Kim Rubenstein is a Professor in the ANU College of Law and a Public Policy Fellow at the Australian National University. Kim is the Principal Investigator on the Trailblazing Women and the Law Project. This Project includes the Australian Women Lawyers As Active Citizens online exhibition, which was formally launched at the National Library of Australia on November 16 2106.
The Exhibition is part of a wider collection of exhibitions available on the Australian Women’s Register.
Larissa Halonkin is the Legal Researcher on the Trailblazing Women and the Law Project.
Women lawyers stand at the forefront of women’s participation in Australian civic life. As Mary Jane Mossman writes of the first women lawyers in the late nineteenth and early twentieth centuries, while ‘the role of women doctors could be explained as an extension of women’s roles in the ‘private sphere’; by contrast, women lawyers were clearly ‘intruding on the public domain explicitly reserved to men’.
If we think of intruders in a private home – they are dangerous – similarly those women lawyers were perceived by many as dangerous to the public domain. Today, this ‘intrusion’ is far from complete.
One of the earliest intruders in this ‘public domain’ was Flos Greig. Greig was a remarkable pioneer whose determination to practice as a solicitor advanced gender equality in the legal profession in Australia in the early twentieth century. Born in 1880, Flos Greig was the first woman to enter any Law Faculty in Australia in 1897 and she completed her arts/law degree at the University of Melbourne in 1903. Importantly, she began her law degree at a time when women did not possess the right to vote or to stand for Parliament, let alone hold any certainty that she would be admitted to practise law upon graduation from University.
While Greig was intruding in Melbourne, Ada Evans was intruding in the state of New South Wales – when Ada enrolled in the Sydney University Faculty of Law, the Dean, Professor Pitt Cobbett, would not accept women law students. Ada enrolled when he was absent on leave and could not prevent her entry. Upon his return, Professor Cobbett told Ada that ‘her frame was so light that she should become a doctor’.[i] Nevertheless, Ada continued her studies and in 1902 (a year before Greig) became the first Australian woman to complete her law degree.
Self-evidently, there was no precedent of women becoming lawyers in any of the Australian states. Greig and her supporters began a campaign in Victoria to allow women to enter the legal profession and in April 1903 the Parliament of Victoria passed the Women’s Disabilities Removal Act 1903 (sometimes referred to as the ‘Flos Greig Enabling Act’) specifically to allow women to practise law. Indeed, Greig went on to practise law for the remainder of her life, whilst campaigning for causes including children’s welfare, women’s suffrage and adult education, before her death in 1958, aged 78.
Ada’s story was different. It took until 1918 for legislation to be passed to allow women to enter the legal profession in New South Wales, and in 1921 Ada Evans became the first woman to be admitted to the New South Wales Bar. Ada never practiced, however, due to the lapse of time since her graduation, poor health and family commitments.
Edith Haynes in the state of Western Australia had a less successful experience. On 9 August 1904 the Full Court of the Supreme Court of Western Australia decided, in Re Edith Haynes (1904) 6 WAR 209 that the word ‘person’ in the Legal Practitioners Act 1893 did not include a female and Edith Haynes was not allowed to become a lawyer. Perhaps the consequences of finding otherwise were far too dangerous for society at the time. The law was not changed until 1923 when Edith Cowan, the first woman elected to an Australian parliament, introduced a private member’s bill, which became the Women’s Legal Status Act 1923.
Following the introduction of the Legal Practitioners Act of 1905, Agnes McWhinney became the first Queensland woman to be admitted as a legal practitioner in 1915. In Tasmania it was not until 1935 that Nancy McPhee became the first woman admitted to practice in the Supreme Court of Tasmania.
Mary Kitson (later Tenison-Woods) was the first woman to graduate in law (in 1916) and be admitted to the bar in South Australia (in 1917). Furthermore, on being expected to resign from her job on her marriage, she formed what may have been the first female legal practice in Australia (with Dorothy Somerville) in 1925.
Unfortunately, no one sat down to conduct oral histories with Flos Greig, Ada Evans, Edith Hayne, Agnes McWhinney, Nancy McPhee or Mary Kitson – the first women throughout the Australian states who sought to intrude. We cannot hear those women speak in their own words about their lives.
One hundred years after that important Victorian legislation of 1903, her Honour Chief Justice Marilyn Warren was appointed as the first female Chief Justice of the Supreme Court of Victoria and ten years after that, in 2013, we see the beginning of an oral history project on Trailblazing Women and the Law.
Despite this ‘intrusion’ in the first fifty years of the 20th century Australia is far from achieving an equality of women’s participation in the legal world and is still working towards full citizenship for women in the civic sphere.[ii] Within the Australian court system, women judges make up only 35% of the total bench.[iii] In the commercial sectors too, women ‘remain clustered at the lower paid, lower status end of the legal professional hierarchy’,[iv] despite women law students now entering universities in greater proportions than men.[v]
The ‘National Attrition and Re-engagement Study Report ‘ released by the Law Council of Australia in March 2014 confirmed that during 2013-14 women solicitors comprised 61% of all solicitors admitted in that year. However, the Report found a wide gap between the large number of women who enter the legal profession and the smaller number who remain some years later.[vi] As a result, these women leaders in the legal profession remain as the ‘trailblazers at the legal frontier.’[vii]
However, and importantly, the legal frontier can be thought of beyond the more traditional practice as solicitor, advocate or judge in the Courts. Together this exhibition and the Trailblazing Women and the Law oral history project confirm that having a law degree has enabled dangerous women, such as those early pioneers, to intrude into areas of civic public life that have been traditionally occupied only by men. The Exhibition provides a reminder that the only ‘danger’ posed to society is when women lawyers are not able to participate fully in society as active citizens.
[i] See http://www.nswbar.asn.au/the-bar-association/pioneering-women/#/1_ada_evans.
[ii] Kim Rubenstein, ‘From Suffrage to Citizenship: A Republic of Equals’, Dymphna Clark Annual Lecture (29 March 2008). http://manningclark.org.au/papers/suffrage-citizenship-republic-equals (accessed 14 September 2015, no longer available, archive copy via the Wayback Machine).
[iii] AIJA (Australian Institute of Judicial Administration), ‘Gender Statistics’ (March 2016) http://www.aija.org.au/JudgesMagistrates.pdf.
[iv] Rosemary Hunter, ‘Women in the Legal Profession: The Australian Profile’ in Ulrike Schultz and Gisela Shaw (eds), Women in the World’s Legal Profession (Hart Publishing, 2003) 93; Margaret Thornton and Joanne Bugust, ‘The Gender Trap: Flexible Work in Corporate Legal Practice’ (2007) 45 Osgoode Hall Law Journal 773.
[v] CLE (Centre for Legal Education), Australasian Legal Education Yearbook (CLE, 1998); A Patterson, Bendable or Expendable: Practices and Attitudes towards Work Flexibility in Victoria’s Biggest Legal Employers (Law Institute of Victoria, 2006).
[vi] National Attrition and Re-engagement Study (NARS) Report (2014). http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/NARS%20Report_WEB.pdf.
[vii] Margaret Harrington, Women Lawyers: Rewriting the Rules (A.A Knopf, 1994) 7.