Rubenstein, Kim --- "Editorial: Women and the Constitution - a long way to go" [2022] PrecedentAULA 24; (2022) 170 Precedent 2

---

WOMEN AND THE CONSTITUTION – A LONG WAY TO GO

By Professor Kim Rubenstein

As a foundational document for Australia’s Federation, the Australian Constitution (Constitution) framed the future of women’s participation in democracy. It established the very structures that would influence women’s capacity to work, to make decisions and to be supported in legislation.

Women did not participate in the framing of the Constitution, which meant the lived experience of women was not incorporated in the Federation’s legal and societal structures. This was a Constitution produced by men, creating a system whereby laws would be determined by men.

Section 41 was introduced to respond to the women of South Australia, who were enfranchised in their own state at the time of Federation but would not be allowed to vote in the new Federal structure. It promised much:

‘No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.’

This section was invoked when Malcolm Fraser called an election in 1983 and four people not on the Commonwealth electoral roll joined the NSW electoral roll, expecting they would be able to vote in the coming election. Their expectations were dashed, with the reasoning that s41 was intended to have transitional value only.^[1]

Yet the women whose advocacy gave rise to that section were fighting for a broader vision of democracy, rather than just for their own votes; their fight was about their vision of a representative democracy.

The lack of representation persists, particularly of women in positions of power in the public sphere. A high point was reached in 2011, when three women were concurrently Governor-General (Quentin Bryce), Prime Minister (Julia Gillard) and Attorney-General (Nicola Roxon). But within a year, with a change of government, only one woman was sitting in the Cabinet.

Women’s lack of voice during the framing of the Constitution meant they had no say in the location of the Commonwealth seat of government. Section 125 provided that this be located ‘in the state of New South Wales and be distant not less than one hundred miles from Sydney’.

This meant the new capital would be located far from both Sydney and Melbourne. The effect has been to exclude many women in primary caregiving roles from even considering working in Parliament.

It’s time to consider changes that would enable women to gain higher representation. What about job-sharing legislative roles? In a 2015 UK case, two women applied to share the role of representative in Parliament. They were rejected on the basis that an application by two people for a single representative’s role was not in line with the law.^[2]

However, this case does give rise to ideas for making the role of Parliamentary representation more accessible.^[3] The experience for members of Parliament of working from home during the pandemic has paved the way for considering new ways of working. We should also be looking to legislate change in areas such as early childhood education, paid parental leave and child care. If this brings about higher representation by women in the public sphere, it is a first step to women’s equal participation.

The gendered nature of the original Constitution casts a long shadow. We have a long way to go.

Kim Rubenstein is a Professor in the Faculty of Business, Government and Law at the University of Canberra, and Australia’s leading expert on citizenship. Her scholarship in gender and public law includes a focus on women lawyers’ contributions in the public sphere. Kim was Director of the Centre for International and Public Law at the ANU, 2006–2015, and Inaugural Convener of the ANU Gender Institute, 2011–2012. At time of writing Kim was an Independent candidate at the 21 May Federal election, aiming to represent the ACT in the Senate.

---

^[1] R v Pearson; Ex parte Sipka [1983] HCA 6; 152 CLR 254; 45 ALR 1.

^[2] R (Cope) v Returning Officer for the Basingstoke Parliamentary Constituency [2015] EWHC 3958.

^[3] See K Rubenstein (ed), Traversing the Divide: Honouring Deborah Cass's Contributions to Public and International Law, 2021, ANU Press <http://press-files.anu.edu.au/downloads/press/n7864/pdf/02_rubenstein.pdf> .