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'Reflections on women’s rights – past, present and future’

Rights and Freedoms

Abstract: This presentation draws together reflections on women’s rights from the campaigns by the suffragists and suffragettes of the late 19th century and a consideration on how far we have in realisation of women’s rights, and the challenges still remaining, concluding with the importance of the continued advocacy of bodies like the National Council of Women, since its inception in 1896.

Your Excellency, the Hon Margaret Beazley AC KC, Mr Wilson, NCW NSW President, Julie Morris.

Thank you to NCW NSW for inviting me to speak.

Thank you, Yvonne Weldon AM, for your wonderfully warm welcome to country, as ever.

Let me begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation and pay my respect to Elders, past, present and emerging, and also to acknowledge any Indigenous guests attending today.

I am delighted to be addressing the National Council of Women on the subject of women’s rights. I thought I would take the opportunity to draw together some threads drawn from my research interests of longstanding and my reflections on women’s rights that have been brought into focus in my role at the Australian Human Rights Commission.

My interest in the subject of women’s rights grew through my doctoral study in the 1980s. It was during this time that I first met the National Council of Women.

My doctorate was a study on ‘testamentary freedom’ — about the right to make a will. It became a legal historical study of the balancing between two great ideas: the idea of family and the idea of ‘property’. The outcome of that balance was how much, or how little, testamentary freedom one had. By the middle of the 19th century, however, testamentary freedom was essentially a tale of what men had; and what women did not — particularly in the case of married women.

On marriage, a man and a woman became ‘one’ or, in Biblical terms, ‘one flesh’,[1] which meant that the woman’s legal personality disappeared into that of her husband. ‘What’s mine is thine’, only worked in one direction.

The campaign for women’s suffrage

The property rights, or lack thereof, of women became a centrepiece in the suffrage campaign of the 1890s. This was known as the ‘Mauve Decade’, because William Henry Perkin’s aniline dye allowed the widespread use of that colour in fashion. The 1890s women liked mauve so much that violet (mauve by another name) became one of the suffrage movement’s signature colours — green, white and violet — or ‘G’, ‘W’, ‘V’, for ‘Give Women Votes’.

Women needed the vote to change the laws. For many women it was personal. When Millicent Fawcett’s purse was stolen at Waterloo station in London, the pickpocket was caught and he was charged with ‘stealing from the person of Millicent Fawcett a purse containing £1. 18s 6d, the property of Henry Fawcett’.[2] Millicent became the prime mover in the fight for women’s suffrage in England.

For Dora Montefiore, in Victoria, it was when her husband died that, the lawyer informed her, it was only because her late husband had said nothing about the guardianship of their children that they remained in her care. This was, she wrote, her ‘initiation into what the real social position of a widow meant to a nineteenth-century woman’. From that moment, she said, ‘I was a suffragist (though I did not realise it at the time) and determined to alter the law’.[3]

The 1890s saw the galvanising of women’s groups in Australia in their goal to achieve female suffrage, echoing movements in America, England and New Zealand.[4] In 1891, the Womanhood Suffrage League was formed, with Lady (Mary) Windeyer, wife of Sir William Windeyer, a Judge of the Supreme Court of New South Wales, as President. Female suffrage was also a major objective of the National Council of Women, first formed in New South Wales in 1896, on the initiative of Margaret Windeyer, the librarian daughter of Lady Windeyer. Margaret had met members of the American women’s suffrage organisation when she was in the US for a librarianship meeting. She was keen to have a local body in place before the proposed London meeting in 1987 of the International Council of Women. This plan was successful; the first meeting was called for 26 August 1896 and Margaret Windeyer represented NSW at the London Conference.

For such groups, the vote was the means to an end: to secure the reform of laws affecting women and children. Once the suffrage was obtained, the securing of these other reforms became the major goal. The law of bequest and the law regarding guardianship of children were two matters that attracted increasing attention. This is where my doctoral work then focused.

From suffragists to ‘suffragettes’

The local ‘suffragists’, as they were known, achieved their suffrage goal earlier than their British sisters. South Australia was first in 1894,[5] Western Australia in 1899,[6] and New South Wales in 1902,[7] the same year as for the Commonwealth.[8] It was perhaps easier here than in Britain, as the Commonwealth could hardly be established by denying the vote to the women of South Australia and Western Australia. Once the suffrage was sorted out for the Commonwealth, the States fell in line. Under the Commonwealth Act, women gained not just the right to vote, but also to stand for election. At the State level, this was a longer journey.[9] In 1919, Grace Benny was the first woman elected to local government in Australia, for Brighton Council, now Holdfast Bay in South Australia.[10]

For Britain, the struggle was longer — and harder.[11] In my office I have a Walker’s ‘toffee hammer’. Why, you may well ask. Designed for breaking up sheets of toffee, these little toffee hammers played a role in the women’s suffrage movement in the United Kingdom. They called themselves ‘suffragettes’, willing to take direct, militant action.[12] The Women’s Social and Political Union adopted a policy of ‘Deeds, not words’, including smashing windows in government and commercial buildings as their official policy, to ‘show displeasure without loss of life’. These little hammers, easily available, easy to carry and keep concealed, were perfect for the WSPU’s window-smashing campaign – sometimes with the aid of a stocking for extra force (see Image 1 from Illustrated London News). And it was quite extensive: over 200 women were arrested for smashing windows in 1911–1912.[13]

The suffrage banner

Australia’s women advocated on behalf of their British sisters. In Parliament House in Canberra you can find the magnificent Women’s Suffrage Banner that was carried proudly at the head of the Australian and New Zealand contingent of women suffragists in the Women’s Suffrage Coronation Procession in London in 1911 (just before King George V’s coronation). They urged England, as the ‘mother country’, to accept a young country’s advice on the wisdom of adopting women’s suffrage.[14] Painted by Australian artist Dora Meeson Coates, it is so big it required four people to carry it. (See Image 2).

Under the gold lettering of ‘Commonwealth of Australia’ stands the white-gowned Mother Britannia holding her sceptre, while Daughter Minerva, holding the heraldry of the newly federated Australian states, counsels ‘Trust the Women Mother As I Have Done’.

While the suffragettes stopped smashing windows with the onset of World War I in 1914, ‘Mother’ did not trust her women until after the war, in 1918.

The banner was rediscovered in the mid-1980s in a large collection of suffragette memorabilia in the Fawcett Library — just in time for our bicentennial celebrations in 1988. Dale Spender, an Australian feminist living in London at that time, Senators Susan Ryan and Margaret Reynolds, then Minister Assisting the Prime Minister for the Status of Women, each had a hand in its ‘return’. Prime Minister Bob Hawke celebrated the handover at The Lodge on International Women’s Day, 8 March 1988. Senator Reynolds accepted the banner on behalf of the women of Australia. In 2002, to mark the centenary of the Commonwealth Franchise Act 1902, it went on permanent display. At that time there were10 women in the House of Representatives and 20 women in the Senate, including Senator Kay Patterson. Kay is now my colleague at the Commission as the Age Discrimination Commissioner, a role in which her predecessor was the late, much missed, Hon Susan Ryan. (She passed away far too early at the age of 77 on 27 September 2020).

So how far have we come in realising women’s rights’?

Women’s rights are human rights. The journey has been a long one and is still continuing.

In the arena of parliament, while Dame Enid Lyons, widow of the pre-war Prime Minister Joe Lyons, was the first woman elected to the House of Representatives in 1943 and, in 1949, the first woman to serve in federal cabinet, as part of Sir Robert Menzies’ government. But she was not given a portfolio and, as Vice President of the Executive Council, her ‘major duty was to pour the tea’, she said.[15]

By 1975, women comprised 10% of Australian Federal Senators, with none in the House of representatives.[16] By 1 January 2022, the Senate comprised 53% women and the House of Representatives, 31%.[17] The federal election in May 2022 saw the Senate proportion increase to 55%, and the House of Representatives to 38%.[18]

In 1975, Dame Margaret Guilfoyle became the first woman to be a Cabinet Minister with portfolio responsibilities in a Coalition government, first as Minister for Social Security (1975–80) and then as Minister for Finance (1980–83). Then, Senator Susan Ryan became the first woman to serve in a Labor Cabinet, first as Minister for Education (1983–87) and then as Special Minister of State (1987–88).

Looking to another field, I have had a particular interest in my own profession and have written of the struggle for women even to study law let alone be admitted to practise. Like the situation with the franchise, silly games were played with definitions – saying ‘person’ did not include ‘woman’, for instance.[19]

Ada Evans’s admission as the first woman barrister in NSW in 1921 required two significant hurdles to be overcome: entry to the study of law and the rules of admission to practise. Evans’s entry into Sydney Law School in 1899 it is said, was only because the Dean, Professor Pitt Cobbett, was absent at the time. Her admission, 19 years after her graduation in 1902, was only made possible by the passage of the Women’s Legal Status Act 1918 (NSW) after a considerable campaign, building upon the campaign for women’s suffrage, and still having to serve two years as a ‘student-at-law’ – the necessary precursor for admission to practise. This Act, with one substantive section, was needed because, it seems, that the section of the Acts Interpretation Act 1897 (NSW) – ‘Words importing the masculine shall include females’ – was not clear enough to include women in the term ‘person’ for registration as a student-at-law.

Things have changed a lot since then – in some respects. For example, looking at the top tier of the legal profession, by 2019, 36% of Australian judges were women. As of June 2022, using statistics kept by the Australasian Institute of Judicial Administration, the proportion of women judges in all courts in NSW was 41% (118 of 288), an increase of 6.4% over the ten-year period from 2012. The range is from 50% in the Land and Environment Court, to 22.2% in the Supreme Court and Court of Appeal.

As to other indicators, in 1965, Australian women won the right to drink in a public bar, but during the 1960s women working in the public service and in many private companies still had to resign their jobs when they got married. This ban was not lifted until 1966. It meant that married women could only be employed as temporary staff, severely curtailing their promotional opportunities – let alone building up anything like superannuation – or they lied, keeping their marriage a secret.

In 1975, the federal Family Law Act was passed, which allowed for ‘no-fault divorce’.[20] While this has been ‘a liberating change for unhappily married women’, it has ‘also brought its challenges in terms of the economic realities for divorced women’.[21]

The same year, South Australia became the first state to enact sex discrimination legislation. I remember the day when NSW enacted its own laws of this kind in 1977.[22] It changed how banks would assess my own financial standing as a married woman.

In 1984, in her role as Minister Assisting the Prime Minister on the Status of Women, Susan Ryan introduced the Commonwealth’s Sex Discrimination Act 1984, briefly earning herself the title of ‘Australia’s feminist dictator’.[23] This law is still one of the four key federal anti-discrimination laws — so far, the principal means for enacting in domestic law our commitments under international human rights treaties.

While stories like Senator Guilfoyle’s and Senator Ryan’s were pioneering ones in the political sphere, there were also ‘underbellies’. Elizabeth Reid, appointed the first Prime Minister’s Adviser on Women’s Affairs by Prime Minister Whitlam in 1973, was truly a feminist trailblazer. But even in her role, she had to deal with the very behaviour she was fighting against. She has only recently spoken publicly about unwanted sexual advances made to her during that time by the then Governor-General, Sir John Kerr.[24] The description of his drunken advances towards her when they were in a tight space — he pressing his body on her — are likely familiar ones. She, like many in similar circumstances, did not say anything about it, only telling her closest friend. She also showed great understanding for him, his wife having died not long before after a long illness. ‘Besides’, she said, he was very inebriated and was obviously wearing a corset, so he was ‘not as successful as he would have liked to have been’. She would not label it a ‘sexual assault’.

Looking at Sir John’s conduct through contemporary eyes Reid said that nowadays ‘people would be appalled’, but at the time, ‘there was little public conversation’, so she just pushed his harassment out of her mind. She had so much work that had to be done, that she didn’t have time to think about these things’.

Today’s statistics on sexual harassment are not very reassuring that much has changed. The results of the 2022 National Survey, conducted by Roy Morgan Research on behalf of the Australian Human Rights Commission under the Sex Discrimination Commissioner, are revealing. When examining workplace sexual harassment in the five years prior to 2022, 33% of workers said they had been sexually harassed in the previous five years – 41% of women and 26% of men.[25] Of the range of sexual harassment experienced, unwelcome touching, hugging, cornering or kissing was identified by 28% of women and 10% of men – Sir John’s alleged conduct would be a good example of ‘cornering’.

In 2021, the Australian Bureau of Statistics reported that women were twice as likely as men to experience sexual harassment over their lifetime (53% compared with 25%).[26]

Clearly the topic of the moment has been on sexual harassment in the workplace – and the legal profession has been far from absent within the ambit of workplaces captured.

In June 2020, the High Court revealed the conclusion of an investigation of allegations of sexual harassment by former Justice Dyson Heydon towards six former judicial associates who worked at the court. The conclusion was that these women had been harassed by the former Justice. In a statement announcing the findings of the investigation, the Chief Justice, the Hon Susan Kiefel AC (our first woman in this role) said, ‘We’re ashamed’.[27]

The revelations in our highest court and the statement of the Chief Justice are part of a significant recognition of an unpleasant underbelly in my own profession.

In November 2021, then NSW Chief Justice Tom Bathurst sent a video to NSW Bar Association members saying that sexual harassment in the legal profession was a serious problem and told barristers ‘we can and must change’. Bathurst CJ said that the legal profession was ‘already fraught with mental health challenges. Sexual harassment and abuse often have long-standing effects on people’s lives and careers.’[28] Chief Justices in other jurisdictions have come out similarly.

This is why the work of my colleagues is so important: Sex Discrimination Commissioner Kate Jenkins, leading reviews into sexual harassment in the workplace, Respect@Work[29] and in Commonwealth parliamentary workplaces;[30] and the work of Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar, leading work on ‘closing the gap’ on Indigenous health,[31] and leading a national conversation to elevate the voices of Aboriginal and Torres Strait Islander women and girls.[32]

One of the biggest changes in the amendments to the Sex Discrimination Act last year, in implementation of recommendations in the Respect@Work report, is shifting the responsibility to employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. This is a profoundly important paradigm shift in the way the SDA works – shifting the burden from individual complainants to employers, in a preventive approach.

Another aspect of women’s rights concerns abortion. It has taken over a century for the law in NSW to change.

In 1972, Wendy McCarthy and 79 other women took out a double-page spread advertisement in a national newspaper, the Nation Review, disclosing that each had had an illegal abortion. It was, as Wendy recounts in her 2022 memoir, a ‘deliberate political act’, challenging police to lay charges on them, because, at the time, abortion was a crime for both the woman and her doctor/abortionist.[33]

The Crimes Act 1900 (NSW) made abortion unlawful and an offence: anyone who ‘unlawfully uses any instrument or other means’ with the intention to force a miscarriage will face 10 years in prison. The woman seeking an abortion could be prosecuted under the law, as could anyone who unlawfully performed an abortion or supplied the drugs or instruments that could be used for an abortion.

From 1971, judicial interpretation of ‘unlawful’ provided leeway in the application of this offence provision,[34] but as long as abortion remained in the Crimes Act, there was still the potential for health practitioners to be prosecuted and for the case law to be challenged. In September 2019 an abortion law reform bill was before the NSW Parliament. Wendy McCarthy, the ‘face of the movement to drag NSW’s archaic abortion laws into the 21st century’,[35] sat listening to the debate.[36] The bill primarily sought to remove three sections of the NSW Crimes Act that criminalised ‘unlawfully’ attempting to procure an abortion by administering drugs or using instruments or other means.

Wendy McCarthy was about to travel to London and twice had deferred her flights because of this debate. As she says,

The debate was becoming circular and all the key players were exhausted. Any hope that this would be a benign legislative change to remove abortion from the Criminal Code had long gone. It was feral.[37]

It was finally passed on 26 September 2019. The essence of the reform was to place agency with the pregnant woman. If she gives informed consent then a medical practitioner can perform an abortion on a person, so long as she is not more than 22 weeks pregnant. As the CEO of Family Planning NSW, Ann Brassil, told SBS News, ’After 119 years we’ve finally had abortion removed from the Criminal Code … this means it will now be entirely the woman’s choice … and not dependent on whether a medical professional has decided that remaining pregnant would be harmful to her health.’[38]

Abortions after the 22-week gestation period can be performed if the specialist medical practitioner has consulted with another specialist medical practitioner. Medical practitioners are also required to assess whether the patient will need counselling. The Act also allows for those doctors who may object to termination of pregnancies, by requiring them to inform the patient about their conscientious objection and to provide them with information about accessing other medical practitioners and transferring the patient to another practitioner or health service willing to conduct the termination.

A room of one’s own

Continuing the theme of ‘agency’, what comes to mind is Virginia Woolf’s idea of a ‘room of one’s own’. The independence of women that Virginia Woolf saw as essential to be a writer of fiction,[39] is a useful benchmark for a reflection on women’s rights.

Economic and housing security are two key indicators to test. Some of the ‘gender indicators’ from the ABS for 2020 are quite revealing.[40]

The median superannuation balance remains lower for women than men.[41] For older women, an invisible problem is the risk of homelessness. Commissioner Kay Patterson’s team has undertaken research about this growing problem, revealing that the number of older homeless women in Australia increased by over 30% between 2011 and 2016 to nearly 7,000 according to the 2016 Census.[42]

If you have very young children, up to five years old, then only 64% of women participated in the labour force, compared with 95% of men. If you are doing it on your own, then you are more likely to live in low economic resource households. In 2017–18, around half of lone mothers with children (46%) and more than a quarter of lone fathers with children (27%) were living in low economic resource households.

And while women are more likely than men to have attained a Bachelor’s degree or higher qualification, for graduates of most fields of study, females are paid less than their male counterparts.

Plus, we women are likely to live longer than our male counterparts (by 4.2 years), and with lower superannuation or other assets stored away, there are big challenges.

But there are some positive things. Young women were more likely to be buying their home than young men: 24% of women compared with 18% of men aged 15 to 34 years owned their home with a mortgage in 2017–18. And in 2019, the proportion of women (51.2%) at SES 1 level in the public service surpassed men (48.8%) for the first time. In 2022, the number of women at SES 1 level increased slightly to 51.9%. At SES 2–3, 44.6% were women, compared to 55.4% for men.[43] The changes in the composition of the judiciary reflect a similar increase.

Final thoughts

International Women’s Days have been celebrated since 1911, and in Australia since March 1928, when the first marking of the day was held in the Domain in Sydney.[44] Initially associated with left-wing movements, it became championed by the second wave of feminists in the late 1960s, and in 1977, the UN General Assembly adopted a resolution proclaiming a United Nations Day for Women’s Rights and International Peace to be observed on any day of the year by Member States in accordance with their historical and national traditions.[45] It is now celebrated around 8 March.

There is much to celebrate, and still so much more to do. We need to celebrate the contributions of Susan Ryan and Wendy McCarthy and to recognise the wisdom of our elders. Wendy wanted her last word in her memoir to be about grandmothers. She opens this section with a quote from HRH Prince William: ‘As I learned from growing up, you don’t mess with your grandmother.’ Wendy celebrates the wisdom of elders, and especially of older women. It is not surprising that older women were feared in centuries past and wrongly condemned and killed as ‘witches’. We know how wise they are and we venerate them!

We still need the symbolism of green, violet and white of the suffragists’ rosettes to energise current campaigns to recognise continuing challenges for women in law and society  We need to increase the numbers of women in leadership roles – you can’t be what you can’t see. When another great older woman, the late Ruth Bader Ginsburg, was asked when there would be enough women on the Supreme Court, she said, succinctly, ‘When there are nine’.

We also need the younger women to carry forward the focus on women’s rights As Malala Yousafzai, the young Pakistani education activist, shot by the Taliban in an assassination attempt in retaliation for her activism said, ‘When the whole world is silent, even one voice becomes powerful.’

Here the continued advocacy of bodies like the National Council of Women – over so many years – is a contribution of many voices. There is still so much to do!



Image One – Toffee Hammers

Source: Illustrated London News, 9 March 1912

Image Two: Suffrage Banner