The exclusion of women from financial services and the prospects of a human rights solution under Australian law

Abstract

This paper evaluates the prospects for employing the paradigm of human rights to address the continued exclusion of women from financial services in Australia. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) contains two human rights of relevance: the right to credit as an aspect of women's socioeconomic life and their right to access agricultural credit in the rural context. An examination of state party reports submitted under CEDAW considers four obstacles impeding women's access to credit: lack of land ownership, their marital status, so-called sociocultural barriers and the commercial practices of financial institutions. These obstacles are replicated to varying degrees in the local context. The existence and ambit of a human right to access financial services for women in Australia can be derived from an analysis of consumer credit law, orthodox contractual principles and antidiscrimination legislation. Although the relevant jurisprudence yields important debtor entitlements and the obligations of credit providers, it also suggests several substantive and procedural obstacles hampering the common law development of that right. More explicit resort to a human rights framework, as illustrated by other jurisdictions, is warranted and justifiable.