Visible at Last? Women and the Preamble

Visible at Last? Women and the Preamble by 

Marian Sawer*

[Chapter for John Uhr ed. The Case for “Yes” Leichhardt: Federation Press, 1999]

Visible at Last? Women and the Preamble

Marian Sawer*

A hundred years ago you had to have whiskers to be involved in drafting the Constitution (there were special exemptions for Edmund Barton and Sir John Downer). Women were not present at the drafting table – even the Hansard reporters were men, as indeed they were in the Commonwealth parliament until 1969.

Women were invisible in the document except in the form of the Queen, the font of legislative and executive power. The Queen was far removed from the women who were her Australian subjects and was, for example, opposed to women having the vote.

There was no assumption in the Constitution of women’s equality as citizens. Women were to remain excluded from many of the rights and duties of citizenship for decades after federation – jury service being but one example. At the time the Constitution was written it was popularly believed that women belonged naturally to the private sphere, men to the public. It was regarded as a knock-down argument that if women became active in public life men would arrive home to find their dinners uncooked.

Australia was not alone in ignoring women or their presence amongst its citizens in its framing document. Most democratic countries have, however, taken the opportunity when revising their Constitutions to remedy this oversight. All democracies which have revised their Constitutions since World War Two have inserted somewhere the recognition of the equality of men and women – most do it in the body of the Constitution but a number do it in the Preamble, including Australia’s former Trust Territory, Papua New Guinea. 1

Some are explicit in a way that Australians, who have been sheltered from this kind of thing in constitutional discourse, would find confronting. For example, Finland declares that ‘Equality of the sexes shall be promoted in social activities and in working life, particularly in the determination of remuneration…'(1995). Malta also singles out equal pay in its Constitution, following from a more general clause: ‘ The State shall promote the equal right of men and women to enjoy all economic, social, cultural, civil and political rights…(1991).

Australia has been committed to legal recognition of the equality of men and women since it signed the UN Convention on the Elimination of All Forms of Discrimination against Women CEDAW) in 1980 and ratified it in 1983. Article 2 (a) of CEDAW required States Parties ‘To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation.’ This has still not been done by Australia, unlike the other States’ parties (more countries have ratified this Convention than any other).

It is a matter of history that, despite its imperfections, Australia was a pioneering democracy and this should be part of our self-definition. The Australian colonies became strong supporters of the ideas of the Chartists, many of whom migrated to the goldfields after the failure of their movement in Britain. Ideas of the political philosopher, John Stuart Mill, also found fertile ground in Australasia and were first put into practice here. But despite the fact that our democratic experiments were once a magnet for overseas visitors, our Constitution does not admit that we are a democracy or have responsible government – it maintains the fiction that all power in Australia flows from the British Crown.

Not only have we failed, in the document that frames our political system, to mention that power flows from the people – we have also failed to mention the principles that underpin democracy. As Mill pointed out in his essay ‘The Subjection of Women’ (1869), the equality of men and women is one such basic democratic principle. Without it democracy cannot flourish – the family becomes a school in the vices of despotism rather than the virtues of democracy.

The forthcoming Referendum provides the opportunity for Australia finally to describe itself as a democracy and subscribe to underlying democratic principles such as the equality of men and women. It is vital that this democratic self-understanding be part of our Constitution and hence part of citizenship education.

The half-elected Constitutional Convention of February 1998 endorsed the idea that a new Preamble should be submitted to the people along with the question concerning the head of state. Both Government and the Opposition agreed. The Convention agreed on

Arguments about Gender Equality

While the need to include the principle of the equality of men and women in the Constitution may have seemed obvious in other democratic countries this is not necessarily the case in Australia. At the Constitutional Convention of February 1998 gender equality was not one of the principles directly endorsed for inclusion in a new Preamble – it was one of three elements regarded as ‘more controversial’ that were recommended for further consideration.

It is difficult to discover why the Preamble Working Party at the Constitutional Convention regarded the equality of men and women as ‘controversial’, unless they were confusing Australia with Afghanistan. This principle has been included in all recent government statements of the core values of Australians.2 For example, changes to the Australian Citizenship Act were introduced in this way: ‘ Australia is a parliamentary democracy committed to providing equality before the law, freedom of the individual, freedom of speech and religion, equality between men and women and equality of opportunity for all’ (Senate Hansard 6 May 1993). Equality of men and women is also fundamental to the international human rights instruments to which we are a party, such as the International Covenant on Civil and Political Rights.

There are arguments against commitment to the principle of the equality of men and women in the Preamble, but they seem unlikely to have been what swayed the Working Party. The main arguments have been as follows:

(1) The inclusion of a non-justiciable commitment to the principle of the equality of men and women in the Preamble will become a substitute for a substantive equality guarantee in the body of the Constitution.

Failure to commit even to the principle of gender equality does not bode well for any more substantive equality guarantee. By contrast, the first Constitutional recognition of this principle would open the way for debate at the next Constitutional Convention over the desirability of an equality guarantee within the body of the Constitution.

The idea we should not commit ourselves to anything, in case it becomes an obstacle to something not a current option, is a standard anti-reform tactic already identified by F.M.Cornford in 1908.3 As Cornford observed, the argument ‘the present measure would block the way for a more sweeping reform’ will often be combined with the Wedge argument that ‘you should not act justly now for fear of raising expectations that you may act still more justly in the future.’

(2) The inclusion of a non-justiciable commitment to the principle of the equality of men and women in the Preamble will become a stalking horse for a substantive equality guarantee in the body of the Constitution.

The Preamble is not a core part of the Constitution and cannot create a de facto substantive right. Its function is to set out values that are important to the community. It is clear in Constitutional theory and practice that Preambles do not create independent rights and obligations. In general Preambles only affect core parts of the law when there is some ambiguity in the document to which they attach. If some kind of Bill of Rights were added to the Constitution, then the Preamble might assist in interpreting its breadth or meaning, if that were in doubt. Such double hypotheticals are far removed from the current Referendum.

(3) The equality of men and women is encompassed by a non-specific reference to ‘Equality of all people before the law.’

The argument that a non-specific phrase such as ‘equality of all people before the law’ is sufficient to convey the message of the equality of men and women flies in the face of history. ‘Equality before the law’ has not been sufficient to guarantee women the equal protection or equal benefit of the law. It is a relatively narrow legal concept that falls far short of equal citizenship for men and women.4

(4) If women are mentioned then every other subsection of the population will also have to be mentioned.

The sub-group argument, that if mention is made of women, mention will have to be made of all other subsections of the community, overlooks the fact that women are the majority of citizens, indeed more than half of humanity, not a sub-group. They incorporate other subsections of the population. Failure to recognise this suggests why they should be made visible in the Constitution.

(5) Mentioning women means pandering to ‘special interest groups.’

In recent years we have seen claims that any mention of women entails pandering to ‘special interests’ or is a form of political correctness. These claims ignore the fact that when people read the word ‘man’ or even supposedly gender-neutral terms relating to citizenship they do not understand them as referring to women. A good example was the 1959 case arguing that the word ‘person’ in the South Australian Constitution did not apply to women. Fortunately the late Don Dunstan was one of the defence lawyers for the women who wanted to be regarded as persons. The best way to make it clear that women are equal citizens is to mention them. 

(6) Use of the terms men and women reinforces them as natural categories of difference.

The queer theory argument raised by some young republicans at the 1999 Republican Convention is misdirected in this case, which is not about naturalising gender difference. Distinctions between men and women (rather than simply differences) have been basic to Australian politics and society and have resulted in unequal citizenship. The principle of equality means neither an assertion of sameness nor an entrenchment of difference. It means that whether identified as men or women, citizens should have equal rights.

Relevance of the Preamble to the Republic

The idea of replacing the Queen with an Australian head of state has had less appeal to women than to men in Australia. There has been a longstanding and consistent gender gap on the question of an Australian republic confirmed in all major polls. For example, Nielsen and Newspoll in January 1999 found an 11 and 13 per cent gap respectively in support for the Republic, and in March 1999 Newspoll found an 11 per cent gap.5 What is the source of this gender gap?

As historian Marilyn Lake has pointed out, women tend to be less attracted than men to themes of separation, independence and self-reliance and more attracted to themes of connection and security. In relation to the Republic it means that the theme of autonomy from the mother country or ‘cutting the apron strings’ has had less resonance for women. Apron strings and the need to cut them have been very much part of the discourse of masculine independence.

So if the question of the head of state has not been one which has aroused much fervour amongst women, what kind of Constitutional issues have women taken an interest in? If we look at the pattern of women’s Constitutional activism we find it has revolved around social issues.

From the 1920s women’s organisations such as the Australian Federation of Women Voters lobbied for Constitutional change to give the Commonwealth power in relation to Aboriginal affairs. They argued this was the only way to achieve effective protection for Aboriginal rights and welfare. From the Second World War women also campaigned for Constitutional change to promote equal opportunities for women.

In 1957 Jessie Street initiated the ten-year campaign for Constitutional amendment in relation to Aboriginal affairs. Women, including Faith Bandler and Kath Walker (Oodgeroo Noonuccal) took a major role in mobilising public opinion in favour of this change, resulting in the highest ‘yes’ vote ever recorded. Former federal MP, Elaine Darling, has recently published a book They Spoke Up Pretty Good which explores women’s leadership in achieving the yes vote.

In the 1990s women were slow to become involved in the debate over the Republic, despite the role of Franca Arena in the formation of the Australian Republican Movement. For example, women were quoted in only 6 per cent of the articles on the Republic published in the Sydney Morning Herald in 1994. It was only when the debate was widened to include issues including Aboriginal reconciliation and gender equity, that more women became involved.

They also promoted the view, as women’s organisations had done since the Royal Commission on the Constitution in the 1920s, that Constitutional reform would only be successful where there was broad-based community involvement in the debate and development of amendment proposals. This process issue was one of the priorities put forward by the Women’s Constitutional Convention in January 1998.

This Convention was organised by national women’s organisations including Women’s Electoral Lobby, the YWCA, Women into Politics, Australian Women Lawyers and the National Women’s Justice Coalition. All national women’s organisations were invited to send delegates and it was attended by some 300 women from around Australia. The Communiqué put out by the Women’s Convention stressed that support for a Republic should be tied to issues of gender equity, full recognition of Indigenous Australians, affirmation of cultural diversity and commitment to more inclusive processes of Constitutional reform. This continued a theme first promoted by Australian women in at the 1995 Beijing Conference, that support for a Republic should be tied to the achievement of greater equity.

Let us now turn to how these gendered perspectives on Constitutional change are reflected in public opinion. The Nielsen poll of January 1999 showed 50% support for the Republic but 63 % support for Aboriginal recognition. Not only was there much greater support for the only Preamble question asked than for the head of state question, but also the gender gap was reversed. While 11 per cent fewer women than men supported a republic, six per cent more women than men supported Aboriginal recognition in the Constitution.

In other words opinion polling confirms what can be picked up on the internet – that many women are more interested in the referendum as an opportunity for a more inclusive Preamble than in the head of state question. The important word is more inclusive rather than perfect. We do have the commitment of Government and Opposition that if this referendum passes we will have another elected Constitutional Convention within five years, which will enable ongoing community involvement in Constitutional change. We should vote ‘yes’ to a Preamble that describes us for the first time as a democracy and affirms some basic democratic values. That is what the Constitutional Convention resolved and Government and Opposition agreed to take forward. Here is what such a Preamble would look like.6

We the people of Australia affirm our Constitution as the foundation of our democracy. We dedicate ourselves to a responsible and representative system of government that upholds fundamental rights and freedoms and the rule of law.

We respect and cherish our ancient land and recognise indigenous Australians as its original occupants and custodians. We seek an Australia that is proud of its diversity, promotes the equality of men and women and provides justice and equity for all.

As we now know, the Preamble released by the Prime Minister in March 1999 looks nothing like this. Democracy only turns up in a penultimate and incomprehensible paragraph where it is linked to invocations against achievement. Neither is there any mention of the equality of men and women, although the Prime Minister had twice committed himself to this in the previous month.7 Whether an inclusive and democratic Preamble can be achieved in time for the November referendum is difficult to say. Certainly it is a goal worth striving for.

* With thanks to Annie Dugdale, Jenny Earle, Kim Rubenstein and Anne Winckel for helpful contributions.

End notes

1. Examples of countries which affirm the equality of men and women in their constitutions include Argentina (1994), Bangladesh (1977), Brazil (1988), Czech Republic (1992), Finland (1995), Federal Republic of Germany (1949), Fiji (1997), Greece (1975), India (1950), Italy (1947), Japan (1947), Malta (1991), Netherlands (1983), Papua New Guinea (1975) , Philippines (1986), Poland (1997), Portugal (1976), South Africa (1996), Sri Lanka (1978), Spain (1978), Sweden (1992), Vanuatu (1980), Venezuela (1972).

2. For example in the National Agenda for a Multicultural Australia , 1989, reaffirmed in Australian Multiculturalism for a New Century, 1999. See also the Government response to the Report of the Civics Expert Group (1995).

3. F.M.Cornford Microcosmographia Academica: Being a Guide for the Young Academic Politician Cambridge, Bowes and Bowes, 1908.

4. Arguments (1) and (3) were apparently put forward by some entrants in the Constitutional Centenary Foundation’s Preamble Quest (‘We the people of Australia…: Ideas for a New Preamble to the Australian Constitution’, February 1999).

5. The gender gap in polls on the question of the republic has been as follows: AGB McNair, October 1993, 15%; Morgan, December 1997, 11%; A.C.Nielsen, January 1999 11%; Newspoll January 1999 13%; Newspoll March 1999 11%. The smallest gender gap, but still significant at 5 % is to be found in a Newspoll survey entitled ‘Republic Study’ commissioned by the Australian Republican Movement in January 1999.

6. Preamble drafted by Marian Sawer 25 March 1999, with acknowledgments to Lowitja O’Donoghue.

7. On Channel Ten’s Meet the Press on 14 February 1999 and at the joint party room meeting on 16 February, reported in the Australian and the Canberra Times the following day. On both occasions the Prime Minister’s formula was ‘equality of men and women before the law’ – which as already noted is inadequate to achieving equal protection and equal benefit of the law, let alone the broader goal of promoting social equality. Nonetheless, the Prime Minister’s February formula was vastly preferable to the March outcome where women disappeared only to be replaced by ‘mateship’, often connoting the exclusion of women.