Women and the Preamble: Australia Not Afghanistan by Marian Sawer
Associate Professor Marian Sawer of the Australian National University in Canberra writes on the Preamble: Women and the Preamble: Australia Not Afghanistan
A hundred years ago you had to have whiskers to be involved in drafting the Constitution. Today the ideas of many involved in drafting changes still have whiskers on them. All other democracies that 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.1
What may seem obvious in other democratic countries is not necessarily so 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’ which were recommended for further consideration.
It is hard to discover why the Preamble Working Party at the Constitutional Convention last year 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. 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 that we should not commit ourselves to a principle, in case this becomes a substitute for further action, is a standard anti-reform tactic. As F.M.Cornford observed in 1908: 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 that 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. That is why the current formula
offered by the Prime Minister of ‘equality of men and women before the law’ is also inadequate.
(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.
This 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. It’s time we said so in our framing document.
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).
* Marian Sawer is on secondment from the University of Canberra to the Political Science Program, RSSS, ANU. She is a member of the Australian Women’s Constitutional Network.
