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’—
chairman and deputy chairman
(2) Section 224, ‘chairperson if’—
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 languageThe 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 amendmentsIn 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
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.
ConsistencyContemporary 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 cultureWomen 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.