Teaching Law

Saturday, 29 March 2014

Queensland to reintroduce gendered statutory language

On 19 March, the Queensland Attorney-General, Jarrod Bleijie, introduced the Crime and Misconduct and Other Legislation Amendment Bill 2014 to Parliament. The Bill is designed to respond to two inquiries into the working of Queensland's Crime and Misconduct Commission. The Bill has been roundly criticised - not least by Tony Fitzgerald QC, who has described it as 'a gross abuse of power'.

In this post however, I will examine the legitimacy of a lower profile change proposed by the Bill: the renaming of the head of the CMC from 'chairperson' to 'chairman'. See eg clause 35:
35 Amendment of s 224 (Qualifications for appointment as the chairperson)
(1) Section 224, heading, ‘as the chairperson’—
omit, insert
chairman and deputy chairman
(2) Section 224, ‘chairperson if’—
omit, insert
chairman or deputy chairman if

It would, I imagine, be argued that there is no legal effect to the change. Section 32B of the Acts Interpretation Act 1954 (Qld) provides:
In an Act, words indicating a gender include each other gender.
This would mean that legally, there would be no barrier to the appointment of a woman to the job of 'chairman' of the CMC because chair 'man' includes a woman. There are however four reasons why this is not only a retrograde step, but an indefensible one.


Sexist language

The word 'chairman' is a return to sexist language. It is sexist because in signifying a man, women are by implication excluded.

Dale Spender in Man Made Language argues that a ‘patriarchal society is based on the belief that the male is the superior sex and many of the social institutions… [are] then organised to reflect this belief’. She examines the connection between language and reality, and 'challenges the view of this language, these ideas, as impartial and objective,' observing that the rules of grammar are designed to 'promote masculine ideals.'

Language has traditionally been used as the principal way of embedding gender in the law. As a consequence of the realisation of the harm this causes, it has been widely accepted for decades now in Plain English legal drafting principles and legislative and government drafting standards that authors avoid gendered pronouns. The old drafting technique (used in s32B of the Acts Interpretation Act - see above) is now a relic.

Gendered language strategies are widely recognised as creating, representing, promoting and perpetuating the law's masculine culture. This culture is reinforced by use of chair 'man' and masculine pronouns. For example, 'his' is used in the Explanatory Memorandum to the Bill page 2, policy objective 7:
strengthen the transparency and accountability of the commission by expanding the role of the Parliamentary Crime and Corruption Commissioner (parliamentary commissioner) in his oversight of the commission... [emphasis added]
This implies the parliamentary commissioner will be a man, or that the role requires a man.  


Purpose of the amendments

In the Explanatory Memorandum, the policy objectives of the Bill are spelled out:
...the recommendations will lead to an improvement in:
    • public confidence in the CMC;
    • timeliness of the investigation of complaints;
    • operational and corpoate governance structures within the CMC;
    • the current culture within the CMC;
    • internal processes and practices in the CMC; and
    • management of personal conduct and work performance of Queensland public service employees
Overall, this Bill is to deal with upholding the integrity of the CMC. Nowhere is there any policy objective or any other mention of a need to change the title of the position of chair of the CMC. Without any reason, we are left with the impression that it is a man - a chairman - who is able to take charge and to implement good governance and timely investigation. This aligns with the traditional association of the masculine with that which is rational, strong, powerful and objective, rather than (the feminine) irrational, weak, sensitive and subjective.

It is recognised that on occasion a change in culture is facilitated by a change in nomenclature. If this were the case with the Bill this reason should have been stated in the Explanatory Memorandum. If that were its true purpose, it is also suggested that a total change in name (eg from Chairperson to Chief Officer or the like) would be more likely to achieve that purpose.

The change to masculine language meets no stated purpose but implies a masculine role for the chair.



Contemporary drafting of legal documents, government publications and legislation adheres to principles of non-discrimination. That this Bill deviates from this principle, results in an inconsistency with this broad approach. This opens the way for questions about the rationale for the change. All language must be given a meaning, and this language stands out. 

While unlikely to result in substantive denial of women's capacity for appointment to the role, inconsistency in language is poor practice. This is reflected in the Parliamentary Counsel's quality assurance check for legislative drafting to ensure 'consistency of language within the Act and with other Queensland legislation.'


Leadership and culture

Women remain under-represented in parliament (30% nationally, in 2012), in the ministry (two out of 19 in Queensland), on the bench (33.53% nationally; only one out of 17 appointments to the bench by the Newman government has been a woman) and in executive positions. It is vital to achieving justice for all that institutions of the law are opened up to women. This includes leadership of the CMC. The use of chair 'man' is implicitly exclusive of women and offers an implied barrier.

These figures are however a reflection of the position of women in society more generally - where women suffer higher rates of poverty than men, lower pay and extraordinary rates of violence, usually at the hands of their partner or ex-partner. It is imperative to change the culture around the subordination of women that results in these  outcomes. That includes showing leadership in the use of language as one of the tools of exclusion and subordination of women. The changes in this Bill set a precedent for further erosion of drafting principles that would serve to entrench women's disadvantage not just in the nomenclature of governance structures, but in ways affecting many women's lives directly.


There is no justification for the change in language in the policy objectives of the Bill or in drafting principles. There is certainly no harm in retaining the existing 'chairperson'. The proposed change reinforces masculine norms that form an implicit barrier to women in achieving leadership roles within the law, and a precedent for wider use of masculine language as a means of excluding and potentially discriminating against women through the law.


  1. Have, or do you know if anyone, has written to DJAG to ask what the reason for the change is? It would be interesting to see what the response was.

  2. No I haven't and I'm not aware of anyone who has. But I agree - the reason would be interesting.

  3. It would be nice if statements about domestic violence didn't usually refer to perpetrators as "he" and victims as "she" - but it seems some gendered expressions are more equal than others.

  4. Without a specific example I cannot comment. Suffice to say that the overwhelming majority of violence occurs by men against women and that history has erased women from the public sphere through language. This has created structural barriers to women's full engagement. That said, there are other examples of people whose experiences of injustice have been unrepresented and while not a structural issue, is important in recognizing their experience and the injustice they have suffered.

    1. One submission has been made to the parliamentary committee reviewing this legislation which has addressed this issue (submission number 1): see https://www.parliament.qld.gov.au/documents/committees/LACSC/2014/CMOLAB2014/submissions/001.pdf
      More need to be made. Closing date for submissions is 11 April

    2. Thank you for pointing this out. Yes I urge people to comment.

  5. Wow.

    Sorry Kate - was with you all the way but unfortunately the overwhelming majority of violence is perpetrated by men against men.

    In fact the overwhelming victims of rape in the United States are also men - they carry the worlds largest prison population with a combined total than the entire western world including China.

    Perhaps you were referencing only domestic violence ?

    And yes, there are examples of some people unrepresented due to structural social issues - specifically the carte blanc dismissal of violence against men.

    Outside of that - yes - good article.

    1. Thanks - yes I was referring to domestic violence.

    2. Whenever the conversation turns to women as the victims of DV, the issue of 'what about the men' inevitably intrudes on the discussion. The facts are that in the USA I imagine the number of rapes by men of men has something to do with the extraordinary rates of incarceration. What is undeniable is that overall, in Australia, the perpetrators of violence against women is by men, so from that evidence the use of "he" (perpetrator) and 'she' (victim) seems relevant. That said, discussions of DV are actually just a diversionary strategy to the basic argument Kate is very eloquently pursuing: the use of the generic male nouns/pronouns rather than non-sexist parallels. I would hope that no-one would refute the power of language to influence an observer's perspective. Ask anyone to sketch a picture of "early man" - well you know what you will get. Or consider textbooks that still talk of 'farmers and their wives".(In other words, just read Dale Spender!). We must not let this rather wriggly Government place official language on the slippery slope back to the generic. Or if we do, let's use the female pronouns/nouns for the next 100 years - because after all we know that the gender doesn't matter! I encourage everyone to write to the Committee. In Cairns, we are planning some action - just haven't sorted out what would be impactful - would love your suggestions. At the moment we are considering something along the lines of a meeting with our local state MP (a male of course), dressed as blokes.

    3. Thanks Carole for this very clear response. Yes I think the fact that this relatively low profile blog has received nearly 10,000 hits since I posted on Saturday morning indicates that this issue has hit a nerve. I would hope that we could engage our local members but we will never know if we don't try! We can't let this one slip through. I like your idea - if I have a brain wave, I'll let you know!

  6. Actually there are numerous studies which show that domestic violence is equally perpetrated by men and women. Moreover, men are around three-quarters of the victims of all violence in general.

    However, that is beside the point. Evidently you are content with the use of gendered language in this area, which contradicts your position on the use of gendered language in legislation.

    In fact, since historically men make up the majority of chairpersons, the argument you used can justify the use of the term "chairman".

    1. We may need to agree to disagree on your first and last points. I do acknowledge that men are indeed victims of violence - of other men. This is actually a side issue from that of the gendered language in the legislation. Thank you for taking the time to contribute a comment.

  7. Replies
    1. Thanks Elizabeth, and thank you for reading.

  8. Kate, I implore you to submit this to the Committee charged with hearing submissions on the planned changes to the CMC Act. This is a very relevant, valid and supported view. Thank you.


    1. Thank you for this suggestion. I agree - we all need to comment. I have passed this on to the QLS and the Bar Association, and intend to comment to the committee myself.

  9. Replies
    1. Thanks for reading and commenting, Margaret. Hopefully we can spread the word.

  10. FTR - Chairman is not sexist. 'Man' is short for 'manners'. Chair of manners - meeting protocols.

  11. Thanks for your comment. With respect, you are incorrect about the etymology of the word. This is a popular misconception.

  12. Hi Kate.I saw this commentary picked up on Zite : well done! 10000+ hits indeed! We have used it subsequently as part of a work sheet on Gendered Language for senior secondary students in Victoria studying English Language. May your fame spread.

    1. Thank you for the feedback! And I'm delighted to know the post is useful as a teaching tool. (Also very chuffed!)