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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-09 Daily Xml
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FEMALE LEGAL PRACTITIONERS

The Hon. S.G. WADE (15:57): I move:

That this Council notes the centenary of the passage of the Female Practitioners Act 1911, the contribution of female practitioners in the 100 years since and the ongoing contribution of women to the State through the legal profession.

I gave notice of this motion yesterday, on International Women's Day. It was an appropriate day to recognise that this year is the centenary of the passage of the Female Law Practitioners Act 1911. The act was passed on 21 November 1911 and received royal assent on 7 December 1911.

South Australia has been a leading jurisdiction in terms of the recognition of women's rights. In 1894, South Australia was the first jurisdiction in the world to allow women the right to both vote and to sit in parliament. New Zealand had given women the right to vote in 1893, but New Zealand women did not have the right to sit in parliament until 1919.

In 1896, New Zealand became the first Australasian jurisdiction to allow women to become legal practitioners. South Australia, however, continued to bar women from the bar. So we had the bizarre situation that women in this state were seen as competent to make the laws but were not competent to interpret them. Women were allowed to enter the legal profession through a series of bills passed by state parliaments during the first two decades following federation, the first state being Victoria in 1903 and the last, Western Australia in 1923.

Unlike the franchise, South Australia did not lead the way. We followed Victoria, Tasmania and Queensland. Only New South Wales and Western Australia followed us. At the time of its introduction, an opponent of the bill expressed the view that 'a woman's place is in the home' and, further, 'women would be far better looking after a home than agitating and pleading in courts of law'. A supporter of the bill expressed the view that he did not think the legal fraternity felt much alarm over the passage of the bill. His assessment is supported by the fact that the act did not even get a mention in the Law Society's annual report of the time.

In response to the concerns that it would be 'inconsistent with the modesty of women that they should be mixed up with objectionable cases', it was pointed out that it 'would not be necessary for women to have anything to do with such matters'. A further supporter of the bill's passage observed that he 'had no belief that the passage of the bill would cause a great rush of ladies to qualify as legal practitioners', and if he thought there was any possibility of that he would seriously have considered whether he should vote against the second reading.

Following the passage of the bill, Mary Kitson graduated from the University of Adelaide in 1916 and became South Australia's first female lawyer when she was admitted to the bar on 20 October 1917. Adelaide University had been open to female students since the 1880s, but few women had enrolled in law subjects, since they could not practise. Mary Kitson practised as a barrister with the firm Poole and Johnstone, and the firm was reconstituted as Johnstone, Ronald and Kitson in 1919 when she became a partner. Much of her early practice was in the children's court and laid the basis for her latter involvement in child welfare law reform.

The next barrier arose when she wished to include in her qualifications the role of a public notary. That role was to that point restricted to male lawyers. Ironically, the matter came to be determined by a former employer of Mary Kitson who was by that time Judge Poole, who considered the matter and declared that 'man' in the context of the relevant act did not include women. Aided by other advocates for equal opportunity, Mary Kitson was able to secure the passage through this place of the Sexual Disqualification (Removal) Act 1921, which stated that 'person' could mean either male or female, and another barrier was removed.

As her partners in the legal firm preferred not to work with a married woman, Mary Kitson needed to leave her firm. She was now known as Mary Tenison Woods, and she took the opportunity to form a legal partnership with Dorothy Sommerville. Together they formed Australia's first female legal practice in 1925. Having moved to Sydney, Mary Kitson was instrumental in child welfare law reform and was a key player in the establishment of the department of child welfare there.

In 1950, she was appointed chief of the office of the status of women in the division of human rights at the United Nations Secretariat in New York, and during her term two major conventions were adopted: the Convention on the Political Rights of Women in 1952, the first international law aimed at granting and protecting women's political rights; and the Convention on the Nationality of Married Women in 1957, which decreed that marriage should not affect the nationality of a wife. Mary Kitson left the United Nations in 1958 and died in Sydney in 1971, having received a CBE.

Mary Kitson was not only South Australia's first female lawyer but also one of our foremost. Mary was one of three leading South Australian women lawyers educated at St Aloysius College by the Sisters of Mercy. The other two were Clare Harris, whose legal career took her to London where she was involved with the foreign office and post-war reconstruction, and the other, of course, was the much loved Roma Mitchell, who became Australia's first woman QC in 1962, and she later became the country's first female judge when she was appointed to the Supreme Court of South Australia on 25 September 1965.

At Adelaide University, Roma Mitchell excelled as a student, completing the course in one less year than the required five. She was active in student politics and in fact established the Women Law Students' Society when she was barred from the Law Students' Society because she was a woman. She was admitted to the bar in 1934 and became a partner in the legal firm of Nelligan, Angas Parsons and Mitchell in 1935. As early as 1940, Roma Mitchell was instrumental in assisting the drafting of the Guardianship of Infants Act, which passed this parliament. In 1960, she became a part-time lecturer and a member of the Adelaide University Council.

While still a lawyer, in 1962 she was the Australian representative at the United Nations Seminar on the Status of Women in Family Law. In that regard, it is noteworthy that that role took her to the United Nations only four years after Mary Kitson had returned from the UN. In 1962, Roma Mitchell became Australia's first female Queen's Counsel, and in 1965, nearly 50 years after women were admitted to the profession, Roma Mitchell was appointed to the Supreme Court—the first female judge not only in South Australia but in the whole of the British commonwealth. When she retired from the bench in 1983, it was noteworthy that there were still no other women on the bench and she was not replaced by a woman.

In 1981 she became the founding chairperson of the Australian Human Rights Commission and held that position until 1986. With her special interest in women's issues, it was not surprising that she became patron of the Centenary of Women's Suffrage in 1984, and she was a consistent advocate for the rights of working women, for refresher courses for women graduates, and the need for shared housework. In 1991 she was appointed Governor of South Australia, again becoming the first woman in Australia to hold that post.

So the last 100 years have been years of advancement of women in the law, not just the profession. In 1966 women were sworn in for jury service for the first time. Justice Tom Gray highlighted the significance of this development in an address to the South Australian Law Students' Council last August, and I quote him. He said:

It is to be reflected that a female complainant in a sexual case prior to that time was faced with a court which was almost always an exclusively male environment, complete with a male judge, male associate, male counsel, male court attendants and an all-male jury. That constitution is to be contrasted with a sexual case being heard today, on 6 August 2010, before Justice Nyland, the most senior female judge in this state. The court today involved a female judge, female associate, female counsel for both the defence and the prosecution, a majority female jury and a male complainant. This reflection demonstrates clearly the degree of change which has occurred in the profession over the course of the past 50 years.

I must say I was stunned to hear that women did not serve on juries until 1966.

While the first half of the 100 years saw outstanding women emerge, there were not many of them. In the 1950s only 5 per cent of law graduates were female. Australia-wide, fewer than one in five of all law graduates were women until the 1970s. I entered law school in 1978 and in the decade that followed the proportion of women graduates grew to almost half of some law schools.

The number of women lawyers has increased, but not dramatically. In 1947 only 2 per cent of all practising lawyers in Australia were women, compared with 17 per cent in 1986, and by 1991 it had risen to 25 per cent. Today the total number of graduating law students is around 500 a year, and I understand that 60 per cent of these are women.

The emergence of women's organisations in the law has been relatively slow. The first such association was the Women Lawyers Association of New South Wales, which was formed in 1952. South Australia was the second-last state to follow suit and establish such a body in 1989.

Australian women lawyers are increasingly represented in the top ranks of leadership. The Governor-General and the Prime Minister are both former lawyers and, of course, the Liberal Party in this parliament is led by a woman lawyer and Vickie Chapman, a shadow minister, is also a female lawyer. Female representation has increased in the judiciary also, with three members of the High Court currently being women.

Despite the recognition and greater representation of women in the profession, it is well-known that females are still under-represented in the ranks of senior partnerships and management roles. As far as South Australia is concerned, of the 47 members of the South Australian bar, I understand that 27, which is about half, have less than five years' experience.

The female senior counsel were appointed in 1982, 1994, 1996, 2004 and 2009. In South Australia, 21.9 per cent of barristers are women, and we are the third-highest ranked state; and 11.1 per cent of Queen's Counsel are women, and we are the second-highest ranking state. As at 3 March 2011, 29 per cent of federal judicial officers in Australia are women, and South Australia is lagging only slightly behind that rate, with 27 per cent of judicial officers being women. Having quoted these stats, I do not want to leave the impression that equity is simply reflected by statistics.

In 1997, the Hon. Justice Mary Gaudron, the first female High Court judge, delivered a speech to launch Australian Women Lawyers where she said:

We are all different, with different talents and virtues, having different circumstances, different ethnic, social and economic backgrounds, and different needs. Equality is not blind to those differences; nor is it antipathetic to excellence, individualism or, even, the desire to be different. On the contrary, equality involves the recognition of genuine difference and, where it exists, different treatment adapted to that difference...Surely, it is not too much to hope that it will soon be the reality, if for no other reason than the failure to acknowledge and tolerate difference is, in truth, cruel oppression.

Similar assertions of the distinctive contribution of women were made at the recent Advocacy Conference at the University of Adelaide on 4 February 2011. One of the sessions at the conference was called 'Gender evolution and revolution, marking the centenary of the Female Practitioners Act 1911'. One of the women barristers participating in that session was Elise Holmes, who commenced her presentation with this Timothy Leary quote: 'A woman who seeks to be equal with men lacks ambition.' Ms Holmes summarises her argument in the following terms:

My central point is that in my view we should be very careful about expecting or enforcing 'equal outcomes'. For one thing, it's only statistics; for another, there might be reasons which aren't necessarily founded in anything immoral or bad or wrong as to why women might choose different careers to men. Thirdly, the 'interests' of women as a group, the legal profession and the justice system might not necessarily correspond. Finally, focus on 'equal outcomes' might be counterproductive to achieving the kind of cultural shift which may be required to ensure women are not disadvantaged by the mere fact they are women.

Of course, the goals of women (individually and as a group) are a matter for women, but I do think that Ms Holmes' comments highlight that statistics alone may be too thin to reflect the aspirations and the diversity of women.

In conclusion, I will quote from Shelley O'Connell, President of the Women Lawyers Association of South Australia, who wrote to me recently reflecting on the progress for women lawyers in the 100 years since the passage of the act:

From the perspective of the Women Lawyers Association of SA, there is no denying that the position of women in the legal profession has progressed and improved tremendously in the last 100 years, and especially in the last few decades. We are honoured in South Australia to call Dame Roma Mitchell our own, and many remarkable women lawyers have followed in her footsteps, some achieving similarly high judicial appointments.

However, whilst 100 years on there are now more women graduating from more schools than men throughout Australia, it is a very small number of women in proportion who make up the judiciary, Senior Counsel, corporate partnerships, senior government posts, and other high level positions in the profession, both public and private.

There are still many challenges facing women in the profession such as retention and promotion, pay equity, access to flexible work arrangements, sexual harassment and bullying, and equitable briefing of female counsel. We must continue to work to promote awareness of the valuable contribution that women make to the practice and development of the law and to meet the challenges that are preventing women attaining true equality at all levels of the profession and in other areas of the community.

I commend the motion to the council.

Debate adjourned on motion of Hon. I. Hunter.

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