Episode 3
· 49:22
Welcome to Feminist Acts, a podcast series where we explore law reform from feminist perspectives. My name is Kate Seear, and I'm one of the hosts of this series. I'm really excited about today's conversation. We're going to hear about the constitution of Australia, our foundational document. When I was in law school, it was notable that I was taught that that document was drafted by our so called founding fathers, notably a set of white men.
Kate Seear:So this begs the question, what might our constitution look like if we rewrote it, perhaps with the perspectives of those excluded in mind? We're going to explore these issues today through a conversation led by my colleague, Associate Professor Becky Badigal. Becky's going to sit down with three experts in the field. Associate Professor Casey McLaughlin from the Newcastle Law School, Associate Professor Yi Fui Ng from Monash University, and Emeritus Professor Margaret Thornton from the Australian National University. Before we hear from Becky, I want to take you into the chamber, the Women's Constitutional Convention.
Kate Seear:We're going to hear from Kcasey and Yee-Fui, who are gonna talk us through their proposal. And this is a detailed speech, more detailed than some of the others you'll hear in different episodes of this podcast because it's rich with ideas and a range of proposals that we need to reform in our constitution. Becky is gonna take you through it with our guests over the course of this episode. So for now, sit back and come with us on a journey to Parliament House for the Women's Constitutional Convention. I'm going to hand over to our chairwomen, the Honourable Kcasey McLoughlin and the Honourable Yee-Fui Ng.
Yee-Fui Ng:We stand before you today acknowledging both the power and the limitation of law. We seek to enshrine gender equality as a basic democratic value in Australia's constitution in three distinct yet interconnected ways through the crafting of a new preamble, the inclusion of an equal protection clause, and amendments to the mechanisms by which political and legal authority is to be assigned. This convention is about remedying the exclusionary and masculinist ethos of our nation's founding document, which our proposed amendments seek to address.
Kcasey McLoughlin:But first, some history, both recent and not so recent, to justify our proposal. Australia's constitution was drafted by and for white cisgender men at a series of conventions during the eighteen nineties. It is not a majestic document drenched in
Yee-Fui Ng:the language of human rights or equality. Rather, the framing of the document is marred by an intrinsic racist and masculinist ideology. The language used operated from the outset to exclude First Nations people from what would become known as Australia despite their existence on the territory for at least sixty five thousand years prior to English colonization. Women too were excluded from the business of nation building, although the omission was qualified. Some non indigenous women at least were made citizens, a characterisation not afforded to First Nations people in any way.
Yee-Fui Ng:However, it must be noted that this concession was less about equality and more about white women's common link with their menfolk and the reality that two states had already given women the vote. Therefore, within the Masculine Federation, women would have to be citizens.
Kcasey McLoughlin:In many ways, this cavalier approach to women's citizenship highlights the matters that the drafters, now sometimes called the founding fathers, determined to be of real concern. The drafters envisioned a federal system of government assigning legislative power, demarcating the separation of powers, and the judiciary's role within the constitutional framework. As professor Margaret Thornton has argued, their concern was in delineating powers within the new federation, not with individual rights. This approach aligned with the dominant viewpoint of the time informed by the works of A. V.
Kcasey McLoughlin:Dicey and James Bryce
Yee-Fui Ng:that civilized nations did not need to expressly provide for individual rights. Why? Because, so the story goes, they were already provided for by the common law and principles of responsible government. Perhaps father did not know best after all. Certainly, by contemporary standards, this logic is dubious.
Yee-Fui Ng:These are self serving lies that the law tells about itself. What about those for whom the common law and principles of responsible government held no such promise? It rankles that those who possess rights might then decide that such rights were unnecessary for those who were, by virtue of their legal status, as effectively nonpersons deliberately excluded from the drafting table.
Kcasey McLoughlin:Reimagining our constitution requires the principles of gender equality to be properly embedded from design to execution. In other words, this convention process needs to itself reflect the kinds of ideals we seek to embed in the constitution. First, at the structural stage of deciding who gets to be in the room, this room where the constitution is redrafted. The inclusion of women and gender diverse people is the bare minimum. Looking at the sea of faces before us, we are proud that women constitute a majority of delegates here today.
Kcasey McLoughlin:We note that all delegates have been democratically elected with express provision to ensure adequate representation across our rich and diverse communities. However, the inclusion of such members of society must represent the floor, not the ceiling.
Yee-Fui Ng:Women must be in the room, yes, but their participation must also be meaningful. We wish to explain the choices made while leaving open the discursive space for debate. Our proposals are the beginning of the discussion, not the end. We draw upon our feminist forebears ideas expressed at the nineteen ninety eight convention and earlier, while leaving open the possibility that a new generation will offer fresh perspectives. It is essential that we hear and embed the voices and perspectives of all women, not as some homogenous group, but instead acknowledging the rich differences between and among them.
Kcasey McLoughlin:Delegates, our proposal is at once modest and radical. It is a call to action to enshrine gender equality as a basic democratic value in Australia's constitution. Unlike the constitutional conventions of years past, women have set the agenda at this convention. Crucially, we acknowledge that our draft proposals are simply the beginning of the conversation and leave open the space to hear from and include the perspectives of all delegates.
Becky Batagol:You've just had a glimpse at a future Australia. It's a future where equality isn't symbolic, where our laws finally match the lives they're meant to serve. This speech is taking place at a women's constitutional convention in 2048. The voices you've just heard are Associate Professor Yifue Ng and Associate Professor Casey McLachlan. How would you feel hearing that speech?
Becky Batagol:Are you feeling inspired? Relieved? Concerned? Confused? Hi.
Becky Batagol:I'm Becky Badergol. I'm a law reform expert from Monash University in Melbourne. And in this podcast, we're asking something radical in its simplicity. Can we change our society by changing the law? Today, I'm thrilled to be joined by Casey McLaughlin and Yifue Ng, two legal experts who have come up with a proposal that doesn't tinker at the edges.
Becky Batagol:It completely restructures who holds power. It's not just feel good stuff. If their proposal was adopted, it would add a constitutional right to equality, rewrite the constitutional preamble, and introduce the cue word. That's right, today we're talking quotas for gender and race across Parliament, the Ministry, the courts and the public service. Always a controversial topic.
Becky Batagol:We'll then be joined by Professor Margaret Thornton. She's been a leading voice for decades on discrimination and feminist law. And she's going to put Casey and Yifue's proposal under the microscope for us. Today we're talking about power, representation and the kind of constitution Australia could choose to have. Strap yourself in for this one.
Becky Batagol:Let's get started. Associate Professor Casey McLachlan, you're from the School of Law and Justice at the University of Newcastle. How would you introduce yourself to someone who's new to the law?
Kcasey McLoughlin:I'm someone who teaches and researches in law and I'm really preoccupied and interested by this question of how the law can improve women's lives. And thinking really in a big picture way about the relationship between law and equality. And a lot of my work has thought about the ways in which power is held in the law, specifically around judges, but also thinking about power more broadly and thinking about some of the consequences that flow from power only being held by a limited class of person.
Becky Batagol:And Associate Professor Yifue Ng from the Faculty of Law at Monash University, welcome. How would you introduce yourself to someone you just met at a barbecue?
Yee-Fui Ng:Oh, thanks, Becky. I don't go to many barbecues, but I will try. So I researched in the area of public law and political integrity, which means I'm extremely, extremely nerdy, But that's okay. We're amongst friends here. I spoke to a roomful of Europeans about what I did in my research, and I said my research is about keeping politicians honest.
Yee-Fui Ng:And everyone in the room laughed, and then they applauded. So that's basically what I'm trying to do, reform our legal system to improve our democracy. Casey, how
Becky Batagol:did it feel reading that speech out?
Kcasey McLoughlin:It's actually quite powerful to hear the words spoken. And I think that's been one of the really interesting things in this genre of that performance of what a speech looks like in front of a lot of people. It's quite distinct to the normal work that we do as academics writing. Reading something aloud for a public audience, it really feels quite different and special actually in terms of the message that you're trying to convey. Yifrey, do
Becky Batagol:you find it hard to imagine yourself before a constitutional convention or is that something you're quite comfortable with?
Yee-Fui Ng:Oh, unfortunately it's just too easy to imagine myself speaking to a large room full of people.
Becky Batagol:And yes, quite rousing, I enjoy that. So how would you describe your proposal for law reform in this episode, Casey?
Kcasey McLoughlin:I think that that introductory piece about it being modest and radical actually really captures the sentiment. There's a big bold idea for reform, but in some ways it still doesn't feel like quite enough given the foundations of our constitution and how much it has excluded certain groups. There's that big question about how much will remaking this constitution ever really make it inclusive. So you've just brought up the constitution.
Becky Batagol:And in Australia, I think for many Australians, the constitution's not something that's particularly relevant to their day to day life. Those of us who were voting age in 2023 might have learned a little bit more about it as we all had to vote in a referendum to change our constitution whether or not we'd introduce an indigenous voice to parliament. So given that, why did you choose to focus on reforming the constitution as a means of addressing racial and gender inequalities?
Yee-Fui Ng:That's a great question, Becky. And well, the constitution is the founding document of our nation. And it was drafted way back when on a boat by some white old man in the 1800s. And people are not that interested in it, maybe because it's not relevant to us today. It's quite a dry and boring document.
Yee-Fui Ng:It's not what we see in The United States where their country was born out of revolution and they had to fight for their country. And the language in that constitution was more rousing and more inspiring and talks about individual rights. So I feel like we should reform our constitution to more enshrine our population today. Gender equality is important and it's just as Casey said, the first step in moving forward as a society.
Becky Batagol:Good. Anything you want to add, Casey?
Kcasey McLoughlin:I'm actually reminded of a really rousing and interesting speech from the High Court Justice Patrick Keene, where he describes Australia's constitution as a small brown bird in comparison to the American constitution as a large magnificent eagle. And I think that's an interesting symbol in terms of the modesty of Australia's constitutional framework and it's lacking of some of that grandeur around individual rights. I think there's probably an important piece here to not suggest that the American system has all of the constitutional quirks ironed out and sorted. Quite clearly there is entrenched racial and gender equality in countries that do have individual rights. And indeed, there has been a lot of scholarship and pushback that perhaps the lack of rights expressed in our constitution is not such a bad thing in terms of the prevailing sentiments at the time.
Kcasey McLoughlin:If they'd been entrenched in other ways in our constitution, it probably isn't the kind of document that would have stood the test of time in terms of contemporary values. But coming to that point about the importance of constitutions and the idea that they're removed from our everyday lives, which I think is a fair enough sense as people are living their ordinary lives, that is true, but constitutions fundamentally shape the lives that we lead. They decide who has power, they limit government power and also allocate power, And as a source of law, even though it doesn't sound particularly exciting or glamorous, that actually can profoundly shape people's lives in really important ways. I think we saw in 2023 actually symbolically but also really practically how bruising it is to be denied and excluded. How that piece around constitution and national identity actually is really crucial no matter what kind of life you're living.
Kcasey McLoughlin:You don't have to be a lawyer to be affected by the constitution.
Becky Batagol:How do we change our constitution in Australia and what's the role of a convention?
Yee-Fui Ng:Well, we change it by basically having a double majority vote. So a majority of the states must vote for it and a majority of the entire Australian population as well. And that's very difficult to achieve without bipartisan support. So we've only had eight out of 22 succeed in the entire Australian history, and it's only ever succeeded when we've got two parties coming together in collaboration to achieve this victory. And that's one of the factors that we saw in the loss of the twenty twenty three referendum on the voice that there wasn't bipartisan support.
Yee-Fui Ng:So it is something that is difficult to achieve, but it's something that we should aspire to because our constitution is old, it's stale, it does need to be renewed.
Becky Batagol:What's a women's constitutional convention then?
Kcasey McLoughlin:This is a really interesting question. And of course, one of the things that we mention in our speech is the process by which Australia's founding document was drafted originally and it was drafted at a series of constitutional conventions, which is where in that case a group of white men got together to debate and argue what the constitution should look like. And in the years since there have been constitutional conventions, but of course they have never been quite so empowered as the constitutional conventions that were the real deal in the 1890s. And in 1998 there was very famously a constitutional convention around the question of the republic, that being whether or not a king or a queen should be the head of state. And you will see that we do not in this country have a strong impulse for constitutional change.
Kcasey McLoughlin:And what happened around that time is a bunch of women academics and activists said, 'Hey, let's have a women's convention to try and think about how women might be better included in the constitution.' and that women's constitutional convention as an academic event ran along the side of the convention that happened in 1998, fundamentally debating that issue of a republic but it did also touch on issues about whether or not the preamble should be rewritten. Quite famously, around the time that then Prime Minister John Howard wanted the words around mateship to be included in the preamble, and there was also discussion at that point around whether or not indigenous people should be recognised in the constitution, not at the level that we were talking about the voice referendum, something much more modest, and also whether or not women should be included. History tells a pretty sad story in relation to those fairly recent constitutional conventions in that they didn't really see any change. But certainly that women's constitutional convention in 1998, and that's the feminist forebears that we say we're standing on the shoulders of, they were far more radical in terms of how First Nations people and women how their lot might be improved in our constitution.
Becky Batagol:So what's a preamble in our constitution and why would changing it make a difference?
Yee-Fui Ng:The preamble is the beginning part of the constitution before all the substantive sections. And it's where you can have some level of flourish and inspiration, if you like. This use is part of constitutional interpretation. So if you include some sections in the preamble, the judges in the high court can then interpret it in a certain way, taking into account the preamble. So it's not a useless part of the constitution.
Yee-Fui Ng:It is a part that can shape the way our laws are interpreted across the nation.
Becky Batagol:In a non legal sense, is there a role for preambles in teaching Australians about their constitution?
Kcasey McLoughlin:I absolutely think so. And it might be helpful to read some of our preamble. I think there's something about a statement about what kind of country you want to live in and it's supposed to be setting the tone for what follows. And therefore it's not just a tool of law. I see it as a tool for shaping identity, to making a statement about who we are.
Yee-Fui Ng:And our preamble says, We, the people of Australia, as free and equal citizens, recognise the Aboriginal peoples and Torres Strait Islander peoples, the first Australians who were the original inhabitants of this territory, whose lands, winds, and water we now share, and pay tribute to their unique values and their ancient and enduring cultures, which deepen and enrich the life of our community and who remain an integral part of this nation's future.
Kcasey McLoughlin:Regret the injustices of our past and affirm that we stand together as one united peoples, emphasizing the unique gifts and talents of this diverse and multicultural society and celebrate and value the cultural, religious, racial and linguistic diversity of the people of Australia, proclaiming the right of equality of all persons in all facets, including but not limited to sex, gender, sexual orientation, ability or disability, culture, religion, ethnicity, employment, education, pregnancy, language, birth, race, colour, marital status or age, and the right to live a life free from gender based violence and sexual and reproductive rights. Believe that Australia belongs to all who live in it. We hereby, through our freely elected representatives, adopt this constitution as the supreme law of Australia. I'm going to get
Becky Batagol:you to step back a bit and I'm wondering if you could explain to us what your proposal actually does, the nuts and bolts.
Kcasey McLoughlin:Sure, okay. So essentially there was three things that we did. One was the preamble and another is the creation of an equality clause. And the equality clause is basically creating that ability to limit government power if they are getting in the way of equality. And the other piece that we've done, which I suspect will be more controversial, is we have made an attempt of changing how power is assigned within our constitutional system judicial, executive and legislative.
Kcasey McLoughlin:And so we wanted that piece across all the arms of our separation of powers. And this is where I guess the dreaded Q word comes in, where we talk about quotas as a way of addressing this particular issue.
Becky Batagol:Your proposal talks about appointments to the parliament, to the ministry, to the benches of federal courts and also to our public service, so fundamentally every aspect of government. Your proposal is that they must ensure that the composition of each of these bodies reflects gender, sexual and racial equality and diversity and that representation in relation to gender can never exceed more than 60% of one gender. Practically how would you imagine this would work?
Kcasey McLoughlin:This is a really interesting and ambitious piece in our proposal. Certainly there is evidence from elsewhere in the world that quotas are an effective means of realigning power and authority within political systems. And I guess I just wanna get in a point here. We lent on the work of professor Rainbow Murray, who I think does really powerful work reconceptualizing quotas and thinking about quotas not as a one up or a leg up for women, but rather thinking about quotas as a way of addressing the historical over representation of a certain category, that being men, and thinking about how we might change that piece. And so that was an important part of our framing in this particular reform proposal.
Kcasey McLoughlin:Certainly though in thinking about how it will work within our constitutional framework, practically it's going to require a certain level of involvement, goodwill from political parties because part of the picture is because we're doing each of those branches, it's not quite as complex when it comes to the judiciary putting forward the proposal that you can't have more than 60 of one gender. But when it comes to selecting candidates for the House of Representatives, you know, this would certainly be a limit on certain political parties. We know that there are some political parties that exist within our framework that continue to really push against quotas where others have been more willing to adopt quotas. But practically the idea is having this mechanism, which we thought was having it at 60% felt like a compromise of sorts. It meant that it may well be the case that we have majority parliaments of women but never allowing it to get to the extent to which we have a historic over representation of men.
Kcasey McLoughlin:We deliberately used language around gender to avoid reproducing a gender binary, but also kind of having a little bit of flexibility in how we frame it.
Becky Batagol:Former Supreme Court Justice of The US, Ruth Bader Ginsburg, she was asked what is enough women on the Supreme Court of America? And she said, when there's nine and there are nine judges on that court. So you don't agree with that?
Kcasey McLoughlin:I love, I adore that quote from Ruth Bader Ginsburg and have used it in my work. And it comes back to that point about how we think about quotas. Because effectively on the High Court of Australia there was a quota in favour of men until 1987 because that was the first time a woman was appointed. And you could say similar quotas existed in terms of parliament until the 1940s, the ministry until the 1960s. And there is a certain appeal in that Ruth Bader Ginsburg quote saying, well, if you have all women, that's fantastic.
Kcasey McLoughlin:The point of the Ginsburg quote, I think, is it really amplifies the fact that nobody raises an eyebrow or historically haven't raised eyebrows when our institutions are stacked with men. That's that's the point of that quote that's so powerful. I feel in terms of political pragmatism, making a proposal for a 100% representation of women would be quite difficult to get over the line and probably would set up something of a dangerous precedent.
Becky Batagol:You imagine your law reform to take place a long way into the future at a women's constitutional convention in 2048. Why did you do that? Why aren't we ready for your proposal today?
Kcasey McLoughlin:That's a really interesting question, Becky, and actually one that we've been asked about a few times. And I think I have to confess that if I had my time again, I probably would have pushed it even further into the future because that experience of the twenty twenty three referendum sent a really powerful message about the reluctance for constitutional change. And one of the things that we did in terms of drafting it and pushing it into 2048 is we felt that Australia properly needed to reconcile with the way in which First Nations people have been excluded and marginalised by our constitutional framework. So it is presupposed on an alternate future where actually that reckoning has been done and it's imagining that a treaty exists at that level. And so if they're the preconditions for dealing with some of those matters before we deal with enshrining gender equality, then it feels like that is something that's a long way off.
Kcasey McLoughlin:We wanted something that felt a bit futuristic as part of a bigger critique to suggest that perhaps as a nation we aren't quite ready to do some of this hard reckoning work.
Becky Batagol:Can you explain to us what happened in 2023 with the referendum around the indigenous voice to parliament, please?
Yee-Fui Ng:The proposal was actually quite modest. It's to recognise indigenous people in the constitution by setting up an advisory body that would make submissions to parliament. It wouldn't actually have a substantive change in our laws or our rights in any way. It has been misrepresented by certain groups as having had more impact than it did. And so what we had, this was a situation where the opposition party at the time opposed the referendum, and we know that that's the death knell for passing the referendum.
Yee-Fui Ng:Because of the high number of votes needed to pass this amendment, we needed bipartisan support. So unfortunately it was used as a political football for electoral gain.
Becky Batagol:Casey, what do you see as some of the lessons from the twenty twenty three referendum?
Kcasey McLoughlin:I think a really significant lesson is the importance of civics knowledge and knowledge about how our constitution works. And my sense is that it was really obvious, particularly once we were in a position that there was going to be an active no campaign run, that there was a possibility for disinformation to really frame the debate. And this is where knowledge about how our constitutional system works is really, really important. And I think there's perhaps a two edged sword here in the sense that I personally think the voice was a very generous offering from First Nations people and it is a great shame that we did not take up that generous offer. But in lots of ways, and this was part of the critique of some of the members of the First Nations community who thought the proposal didn't go far enough, the advisory body didn't ever really have significant teeth.
Kcasey McLoughlin:And I can understand why some people thought that it was not going far enough and why some were pushing for treaty as a more significant piece. But there were also people saying well why does it need to be at the constitutional level?' and part of the rationale or the argument for this advisory body being baked into the constitutional framework is because it is hard to change constitutions. Because once you have something in the constitution, it means that it can't just be the whim of another government down the line to get rid of it because it doesn't suit. So there's a sense of having some kind of being embedded in that political system. And it seems to me that there was a lot at stake and it was a pretty big and important lesson about how hard it is to change our constitution and how difficult it is to prosecute the case for reform, how hard
Becky Batagol:it really is to take people along with you. You talk about the connection between gender and race equality. This is a project about gender equality. Why are you focusing on race?
Kcasey McLoughlin:To be really frank, so often, and legitimately too, white feminists have been accused of pushing in, of monopolising feminism, or not including the experiences of non white people in their feminism. And I think that one of the things that emerges from any study of our constitutional history is that while women may have been excluded, and this is where an intersectional approach really matters, the experience of First Nations women has been far more dire within our constitutional framework because they've experienced the discrimination and exclusion of not only being women but being women of colour in a constitutional framework that has had no space for them. And so we felt that it would be wrong to be prosecuting the case for gender equality when nothing had been appropriately done to recognise this important and crucial part of our history.
Becky Batagol:Thank you, Kcasey and Yee Fui for your proposal. We're now going to bring in Professor Margaret Thornton from ANU. We're going to have a chat around your thoughts on that proposal. Margaret, we've just heard a pretty inspiring speech from chairwomen, Ng and McLoughlin. What do you think?
Becky Batagol:Do you think this proposal goes far enough?
Margaret Thornton:Well, it is quite far reaching when compared with traditional constitutions, particularly the constitution that we presently have, which has huge gaps in it. And so even, I mean, just in the last week, we've had a lot of discussion about the fiftieth anniversary of the dismissal of the Whitlam government. And so, not having any sort of guidance about how a governor general should comport him or herself and their relationship with the prime minister, who virtually doesn't exist so far as the constitution is concerned. So this well, I don't know that it actually did address or does address the issues of the governor general and the prime minister, but it does address and include many important substantive issues in terms of diversity, particularly thinking about women and indigenous people. The idea of the constitution is a document that's written at a fairly high level of abstraction.
Margaret Thornton:So the details in terms of legislation and governance are going to be found in other documents. I mean, we have a multiplicity of legislation. Thousands of pieces of legislation are actually enacted every year. So they're going to have the detail. So the idea of the Constitution is one that actually sits above all of that and acts as guidance for what might be included legitimately within legislation.
Margaret Thornton:So, I wouldn't want to say that it should include more things at all. I suppose I did have some comments about thinking about issues such as equality, which is a very complex idea. And the Greeks in fifth century B. C. Athens did develop the concept of equality in terms of governance.
Margaret Thornton:But it always related to male citizens, so that most of the population was actually excluded. That included all women, all slaves, all aliens, and children, of course, were not included. And we find that discussion or assumption about the notion of equality applying only to male citizens then continued the next almost three thousand years. And so it was really only in recent times, in terms of the abolition of slavery, that women in The UK and The US began to agitate from the late eighteenth century for having some participation in government and in public life, because they were seen to be invisible and belonged in the private sphere, where constitutions didn't apply at all. In fact, the laws didn't apply apart from the law of the father.
Margaret Thornton:And so, you know, this male citizen was the one who represented the public sphere in the home, which meant that he could even discipline his wife and grown up children.
Becky Batagol:Margaret, could you explain the difference between formal and substantive equality? And help us to understand whether or not you think law can help us to achieve more substantive equality.
Margaret Thornton:Yes, so this is tricky. So the word equality is thrown around as though it were meaningful. But in fact, for the most part in law, it means formal equality, or equality before the law, or sameness. All these sort of euphemisms of formal equality. And so, it's really not looking at what happens.
Margaret Thornton:So, if you think about, say, entrance to university, right, this person, say, needs to have, say, a score of 90, for example. And so, all right, you simply look at the score on the face. You don't look behind it what sort of person, what sort of home they came from. Was that a person whose home was middle class surrounded by books? Or was it someone who was impoverished who came maybe from Alice Springs and had none of those advantages?
Margaret Thornton:So that you see the idea of equality then becomes a sort of barren concept when you apply it across the board. Whereas substantive equality is going to look at what happens subsequently once the person has been let in to education or some other institution. So that you're looking rather at end result how things turn out. And so only the most foresighted judges who can think in those terms when they're assuming that everyone is equal before the law, come before the court. It doesn't matter if it's a wealthy corporation against an impoverished individual.
Margaret Thornton:They're seen to be treated in the same way. Which of course is nonsensical. And so that the outcome is going to be different in terms of, you know, the fine that might be imposed. A few thousand dollars will be nothing to the corporation, but it could impoverish the individual, and so on. So, I think the idea of substantive equality is really important to think in that sense beyond that formalistic sense that we're so inured to, and judges also are so inured to, and think that formal equality then is the equivalence of fairness on justice, whereas it isn't.
Becky Batagol:If you were rewriting Kcasey and Yee Fui's proposal, what would you do differently? Well, I
Margaret Thornton:would probably pay a little bit more attention to that broader understanding of equality, explaining, you know, what it might mean in a substantive sense. Because, unless that's done, judges, will be unable to grapple with it, other than in that sort of old fashioned formalistic way, because we know the idea of precedent is central to legal interpretation, adjudication, always looking over one's shoulder at the past. So we want them to be thinking proactively about the future. And that's where I think a little more guidance would be helpful in thinking about that issue. Because otherwise they will just do the same as they always have done, because that idea of precedent is central to legal adjudication, looking at the past.
Margaret Thornton:So we don't want the past to be governing the future. We want to be more forward looking. So that's where I think we need some guidance about how judges might then interpret the law in order to secure some semblance of substantive equality.
Becky Batagol:So reducing discretion, telling them what to do is going to be the way to deal with these patriarchal judges?
Margaret Thornton:I think so. I mean sometimes, of course, judges are going to be perfectly capable of doing that themselves, but not necessarily. And we've had some examples. Only a few years ago, I think, after the Mabo and the WIC decisions, we had the deputy prime minister of Australia, who was a conservative, saying, what we need are more conservative judges. And that's what they did.
Margaret Thornton:The next six judges appointed were very conservative. And so they didn't like something that was actually brought about some some notion of justice for indigenous people with the Mabo and Wik decisions. And so they were endeavoring to contain that. So I think we can't rely on the good nature and good sense of judges in interpreting the Constitution. That's where I think we need to sort of offer guidance.
Margaret Thornton:I'm not saying hobble them, but maybe some stronger support there. I'm not entirely sure how one would do that, but I think, you know, some legislation does endeavor to offer guidance to judges, so they're not going to go off the rails. But if you just have open ended concepts like equality, it can go either way, and you can end up with a very conservative, and indeed contrary, outcome. We're here in
Becky Batagol:the studio today and there's four of us here around the table and we've had a discussion and debate about a proposal from someone who, Casey, as you've said, you've quoted in your thesis. How do you feel hearing Margaret's critique of your proposal? Oh, I think it's
Kcasey McLoughlin:a real privilege to have someone of Margaret's standing within the academy to think about our work and to pay it the due diligence and respect to take it seriously and to think about where we could take it further, how it could be improved and expanded. And does Margaret's perspective on your work change, or has it changed, how you present your proposal or how
Becky Batagol:you think about your proposal?
Kcasey McLoughlin:For sure, from my perspective. I think that some of those critiques around the relationship between formal and substantive equality and about what happens with well intentioned feminist laws once judges have them in their hands are really valid critiques. And I think that if we ever got to a place where we were putting these proposals to the public, for sure we would want the benefit of different ideas before we went forward with that. That's kind of an important piece, a collaborative law reform idea, rather than it just being the ideas of two people. And that's really what we wanted, wasn't it?
Kcasey McLoughlin:We wanted it to feel like it was, Hey, what do all of you delegates think?
Yee-Fui Ng:Yeah, exactly. I think the constitution is a product of discussion and negotiation and amendments. So certainly having Margaret's critique was super helpful and probably a broader audience as well in the future.
Becky Batagol:Professor Margaret Thornton, do you think as a feminist, and a feminist has been working on gender equality for many years, do you think it's possible for law to instigate the kind of change you want to see with regards to gender justice?
Margaret Thornton:Well, is an old question and one I think that legal philosophers really sort of latch onto. Whether law leads the way or whether it follows limps in the rear. Well, it's hard to say unequivocally what the answer is. Sometimes it can lead. And this is still, I think, the valiant hope that if one has an inspiring piece of law, such as the Constitution we've just heard about, the hope is that that will lead the way and will educate people to think differently about issues and will change the thinking of society.
Margaret Thornton:In some ways, that may be a pious hope, because we always have backlashes in between, and just, you know, just thinking of our neighbor, President Trump, I mean, this year, he's passed a number of executive orders which actually limit positive action in terms of gender, race, and sexuality. And so, I mean, that can happen so easily with the stroke of the pen. And so that's another thing about, I think, a constitution or any sort of legal document about how entrenched it is, you know, that it can be ephemeral, that you have a change of thinking about it. It can be swept away. And that's quite frightening, as we see with some of the actions of President Trump and the sort of backlash that has been mentioned in terms of women's rights, in terms of abortion, and so on.
Margaret Thornton:But nevertheless, I mean, the Constitution will survive that, but it's not necessarily going to resolve the problem.
Becky Batagol:Can you think of any examples where law reform has sparked change?
Margaret Thornton:Well, I suppose, yes, one of the areas that I've been interested in is discrimination law. Now, there was no such thing as discrimination law at the common law. It's totally legislative. And so I think things like the Racial Discrimination Act, although it's not always sort of responded in the way one hopes, the fact is that it is actually there. And before it existed, there was nothing.
Margaret Thornton:And that also applies to the Sex Discrimination Act, which has been somewhat more vibrant in terms of changes and responses and thinking about issues such as sexual harassment, for example. Which again, was unknown to the common law. I mean, it was only in 1984 that the first sort of decision on sexual harassment was heard in Australia. I mean, it was a non issue. And in fact, Catherine MacKinnon has shown with her book just shortly before that, that the concept didn't even exist.
Margaret Thornton:So, it was unknown to everyone. So, law, as obviously, can be very important in leading the way. I mean, there's not going to be instantaneous change and everyone is not going to be persuaded. But nevertheless, many people are. And with those discrimination laws, institutions, workplaces, organizations of all kinds have had to respond and actually develop protocols.
Becky Batagol:That was emerita professor Margaret Thornton from the ANU. And before that, we're hearing from Associate Professor Kcasey McLoughlin from Newcastle Law School and Associate Professor Yi Fui Ng from Monash Law School.
Kate Seear:Hi, Kate here again. Thank you for listening to this episode of Feminist Acts. If you liked what you listened to in this episode, you can find more, including resources, in our show notes. Most importantly, you can get a link to our book, which is freely available.
Becky Batagol:You can
Kate Seear:read more about this proposal and all of the proposals in the Feminist Legislation Project. Thanks for listening, and see you next time. This series is being recorded on the lands of the Boon Wurrung and Boon Wurrung people of the Kulin nations. The contributors to today's episode come from across these lands we now call Australia. We acknowledge additionally the lands on which they live and work, and the Wurundjeri, Ngunnawal, Oahuakole, and Wurrami peoples.
Kate Seear:Our focus today has been on the constitution. This is a document that was drafted here in Australia and then sent all the way to London where it was formally signed into law by Queen Victoria in 1900 at Windsor Castle. That fact is a stark reminder of the important and unbreakable connections between location and lawmaking, including how specific places have enabled the disenfranchisement of Aboriginal and Torres Strait Islander peoples and how they can be connected to change. We've seen this most recently here in Wurundjeri country in Victoria, where the first treaty between Australia's First Nations people and the government was signed into law in November 2025. Among other things, this treaty establishes that the First Peoples Assembly of Victoria will be a permanent representative and decision making body for Aboriginal and Torres Strait Islander people in the state.
Kate Seear:We recognize the many years of work that have gone into the production of the treaty, and we extend our respects to all First Nations people today. You've been listening to Feminist Acts. This podcast was produced by Miniature and funded by the Monash University Office of the Deputy Vice Chancellor Research and Enterprise.
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