Oral histories profi le: Robyn Layton –By Lindy McNamara

A varied career committed to justice

LINDY MCNAMARA

From acting as a lawyer for the Rolling Stones when they toured in Adelaide in the early 1970s, to serving on the Supreme Court, through to setting up GBV courts and training judges in Pakistan and Afghanistan, and strengthening women’s resilience to climate change and disasters in Mongolia, Lao PDR and Fiji, there is no question that Robyn Layton has enjoyed a diverse career in the law.

INSPIRING FEMALE LAWYERS

While former Supreme Court judge Robyn Layton AO QC doesn’t consider herself a trailblazer for young female lawyers in South Australia, her 50-plus year career demonstrates that anything can be achieved, regardless of gender.

In 2016 when she was voted Australian Woman Lawyer of the Year by her peers, the dynamic Ms Layton admits it was a special moment for her. ‘It’s really amazing that people can find that I might inspire them in some way,” she revealed during an Oral History interview for the Law Society.

“I can think of things in my own life where somebody has said something to me and they had no idea of the impact that has had on my own career and life in various ways.

“I was aware that an unconscious inspiration can happen for people. I thought, ‘Well, if I do that for women, that is just fine by me and I am absolutely grateful to receive that award’.”

The daughter of a social worker father and mother who was a teacher, the young Robyn knew one thing when she left school – she wanted to carve her own path and not follow in their footsteps!

At a careers orientation day she found herself at the Adelaide University’s stand for the Law School and a “spontaneous” decision saw her enrol.

Her childhood Catholic education had instilled her with a social justice conscience and when she arrived at university she quickly joined the South Australian Council for Civil Liberties and “things flowed from there”.

Numerous awards and accolades have been bestowed on Ms Layton over the years, highlighting her life-long commitment to human rights.

From early in her career Ms Layton saw the need for everyone in the community to have access to the court system and one of her first court appearances was a pro bono case.

“I did a lot of pro bono work because it was during the Vietnam War and because I was interested in civil liberties. I used to act on behalf of people who were charged with demonstration offences. There are quite a few stories behind those cases.

“Also I did pro bono work for Aboriginal people. Before the ALRM (Aboriginal Legal Rights Movement) was set up, there was a group of us that got together and said, if any Aboriginal person is arrested, we are prepared to come and act for them. So that’s where my early pro bono work began.”

Ms Layton said she was fortunate in those early days to have several extraordinary mentors supporting her.

“I did my articles of clerkship at Thompson Muirhead Ross & McCarthy and then after I was admitted, I started my first year of law there. My mentor and also my principal was James Henry Muirhead, (later Hon J H Muirhead AC QC) who was an absolutely amazing man, clever and compassionate,” she said.

“Elliott Johnston (later Hon Elliott Johnston QC) also became my mentor and we went into partnership for a number of years.

“Elliott was a wonderful mentor to many young people. I had a coffee with him after I saw him at court and very shortly after that, I got a card saying Happy International Women’s Day and I couldn’t work out who it was from.

“I rang him up and said, somewhat tentatively, ‘Thank you very much’ as I was not certain it was him.

“I then said, ‘By the way, I don’t suppose you are looking for a lawyer’. He said, ‘No, but I am looking for a partner’. I was stunned. I didn’t start off as a partner, but not long after I eventually became a partner in the firm.

“Some other people I worked with in Thomson Muirhead Ross & McCarthy were also my mentors. One of them was John Von Doussa (Hon John von Doussa AO QC).”

In 1978 Ms Layton was appointed as a Judge and Deputy President of the South Australian Industrial Court and Commission, but said it was a difficult decision to accept the offer.

“I was only 32 and I had spoken to two of my mentors - Dame Roma Mitchell and also the Chief Justice Dr John Bray. Essentially both of them said, ‘What? Going to the Bench at (your) age? No. Go to the Bar.’

“I had a young two-year-old child at that point. Dame Roma said, ‘If you appear before me you can take time out and breastfeed your child and then come back in and continue to cross-examine’. And I thought, ‘I don’t know how that would work!’. In the end I decided to take the judicial job.”

Ms Layton described her relationship with Dame Roma as “mixed”.

“She lived down near where I did so I saw her a lot in her ordinary life. She was an extremely caring person. She knew who my kids were, she would always ask after them.”

“There was a time when I challenged her. I didn’t think I was challenging her but that’s the way she saw it.”

“Dame Roma had produced an important report on rape and extending the definition of rape in various ways but drew the line at rape in marriage. And I asked her a question at a woman lawyers’ event to say, ‘Well, why did you draw the line there?’

“Well, she was so angry with me. She saw me as publicly challenging her. It was very difficult to retrieve the personal relationship for a while after that … but that passed and she was very, very supportive.”

Ms Layton remained as a judge in the Industrial Court for seven years and was then appointed as a Deputy President of the Commonwealth Administrative Appeals Tribunal for five years. She then left and joined the Bar and was appointed a Queen’s Counsel in 1992, only the third woman in South Australia at the time to take silk.

In the early 2000s she undertook a report for the State Government looking at child protection issues in the State. Known as the Layton Report, it was a whole of Government review covering all of the departments from education, health, the justice system (courts, police as well as legislation), social welfare and the child protection system.

“I made, I think it was, 190 recommendations. And that seems ridiculous in some ways to have so many but I needed to spell out, so far as I could, some of the smaller branches to give some indication of where further work had to be done to have the overall tree framework for child protection.

“The Department handling child protection was very under-resourced and they were doing very difficult work and it wasn’t working well.”

“I also (recommended) a government structure and framework as to how departments could all talk to each other.”

“Some of the things which were done following the Report, (were done) more or less straight away. But some of the big structural recommendations have only happened more recently like the independent Commissioner for Children and also an Assistant Commissioner for Children to be an Aboriginal person (if the Commissioner was not an Aboriginal person). They have only just made those appointments years later.”

In 2005 Ms Layton became only the fourth female Judge appointed to the Supreme Court. In an historic occasion the following year, three female judges – herself, Justice Nyland and Vanstone – sat on the Appeals Court together.

She said they thought, it was “amazing that we are able to do this and what a privilege it is”.

“It should happen more often and it shouldn’t be unique.” It has not happened since

To read the full transcript of the 2019 interview and learn more about Ms Layton’s 20-year involvement with the International Labour Organisation Centre for Judicial Education, her thoughts on receiving an AO and being named South Australian of the Year, go

to www.lawsocietysa.asn.au B March 2021 THE BULLETIN 23