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 Courtâs historical origins within a masculinised federation and its accompanying Constitutionâwhich 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 Australiaâs 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 âletting inâ.
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 framersâ 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 âDamascus Road Miracleâ 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) âwhich 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.â 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 âthe Constitution did notâand still does notâmake adequate provision for us. It has completely failed to protect our inherent rights as the first peoples of this countryâ. 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 âVoice, Treaty and Truthâ to establish a ânew relationship between First Nations and the Australian nation based on justice and self determination where Indigenous cultures and people can flourishâ (available at https://ulurustatement.org).
Womenâs 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 âthe problem is not what Australiaâs Constitution says about women, but what it fails to sayâ. This silence has ongoing implications for the way in which women are situated within Australiaâs constitutional framework. Four principles or concepts underpin Australiaâs 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 Australiaâs Constitutional framework. That is, in terms of the very concepts underpinning the Constitution (e.g. what it values and thus seeks to protect), womenâs concerns and perspectives have been largely elided. It was certainly not envisaged that women would exercise legal or political authority within the new federationâin 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 Australiaâs 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 âbirth of a nationâ and the men responsible have since been commemorated as the âfounding fathersâ. Yet that is not to say that the federation was entirely âmotherlessâ, as has been noted by a number of scholars of history, law and politics in their efforts to reveal womenâs 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 âfathersâ 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 âordinaryâ 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 ânation-buildingâ process? The story of women as âfounding mothersâ is one in which this contribution to ânation-buildingâ must be understood.
Indeed, despite being formally excluded (save in South Australia), womenâs 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 âwithin such political debates that bids for a say in defining the national character, and of promoting images of what Australia might become, were madeâ (Grimshaw et al. 1994: 181). Not the least of these arguments concerned the issue of gender. Writing about the Federation movementâs concern for preserving white society, Grimshaw et al. argued that the âracial exclusionist appealâ in debates around federation âwas conducted in masculinist terms,â 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 Australiaâa 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, âwithin this masculine federation women would have to be citizensâ,2 though the rationale was less about womenâs rights as such and more about âwhite womenâs common links with their menfolkâ (Grimshaw et al. 1994: 192â193). For at least some of the male politicians who welcomed (white) womenâs political participation, âwomenâs main contribution was not forecast as active citizenship, but prolific childbearingâ (Grimshaw et al. 1994: 193).
2 There is some slippage here between notions of âcitizenshipâ and the âfranchiseâ. 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 Davidsonâs (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 Australiaâs 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 Australiaâs 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 âwomen argued for the vote, not in order to become citizens but because they were already citizensâ. Thornton (1995b: 200) notes that citizenship âis the status determining membership of a legally cognisable community, although it involves more than a passive belongingâ 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 âthat enfranchisement bestowed upon women the entire complement of formal rights enjoyed by menâ (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 womenâs 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 womenâs concerns at the time. Irving (1996: 15â16) highlights these contributions, reasoning that their input can be seen in the Constitutionâs preamble and s 113, but arguing that âthe presence of women is most clearly identified in section 41â. 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 womenâs suffrage were ultimately unsuccessful in having womenâs 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 âforcing the delegates to touch upon matters they normally avoidedâ:
3 Rubensteinâs (2004b) examination of Justice Gaudronâs 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 âcitizenship is a statutory, not a constitutional conceptâ, her approach âunderlines citizenship as a fundamental criterion for determining membership of the body politicâ. Rubensteinâs (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. Oldfieldâs (1992: 65) account of the relationship between Commonwealth and State voting rights for white women noted that âthe 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-boxâ.
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 âChinamenâ nor âinfants of sixteenâ 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...