BARRIERS TO WOMEN IN LAW

NEIL MAHONEY

I PREAMBLE – SOCIAL CHANGE AT THE TURN OF THE NINETEENTH CENTURY

“… It is enough for us to declare that a woman, especially an adolescent girl, cannot be suspended on the summit of a wedge without injury to the structures above, and deformation of the pelvis; and that the bruising of the flesh, which some riders unwillingly admit, and the craving for stimulants after a fatiguing ride, ought to restrain the prevailing indiscriminate and intemperate use of the vehicle. If exercise be the object, we commend a pair of sturdy human legs as a motor of unsurpassed fitness for every sanitary purpose. Assuredly, the pedestrian’s features will not wear that intently anxious expression, which has already been given the designation of the “bicycle face.”1

“Let me tell you what I think of bicycling. I think it has done more to emancipate women than anything else in the world. It gives women a feeling of freedom and self-reliance. I stand and rejoice every time I see a woman ride by on a wheel...the picture of free, untrammeled womanhood.”2

* Submitted for assessment HIS1115 1 Ed, ‘Bicycling – Pro and Con’ (1896) 27(7) JAMA, 384 - 386. 2 Cornwall Historical Society, Womens Rights: Cornwall’s Radicals, Rebels, and Reformers (2013) <cornwallhistoricalsociety.org/exhibits/women/late19th.html> (quoting Susan B Anthony, New York World (1896)) accessed 28 May 2018.

II 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.

III FORMAL AND INFORMAL BARRIERS TO WOMEN’S PARTICIPATION IN LAW

Historian Judith Bennett proposes that it is important to recognise relationships between continuity and change. She further suggests that there is a distinction between changes in women’s experiences, and transformations in women’s status.6

It can be inferred from this definition that changes in women’s rights to participate in law happens both slowly through gradual change and societal acceptance, and suddenly with transformation.

Transformations are the changes in Legislation that force action on the part of others. Examples are the passage of the Married Women’s Property Act (1879) NSW,7 the Marriage and Divorce Act (1857) UK, followed in 1861 in Victoria and 1873 in New South Wales,8 the right for women to vote in 1902 in Australia,9 and the state Legislations enabling women to be admitted to legal practice between 1903 for Victoria, 1904 in Tasmania, 1905 for Queensland, 1911 in South Australia and 1923 in Western Australia.10

These are the transformative changes that allowed the position of women within society to be altered without further debate – these are the legislations that allowed women to own property, enter agreements, maintain an income, and otherwise be removed from the absolute shadow of her husband. The law that allowed a woman the right to divorce her husband on an equal basis to their male counterpart – she no longer had to prove claim of adultery and cruelty for an extended period of time.11 The right to women’s suffrage for federal elections, that also had no ties to land ownership.12 And finally the right to study law and then enter the profession and practice next to men in what was widely accepted as being the ‘gentlemen’s profession’.13

Legislation did not remove all barriers to women entering the legal profession. When Edith Haynes applied to practice law in Western Australia in 1904, her application was refused by Parker J on the grounds that

“…I am not prepared myself to create a precedent by allowing admission of a woman to the Bar of this Court … If the Legislature intended to make women eligible for admission to the Court, that they should have said so in express language … and

6 Mary Jane Mossman, ‘ “The Law as a Profession for Women”: A Century of Progress’ (2009) 30 The Australian Feminist Law Journal 145 (‘The Australian Feminist Law Journal’). 7 above n 3 58. 8 Prue Vines, ‘Annie Ludford, Postmistress: The Married Women’s Property Acts and Public Service Employment in 1890’s New South Wales’ (2015) 2 Law & History 153.

9 Law and Justice in Australia (n 3) 217-218.

10 Law and Justice in Australia (n 3) 92.

11 12 13 Law and Justice in Australia (n 3) 154. Law and Justice in Australia (n 3) 217-218. The Australian Feminist Law Journal (n 6) 145.

consequently it seems to me that the time and money which would be expended would be quite wasted …”.14

Parker accepts that New Zealand has altered Legislation, and while New Zealand is an English colony, and carrying the same birthright of English Common Law, Parker was not willing to accept a woman to the Bar.

Burnside J says

“… the Statute says ‘every person’. But in considering that Statute I think that one must first bear in mind what the law was at the time the Statute was passed, … There is nothing conferring a right on women to be admitted as solicitors. … there is the Supreme Court Ordinance of 1861, which keeps up the word ‘any person’, … so far as we know, we have not been able to ascertain any instances under the Common Law of the United States which is based on the Common Law of England, or of any instance in England or any British-speaking Colony where the right of women to be admitted to the Bar has been suggested. … the words in the Statute are ‘every person’. That does not appear to me to be very forcible. … I agree with my learned brothers, and I am not prepared to start making law.”15

The fact that they ignored the Common Law in New Zealand which the judges recognised had passed legislation to allow women to practice law, while deferring to the United States not having passed such legislation. The judges have also not acknowledged that Victoria had very recently passed legislation enabling women to practice law. Given that the legislation passed in Victoria in 1903, and the discussions that were most likely occurring in both Tasmania and Queensland around admitting women to the ‘gentlemen’s profession’, it is most likely that the judges presiding in this case were aware of the changes occurring in other jurisdictions in their own nation, as well as being aware of the admission of women to law in other British-speaking colonies.

This refusal to interpret ‘any person’ as being applicable to women is very much in line with the views of the times, as illustrated in the preamble, where women’s desire to ride bicycles was ridiculed publicly, and male medical practitioners developed spurious justifications to deny women the right to freedom and self-reliance.

The bicycle, women’s suffrage, and the right to practice law alongside gentlemen, all form part of the political, social and professional emancipation of women.16

14 15 16 Law and Justice in Australia (n 3) 88. Law and Justice in Australia (n 3) 89-90. The Australian Feminist Law Journal (n 6) 143.

IV SOCIAL ACCEPTANCE OF WOMEN PARTICIPATING IN THE LEGAL SYSTEM

In all Australian states, following the enactment of Legislation allowing women to practice law, it still took several years for women to enter law as a profession. Flos Grieg, who was the first woman lawyer in Australia, was admitted in Victoria in 1905, two years following the enactment of Legislation.17 The other states in Australia typically had a decade or more delay from enacting Legislation to allow women to practice law and the admission of the first woman lawyer in each jurisdiction.18

This delay in appointments is indicative of overcoming societal expectations of women, and acceptance of women as lawyers.

There is still a long way to travel down this road however. Roach-Anleu has found that women are concentrated in lower paying, less prodigious legal employment with fewer opportunities for promotion when compared with men.19 She also states that arguments suggesting that women will make a difference (in law) appear to be incompatible with research suggesting that women are concentrated in positions where they have very little scope for transforming the organisation of legal work and knowledge.20

Ever since women have started working in the legal professions there is the appearance of sexual discrimination. The rates of employment, partnership and admission to Bar are also proportionately low compared with the rates of graduation from law school.21

While the numbers of female employment have been increasing in the legal professions, wages are typically earning just over half that of men and women tend to find work in family law, property law and conveyancing, probate and estate administration.22 These areas of law tend to be classified as women’s area of law.23

Women are also less active in commercial, company and criminal law.24

By 1987, women accounted for almost half the graduates from law universities in Australia, but at the same time, accounted for less than 20% of law professionals in Australia.25

Women are entering the legal profession in increasing numbers, however are not afforded the same positions as men. While the increasing numbers of women entering the legal profession

17

The Australian Feminist Law Journal (n 6) 132. 18 Law and Justice in Australia (n 3) 92. 19 Sharyn Roach-Anleu, ‘Women in the Legal Profession: Theory and Research’ (1993) Proceedings of a Conference on Women and the Law (1991 Canberra) Australian Institute of Criminology 193. 20 Ibid 193-195. 21 Ibid 193-208. 22 Ibid 200-201. 23 Ibid 201. 24 Ibid. 25 Ibid 194-195.

are a signal of change, it may now be more important to examine the positions within law that women are occupying.26

V THE FUTURE OF WOMEN’S PARTICIPATION IN AUSTRALIAN LAW

The response to the underperformance and discrimination against women in the legal professions is the Model Equal Opportunity Policy for Female Barristers and Advocates (‘MBP’).27

It has been found that there are fewer female senior counsel in all jurisdictions in Australia, and that women receive fewer complex, important or long running briefs than their male counterparts.28 In addition, when women receive briefs in civil and commercial areas, they are typically of a minor nature or heard in a lower court.29

The MBP seeks to remove the apparent sexual discrimination, while at the same time promoting the policy of ensuring that the barrister best suited, trained, and with the most appropriate experience for a brief be assigned that brief.30

The MBP supports action to promote women away from those areas of aw that have been traditionally recognised as being women’s areas, but strives to avoid preferential treatment in order to achieve these goals.31

Affirmative action, while it has potential to speed up acceptance of social change,32 may also result in discrimination through eroding the underlying assumptions that resulted in the inequality and balance the scales the other way by providing preferential treatment.33

VI CONCLUSION

The question that remains for the Australian legal industry as a whole, is will it be more beneficial to women in law to remove all distinctions between men and women and adopt an approach of sameness that has been applied in other areas of discrimination law, of does the industry embrace the differences that may enrich the profession as a whole?34

26 Ibid 204. 27 Francesca Bartlett ‘Model Advocates or a Model for Change? The Model Equal Opporyunity Briefing Policy as Affirmative Action’ (2008) 32 (3) Melbourne University Law Review 351-382 (‘Melbourne University Law Review’). 28 Ibid 356. 29 Ibid 357. 30 Ibid 358. 31 Ibid 373-374.

32 33 34 Law and Justice in Australia (n 3) 217-218. Melbourne University Law Review (n 27) 374. Melbourne University Law Review (n 27) 374-375.

In a legal profession that is currently receiving an oversupply of graduates,35 will result in increasing competition for the positions that are available. It is apparent that in this climate, any form of discrimination will affect the discriminated parties to a greater degree.

There has been much change toward equality over the last century and even more over the last 20 years, but more is still needed. Ongoing change needs to be moderated and reviewed in order to avoid pitfalls that may upset the journey to equality, and this can only occur through challenging the current system at the grass-roots level of education and graduate employment, and also through challenging the judicial process and current laws which may be stifling change.

35 Law Society of Western Australia, ‘The Future of the Legal Profession’ (2017) 1.