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1 - Speaking into a Silence: Embedded Constitutionalism, the Australian Constitution, and the Rights of Women

Published online by Cambridge University Press:  14 January 2010

Isabel Karpin
Affiliation:
Senior lecturer, University of Sydney, Faculty of Law
Karen O'Connell
Affiliation:
Human rights lawyer with degrees in law and humanities, University of Sydney
Beverley Baines
Affiliation:
Queen's University, Ontario
Ruth Rubio-Marin
Affiliation:
Universidad de Sevilla
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Summary

The Australian Constitution is a document that is mostly silent about rights. It has no comprehensive set of enumerated rights in the form of a bill of rights. Instead, it sets up a federal system and the basic framework of a representative democracy, with a few specific rights scattered throughout. Federal and state legislation provide the express means of protection of equality. Yet, the Constitution is a crucial part of the framework for understanding women's rights in Australia. Not only does it provide the source of federal legislative power with respect to equality but also, in recent years, a minority view on the High Court has asserted that equality is the underlying principle upon which the Constitution is founded.

In this chapter, we explore the way that the Australian Constitution, without an explicit set of enumerated rights, can and should be used to establish and protect women's rights in practice. We consider how women have shaped the Australian Constitution both in its creation and throughout its development to the present day and argue that the federal system reinforces the traditional division of public and private life to the detriment of women. Looking at the formal mechanisms that exist for pursuing equality and antidiscrimination claims in Australia with reference to international covenants, domestic, federal, and state legislation, we show that Australian constitutional rights are embedded into a larger institutional, bureaucratic, and cultural framework.

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Publisher: Cambridge University Press
Print publication year: 2004

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