a child of the relationship (Victorian Law Reform Commission; 2003, paragraphs 5.59-5.64). Although some extended kin relationships are covered in the concept of immediate family member, others are not. So, for example, although the responsibilities of an Indigenous grandmother or grandfather to care for a grandchild falls within the meaning of immediate family, the responsibilities of an Aunt or cousin to care for a child does not. In contrast to the category of immediate family, the criteria of dependent child of the employee appears to have potentially broader application. [D]ependant child is defined to be a child who is wholly or substantially dependent on the employee (s 4A(2)). This might cover an Indigenous Aunt who has the day to day care of a child, and a lesbian non-birth mother. Two matters however militate against such an interpretation. First, family responsibilities is defined as being a dependent child or any other immediate family member, suggesting that the dependent child is intended by Parliament to be himself or herself an immediate family member (s 4A(1), emphasis added). Secondly, as discussed above, the concept of child is itself defined by reference to concepts that make sense in a heterosexual context (s 4A(2)). Ultimately though, this is all supposition, as these issues have not been tested in adjudication. It can be concluded nonetheless that there are serious questions about the extent to which the family responsibilities ground in the Sex Discrimination Act, and by inference the Workplace Relations Act, operate to protect the arrangements to care for children in Indigenous and same sex parented families. A third set of provisions in the Workplace Relations Act regarding the work/family nexus relate to statutory entitlements regarding unpaid maternity and paternity leave. First introduced in the private sector in 1979 through the award system (Maternity Leave Test Case), the right to parental leave exists today, as both an award entitlement and as a direct legislative right, having been enacted with the Industrial Relations Reform Act 1993 (Cth), and continued in virtually identical terms with the Workplace Relations Act (Part VIA, Div 5, Sch 14, regs 30E-30ZD, Sch 1A). The right is for an employee who gives birth, or her spouse, with at least 12 months service, to take up to a total of 52 weeks leave without pay in relation to maternity or adoption, and return to the same or an equivalent position as was held prior to going on leave. Parental leave is defined in the legislation as being maternity leave and paternity leave. Maternity leave is stated to be for employees in respect of her pregnancy or the birth of her child and paternity leave is specified as being an entitlement of an employee in respect of the birth of a child of his spouse. In these provisions the concept of spouse is explicitly defined to include marriage and heterosexual de facto relationships, and exclude same sex partners (s 170KA, Sch 14). These statutory rules present a very strong version of the nuclear mother-father family and fail to provide an entitlement in a range of Indigenous caring arrangements, and caring practices in queer communities. For example, grandmothers and Aunts in Indigenous communities, who are the primary carers of a baby, are not entitled to unpaid parental leave. Nor is a biological father, unless he is the spouse or de facto spouse of the childs mother. Nor are lesbian co-parents (non-birth mothers), and nor would a babys biological father be entitled to paternity leave, should he wish to be the primary carer of the baby, as it is unlikely that he would be considered the lesbian birth mothers de facto spouse. Award Test Case Standards In the family/carers leave test case of 1994/1995 the Commission sought to address Indigenous and lesbian and gay responsibilities to care for children and other family members, but ultimately did so in a way that marginalized those practices, identifying them as arrangements outside the concept of immediate family (Family Leave Test Case November 1994; Personal/Carers Leave Test Case Stage 2 November 1995). The test case permits employees to aggregate their paid sick and bereavement leave entitlements (to a maximum of 5 days per year) to care for an ill family member for whom they are responsible. [F]amily member is defined as covering both a member of the employees immediate family (as defined in the Sex Discrimination Act 1984) and a member of the employees household. A similar entitlement exists additionally in a statutory form for Victorian employees (WR Act Sch 1A). As discussed above, the concept of immediate family is defined in the Sex Discrimination Act through adult heterosexual relationships of spouses and de facto spouses (s 4A, s 4(1)). The broader coverage in relation to a member of the employees household was explicitly conceptualized by the Commission for the purpose of covering a wider range of caring relationships than the Sex Discrimination Acts immediate family. Specifically, the need to extend the award test case standards to Indigenous caring arrangements and people in same sex relationships was raised by intervenors in the hearing, including the NSW Aboriginal Womens Legal Resources Group and the Australian Council for Lesbian and Gay Rights. Both the government, and initially the ACTU, supported limiting family leave to those relationships covered in the Sex Discrimination Act. Ultimately the Commission agreed with the intervenors on the need to formulate the new family/carers leave standard in a non-discriminatory manner, particularly given the Workplace Relations Act requirement that industrial instruments not discriminate on the ground of race and sexual preference. Some Indigenous arrangements in relation to children, such as an employee caring for a grandchild, will be covered by the concept of immediate family. Others, such as the care of a niece or nephew by the employee will not. It is hard to imagine that any arrangements to care for children in same sex relationships will be covered by the category of immediate family. The second concept of member of the employees household will cover a wider range of both Indigenous and queer child care arrangements, but notably only where the child is a member of the employees household. In contrast, the potential for the requirement of a residence-type link is not a component of the immediate family concept. In these different ways the family/carers leave standard offers a lesser entitlement in relation to many Indigenous arrangements and to queer families compared to heterosexual, nuclear, family structures. Not only does it offer a more constrained legal entitlement, it sends a message that many Indigenous and queer families are merely households, with the concept of immediately family being reserved for heterosexual nuclear relationships. The Family Provisions Test Case, handed down by the Commission in August this year, built on these award entitlements regarding work/family in important ways (Family Provisions Test Case, 2005). The claims pursued by the ACTU fell into two main groupings. The first related to parental leave, and included a claim to increase unpaid parental leave from 12 months to 2 years, an increase in the length of parental leave that parents can concurrently take, and a right for parents returning from parental leave to work on a part-time basis until their child reaches school age. The second group of claims related to a right of an employee to request a change to working hours and days to accommodate caring responsibilities, and additional leave for caring purposes, including emergency leave. The main written submission made by the ACTU in the case contained no reference or discussion of the need to extend protection to Indigenous family and caring arrangements, or the caring arrangements in same sex parented families, in either the discussion of the changing social context of families in Australia (section 3), or elsewhere in the 363 page submission (ACTU: 2004). The ACTU claim sought to build on existing parental and other award entitlements relating to leave, such as family/carers leave. Although this incremental approach is understandable as a matter of strategy, the effect of this approach was an endorsement of the limited understanding of parental leave as being leave for biological parents and spouses alone, and the immediate family and member of the household distinction of the family/carers leave test case decision. Unsurprisingly, given the way the claims were framed and the content of the submissions made to it, the decision of the Commission continued these assumptions and frameworks of the past. It formulated a provision that gives a right to employees who are entitled to parental leave under the award to request an extension of unpaid parental leave from 12 months to two years, to extend the period of parental leave that parents can simultaneously take to a maximum of eight weeks, and to request a return to work on a part-time basis until their child reaches school age. Employers are only entitled to refuse genuine requests on reasonable grounds ([396]). Additionally, employers have an obligation to take reasonable steps to communicate with employees on parental leave about significant changes at the workplace (Appendix 3). In these different ways, the highly problematic character of parental leave as being limited to biological parents and heterosexual married or de facto spouses, continues to impact in an exclusionary way on many Indigenous and queer child rearing arrangements. In addition, the parties reached agreement in conciliation regarding emergency leave, and also new model clauses on sick and bereavement leave. The Commission endorsed this agreement and included it as Appendix 2 to the decision. The agreement adopts a framework linking the entitlements to bereavement leave and the need for emergency care to a member of the employees immediate family or the employees household. Notably, immediate family is defined in an explicitly heterosexual manner. One glimmer of hope appears in the agreement. It records in its opening paragraph that the parties agree to jointly review the existing definition of immediate family within 6 months to ascertain whether there are any discriminatory aspects. At this time at least, this aspect of the test case continues to define same sex relationships and caring responsibilities as household only, reserving the discursive power of immediate family for heterosexual relationships. This section of the article has examined some of the main legal rules regulating the work/family nexus in Australia. These minimum entitlements, against which enterprise bargaining is envisaged to take place, have a differential impact on Indigenous and queer families, relative to mother-father family structures of caring for children. The argument of this article is that these inadequacies ought to inform discussions of the legal rules, and analyses of their adequacy and effectiveness. Conclusion This article has been written to engage with the normative view of how children are cared for, presented in much work and family literature, and legal rules. The vision is largely one of children within heterosexual nuclear, or slightly extended, families. After setting out some basic descriptive information about Indigenous caring arrangements and values, and the dynamics of same sex families, the article turned to examine Barbara Pococks Work/Life Collision. This text formed a type of case study, permitting a consideration of how an understanding of Indigenous child rearing practices, and the child care arrangements within queer families and communities, might enrich and deepen our understanding of the field. It also gave a live illustration of the limitations with the some of the existing data in this area we simply do not know how such non-normative families and arrangements are represented. The final section of the article sought to illustrate the importance that a non-normative lens makes in considering the scope and effectiveness of some of the main federal legislative rules that regulate the work/family nexus. This examination revealed the rules to assume and be based around a mother-father model of child rearing, to the detriment of the lived experiences of Indigenous and queer communities. The article argued that these limitations within the legal rules themselves are important to acknowledge and critique, and hopefully, one day, to rectify. Aboriginal and Torres Strait Islander Social Justice Commissioner (2003), Social Justice Report 2003. Sydney: Human Rights and Equal Opportunity Commission. Australian Bureau of Statistics (1999), Labour Force Status and Other Characteristics of Families. Canberra: Australian Bureau of Statistics. Australian Bureau of Statistics (2001a), Population Characteristics: Aboriginal and Torres Strait Islander Australians. Canberra: Australian Bureau of Statistics. Australian Bureau of Statistics (2001b), 2001 Census of Population and Housing. Canberra: Australian Bureau of Statistics. Australian Council of Trade Unions (2004), Submission to the Family Provisions Test Case, November 2004. Melbourne: Australian Council of Trade Unions. Benkov, L. (1995) Lesbian and Gay Parents: from Margin to Center, in K. Weingarten (ed.) Cultural Resistance: Challenging Beliefs about Men, Women and Therapy. New York: Haworth. Berns, S. (2002) Women Going Backwards: Law and Change in a Family Unfriendly Society. Aldershot: Ashgate Publishing. Boers, P. (2004) Same Sex Parenting, Paper Presented at the Law Conference, College of Law, Sydney, cited in McNair, R. (2004) Outcomes for 鱨վ Born of ART [Assisted Reproductive Technology] in a Diverse Range of Families, Occasional Paper. Melbourne: Victorian Law Reform Commission p 24. Bourke E. and C. Bourke (1995) Aboriginal Families in Australia, in R. Hartley (ed.) Families & Cultural Diversity in Australia. St Leonards, NSW: Allen & Unwin Pty Ltd. Callus, R., Morehead, A., Cully, M. and J. Buchanan (1991) Industrial Relations at Work, The Australian Workplace Industrial Relations Survey. Canberra, ACT: AGPS. Collard, D., Crowe, S., Harries M. and C. Taylor (1994) The Contribution of Aboriginal Family Values to Australian Family Life, in J. Inglis and L. Rogan (eds.) Flexible Families: New Directions in Australian Communities. Leichhardt, NSW: Pluto Press. Davis, R. and J. Dikstein (1997) It Just Doesnt Fit: The Tiwi Family and the Family Law Act Can the Two Be Reconciled?, 22 Alternative Law Journal 64. Dewar, J. (1997) Indigenous 鱨վ and Family Law, 19 Adelaide Law Review 217. Eversley, R. (1984) The South-West Aboriginal and Family Law, Australian Family Research Conference Proceedings, No 11: Family Law, extracted in McRae, H., Nettheim, G., Beacroft, L. and L. McNamara (2003) Indigenous Legal Issues: Commentary and Materials. Sydney: Lawbook Co, p 576. Graycar, R. and J. Morgan (2nd ed., 2002) The Hidden Gender of Law. Sydney: The Federation Press. 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Dempsey (2003) Exploring Diversity in Lesbian-Parented Families, Paper 1: Family Formation and Womens Roles, Conference Paper delivered at the 2003 Australian Institute of Family Studies Annual Conference. McNair, R., Dempsey, D., Wise S. and A. Perlesz (2002) Lesbian Parenting: Issues, Strengths and Challenges, 63 Family Matters 40. McRae, H., Nettheim, G., Beacroft, L. and L. McNamara (2003) Indigenous Legal Issues: Commentary and Materials. Sydney: Lawbook Co. Melbourne Institute of Applied Economic and Social Research (2002) HILDA Survey Annual Report 2002. Melbourne: Melbourne Institute of Applied Economic and Social Research, University of Melbourne. Millbank, J. (2003) From Here to Maternity: A Review of the Research on Lesbian and Gay Families, 38 Australian Journal of Social Issues 541. Morehead, A., Steele, M., Alexander, M., Stephen K. and L. Duffin (1997) Changes at Work: The 1995 Australian Workplace Industrial Relations Survey. Canberra, ACT: AGPS. Neilsen, J. and G. Martin (1998) Indigenous Australian Peoples and Human Rights, in D. Kinley (ed.) Human Rights in Australian Law. Sydney: The Federation Press. Perlesz, A. and R. McNair (2004) Lesbian Parenting: Insiders Voices, 25 Australian and New Zealand Journal of Family Therapy 129 at 129. Pocock, B. (2003) The Work/Life Collision: What Work is Doing to Australians and What To Do 鱨վ It. Sydney: The Federation Press. Pocock, B. (2001) Having a Life: Work, Family, Fairness and Community in 2000. Adelaide: Centre for Labour Research, University of Adelaide. Ralph, S. (1998) The Best Interests of the Aboriginal Child in Family Law Proceedings, 12 Australian Journal of Family Law 1. Thorpe, D. (1994) Evaluating Child Protection, Buckingham: Open University Press. Victorian Gay and Lesbian Rights Lobby,  HYPERLINK "http://www.vglrl.org.au/" http://www.vglrl.org.au/ accessed 14 August 2005. Victorian Law Reform Commission (2003) Assisted Reproduction & Adoption: Should the Current Eligibility Criteria in Victoria be Changed? Consultation Paper, Melbourne: Victorian Law Reform Commission. Family Leave Test Case November 1994 (1994) 57 IR 121. Family Leave Test Case, Supplementary Decision (1995) AILR 3-060. Family Provisions Test Case 2005 (unreported, Full bench of AIRC, 8 August 2005, PR082005). Maternity Leave Test Case (1979) 118 CAR 218. Personal/Carers Leave Test Case Stage 2 November 1995 (1995) 62 IR 48. Re CP (1997) 21 Fam LR 486. Convention Concerning Equal Opportunity and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (International Labour Office, 1981, No 156). * Law School, University of Melbourne, member of the Centre for Employment and Labour Relations Law, University of Melbourne. I thank the referee and also Jill Murray for very useful thoughts on the article in its original form.     PAGE  PAGE 1  This article is drawn from my PhD studies in the Centre for Socio-legal Research, Law School, Griffith University.  Self-insemination is the insertion of fresh semen, using a needle-free syringe, into the vagina of the woman intending to conceive, usually performed at home by the woman herself, or her same-sex partner. Alternatively, insemination may be performed at a medical clinic by a registered fertility specialist. In that setting the donor of the semen may be known or may be anonymous (McNair et al, 2002:49).  The Convention is contained in Schedule 12 to the WR Act, and its full title is Convention Concerning Equal Opportunity and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities.  Although spouse is not defined in the Sex Discrimination Act, it now seems clear that it cannot include a same sex marriage solemnized in a foreign country, since the enactment of the Marriage Amendment Act 2004 (Cth) defined marriage as the union of a man and a woman (s 5(1) Marriage Act 1961 (Cth)). 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