USQ Law Society Law Review
Neil Mahoney
II
Winter 2021
INTRODUCTION
The laws and thus the legal profession in Australia was established from the English legal system because of English settlement in the eighteenth century through terra nullius. This was connected to the English common law being carried with the people to new lands.3 Sir William Blackstone stated, “For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them.”4 Traditionally English law denied several basic rights to women, especially those who were married, and they were considered to be femes covert, or a woman covered by her husband. As Blackstone said, “By marriage the husband and wife are one person in law; that is, the very being of legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover she performs everything, and she is therefore called in our law-french a feme covert.”5 Under feme covert a woman had certain protections, such as not being able to be sued, and not able to enter contracts or incur debt, but the only property she was entitled to were immediate personal belongings. All possessions that belonged to her when a marriage was entered became the property of her husband, and he could do with it what he wished. As a result, when Australia was settled by the English, the laws and customs that covered the status of women in English society were transplanted to Australia. These customs and laws that dated back to the middle ages were not to be altered until the late nineteenth century and the introduction of the Married Women’s Property Act which was enacted in Australia in 1879. Even after the introduction of this act, there continued to be barriers to the participation of women in law. Laws that allowed women to be admitted as practicing lawyers came into being between 1903 and 1923 in different jurisdictions in Australia, but these still were not sufficient to overcome all social barriers and allow women to enter the legal profession unfettered.
3
Prue Vines, Law and Justice in Australia Foundations of the Legal System (OUP, 2015) 160 (‘Law and Justice in Australia’). 4 Ibid. 5 Ibid 58.
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