Law, Women Judges and the Gender Order

Lessons from the High Court of Australia

Kcasey McLoughlin

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000475531
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book seeks to understand how women judges are situated as legal knowers on the High Court of Australia by asking whether a near-equal gender balance on the High Court has disrupted the Court's historically masculinist gender regime.

This book examines how the High Court's gender regime operates once there is more than one woman on the bench. It explores the following questions: How have the Court's gender relations accommodated the presence women on the bench? How have the women themselves accommodated those pre-existing gender relations? How might legal judgments and reasoning change as a result of changing gender dynamics on the bench? To develop answers to these (and other) questions the book pursues a methodology that conceptualises the High Court as an institution with a particular gender regime shaped historically by the dominant gender order of the wider society. The intersection between the (gendered) individuals and the (gendered) institution in which they operate produces and reproduces that institution's gender regime. Hence, the enquiry is not so much asking 'have women judges made a difference?' but rather is asking how should we understand women judges' relationship with the law, a relationship that is shaped as much by the individual judge as by the institutional context in which they operate.

Scholars, legal practitioners and researchers interested in judicial reasoning, gender diversity and the legal profession, gender and politics will be interested in this book because it breaks new ground as a case study of a Court's gender regime at a particular time.

Chapter 1

The masculinist foundations of Australia’s legal and constitutional framework

DOI: 10.4324/9780429288531-2

As a matter of history, the way in which law in Australia was invented, interpreted and enforced produced and reproduced a masculinist legal system. The High Court of Australia is readily identifiable as an institution shaped by a masculinist gender regime. This regime has its genesis in the Court’s historical origins within a masculinised federation and its accompanying Constitution—which was created without the input of women as drafters or as interpreters. In this chapter I set out a brief history of the masculinist foundations of Australia’s Constitutional framework to give substance to my argument that these terms are both applicable and appropriate for developing an analysis about what sort of difference (if any) a near-equal gender balance on the High Court judicial bench has made. Setting out this history, albeit briefly, provides important context for the analysis that follows. This chapter shows that women were excluded from building these foundational legal institutions and this necessarily sets the scene for examining the conditions of their later entry or ‘letting in’.

The Australian Constitution, an act of the British Imperial Parliament, was drafted at a series of conventions during the 1890s, and in crafting a federal system of government the framers’ intentions in many respects were reflective of the colonial interests of the time. Importantly, these interests did not align with the traditional inhabitants of the land, Indigenous Australians, who had inhabited what would become known as Australia for at least 65 000 years prior to the arrival of English colonists in 1788.¹ The federal compact emerged as a matter of political expediency, reflecting the anticipated trade and defence benefits that would come from federating British colonies rather than a ‘Damascus Road Miracle’ slouching towards democracy (Crisp 1983 quoted in Blackshield and Williams 2010: 122). The Constitution could not be said to be preoccupied with individual rights but rather it reflects the primary aim in uniting separate British colonies into one federal compact. The democratic impulse notwithstanding, the political foundations of the Constitution were exclusionary with respect not only to race and class but also gender. The masculinist political ethos meant that women were formally excluded from almost every aspect of the emergence of modern Australia.

1 As Moreton-Robinson (2009: 64) explains, the origins of sovereignty in Australia rest on the legal fiction of Terra Nullius (land belonging to no-one) ‘which functioned as a truth within a race war of coercion, murder and appropriation carried out by white men in the service of the British Crown.’ As the then Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda (2011: 4) explained, this fiction, and the explicit exclusion of Aboriginal and Torres Strait Islander peoples from nation building processes has had devastating ongoing implications ‘the Constitution did not—and still does not—make adequate provision for us. It has completely failed to protect our inherent rights as the first peoples of this country’. There has been growing acceptance that this history needs to be redressed through Constitutional reform but to date no such structural reforms have been adopted. See Uluru Statement from the Heart (2017) which calls for ‘Voice, Treaty and Truth’ to establish a ‘new relationship between First Nations and the Australian nation based on justice and self determination where Indigenous cultures and people can flourish’ (available at https://ulurustatement.org).

Women’s exclusion from the drafting of the Constitution shaped the document that emerged in important ways. One result was that the Constitution is silent on the topic of women. Reflecting on these silences, Priest and Williams (2010: 417) note ‘the problem is not what Australia’s Constitution says about women, but what it fails to say’. This silence has ongoing implications for the way in which women are situated within Australia’s constitutional framework. Four principles or concepts underpin Australia’s Constitutional framework, namely federalism, responsible government, representative democracy and the separation of powers. In different but nonetheless significant ways, each of these concepts reflects the masculinist foundations of Australia’s Constitutional framework. That is, in terms of the very concepts underpinning the Constitution (e.g. what it values and thus seeks to protect), women’s concerns and perspectives have been largely elided. It was certainly not envisaged that women would exercise legal or political authority within the new federation—in fact they were formally excluded from doing so. On one view it might be easy to dismiss these features as a matter of history, particularly given more recent events which have seen women exercising authority at the peak of Australia’s Constitutional framework. But, as I will examine in this chapter, the very text and structure of the Constitution, particularly with respect to the system of government it creates, continues to bear the masculinist hallmarks of its creation.

The events leading to the formation of the Australian federation are oftentimes referred to as the ‘birth of a nation’ and the men responsible have since been commemorated as the ‘founding fathers’. Yet that is not to say that the federation was entirely ‘motherless’, as has been noted by a number of scholars of history, law and politics in their efforts to reveal women’s contribution to nation-building (see e.g. Irving 1996, 1997, 2007; Cass and Rubenstein 1995; Grimshaw et al. 1994). As Irving (1996: 1) has noted:

The voices of those women who were involved in Federation cry out to be heard. How is it possible that there were ‘fathers’ without mothers? How could a nation be born without a female presence? Where were the thinking, organizing, active women, those we know of as tireless in the suffrage campaigns of their time?… And what of the ‘ordinary’ women, caught up in the daily contribution of bringing babies into the world, nurturing and educating them, and doing the bulk of the charitable work as well? Is this not part of the ‘nation-building’ process? The story of women as ‘founding mothers’ is one in which this contribution to ‘nation-building’ must be understood.

Indeed, despite being formally excluded (save in South Australia), women’s groups sent petitions to the series of Constitutional Conventions which were held during the 1890s to allow men delegates to debate and draft the Constitution. These constitutional debates are illuminating as to what issues seemed significant and what did not, what the framers hoped to craft, and who did and did not warrant particular attention. It was ‘within such political debates that bids for a say in defining the national character, and of promoting images of what Australia might become, were made’ (Grimshaw et al. 1994: 181). Not the least of these arguments concerned the issue of gender. Writing about the Federation movement’s concern for preserving white society, Grimshaw et al. argued that the ‘racial exclusionist appeal’ in debates around federation ‘was conducted in masculinist terms,’ the aim of which was to enhance a sense of common destiny for Australian men. As one politician proposed:

As a true federationist, I believe that the only federation that can be effective is a federation of the manhood of Australia—a truly representative federation. It is not a question of federating acres and wealth; it is a question of federating the spirit of the manhood of Australia and that is what we should seek to do.

(quoted in Grimshaw et al. 1994: 192)

Thus it came about that because two states (South Australia and Western Australia) had already given women the vote, ‘within this masculine federation women would have to be citizens’,² though the rationale was less about women’s rights as such and more about ‘white women’s common links with their menfolk’ (Grimshaw et al. 1994: 192–193). For at least some of the male politicians who welcomed (white) women’s political participation, ‘women’s main contribution was not forecast as active citizenship, but prolific childbearing’ (Grimshaw et al. 1994: 193).

2 There is some slippage here between notions of ‘citizenship’ and the ‘franchise’. Although the ability to vote is an important formal indicator of citizenship, it is perhaps important to note that the Constitution itself did not define citizenship or formally provide for it. See Davidson’s (1997) From Subject to Citizen for an analysis of the evolving notion of citizenship in Australia during the twentieth century. Moreover, these points have also been made from an explicitly feminist perspective. For example, Thornton (2000: 112) has argued that citizenship was not important to the drafters of the Constitution because their concern was fundamentally about delineating powers in the new Federation, not with individual rights. Some of these themes around the meaning of citizenship are revisited in Chapter 5.

Citizenship itself is a fraught concept within Australia’s legal framework and constructing the substance of citizenship specifically for women³ has been an ongoing dilemma in Australia (Cox 2000: 57). Citizenship itself is not defined in Australia’s Constitutional framework (and only mentioned with respect to foreign aliens), hence Australians remained subjects until the passage of specific citizenship laws (Thornton 2000). Yet citizenship is also understood as making a civic contribution and to this end Irving (1997: 158) pointed out that prior to Federation ‘women argued for the vote, not in order to become citizens but because they were already citizens’. Thornton (1995b: 200) notes that citizenship ‘is the status determining membership of a legally cognisable community, although it involves more than a passive belonging’ and it therefore encompasses rights and a degree of participation on behalf of the citizens. Enfranchisement is an obvious manifestation of participation, and in this respect liberal legalism implies ‘that enfranchisement bestowed upon women the entire complement of formal rights enjoyed by men’ (Thornton 1995b: 201). Yet this implication does not necessarily bear fruit, at least in part because citizenship itself has been defined in masculinist terms.

Another example of women’s less formal but nonetheless significant contributions to the Constitutional drafting process was that made by Catherine Helen Spence (an unsuccessful candidate for election as a South Australian delegate to the Conventions) and the Christian temperance groups in articulating women’s concerns at the time. Irving (1996: 15–16) highlights these contributions, reasoning that their input can be seen in the Constitution’s preamble and s 113, but arguing that ‘the presence of women is most clearly identified in section 41’. The inclusion of this section effectively provided the groundwork for (white) universal suffrage, as it meant that no person who had the right to vote in State elections could be deprived of the right to vote in Federal Elections. Although proponents of women’s suffrage were ultimately unsuccessful in having women’s suffrage included in the actual text of the Constitution, the inclusion of s 41 was nonetheless an important component in securing the political will and power to enact the Commonwealth Franchise Act 1902 (Cth) (Oldfield 1992: 64).⁴ Moreover, as Irving (1996: 16) discovered, the substance of the Convention debates around the wording of s 41 were particularly illuminating in ‘forcing the delegates to touch upon matters they normally avoided’:

3 Rubenstein’s (2004b) examination of Justice Gaudron’s jurisprudential contributions to Australian citizenship is apposite here. Rubenstein (2004b: 313) argued that although Gaudron J had explicitly stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162 ‘citizenship is a statutory, not a constitutional concept’, her approach ‘underlines citizenship as a fundamental criterion for determining membership of the body politic’. Rubenstein’s (2004b: 305) emphasis on the distinction between citizenship as a legal and normative concept is important here. Although citizenship has a specific legal meaning, understandings about citizenship and the demands of representative government are infused with normative ideas about what membership of the polity entails.

4 See Oldfield (1992) for a comprehensive overview of various suffrage campaigns in Australia. Oldfield’s (1992: 65) account of the relationship between Commonwealth and State voting rights for white women noted that ‘the proud boast that Australia was the second nation in the world to federally enfranchise its women ignores the fact that black women and their men in two states had to wait until 1962 to gain access to the ballot-box’.

as they grappled to find the right words for this section, so that South Australian women would not be disenfranchised but that the other States would not be forced to grant their women the vote (and at the same time to ensure that neither ‘Chinamen’ nor ‘infants of sixteen’ could be enfranchised) they argued about the nature of rights, the experimental character of Federation, the identity of the new Australian citizen, and the nature of representation.

The High Court subsequently conceived of s 41 in narrow terms as merely a transitional guarantee, rather than a right to vote. For example, in R v Pearson; Ex parte Sipka (1983) 152 CLR 254, the Court (Murphy J dissented) held that s 41 did not afford any protection of the right to vote as it wa...