10/08/2004 - 22:00

Balancing the scales in justice

10/08/2004 - 22:00


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The Women Lawyers of WA (Inc) celebrated a milestone this week – 100 years since Edyth Haynes’ application to practise law was denied. Marsha Jacobs reports on that decision and profiles some of the State’s top legal minds.

Balancing the scales in justice

The Women Lawyers of WA (Inc) celebrated a milestone this week – 100 years since Edyth Haynes’ application to practise law was denied. Marsha Jacobs reports on that decision and profiles some of the State’s top legal minds.


When the Full Bench of the Supreme Court of Western Australia ruled 100 years ago against admitting women as a legal practitioners, its decision was based on an interpretation most would find quite absurd today.

The sole issue that governed the Full Bench’s ruling was deciding whether women fell within the definition of “every person” under the Legal Practitioners Act (1893).

It was held unanimously that they did not.

It is quaint history now, but at the time the then Chief Justice Parker in his judgment said the idea of women practising in the Supreme Court was “quite foreign” to the legislation that had prevailed for years, not only here but in the “mother country”.

Justice Parker went on to say that: “If the Legislature desired that a woman should be capable of being admitted as a practitioner of this court, or indeed if the Legislature intended to make women eligible for admission to the Court, they should have said so in express language”.

In that ruling, Justice Burnside professed that the right of women to be admitted was a misnomer.

“In days gone by, to go back into history, no-one had a right,” he said.

“The right to appear other than in person was first legalised in days very far back, before women were regonised in any legal capacity, except as regards to the safety of their persons under the Criminal Law, and the so-called right does not appear to me to be a right at all.”

And with that, Edyth Haynes’ application to be admitted as a legal practitioner was rejected.

This week marks the 100th anniversary of that decision, with Miss Haynes’ achievements celebrated by the Women Lawyers of WA (Inc) at the Supreme Court.

To mark this occasion, and to celebrate the progress made by women in law, WA Business News has profiled five women from the profession, all who are forging their own paths in different ways.

While women have come a long way in the law in the past century, obstacles are still prevalent in both the structure and mentality of a profession historically created by men for men, which has slowly had to change its own paradigm to take women into account.

Considering that, since the earliest implementations of common law, women were seen as property and not as autonomous individuals – a view that changed little until the 20th century – the achievements of the women profiled are remarkable.

Women have represented more than 50 per cent of law graduates from the University of Western Australia since 1990, and lingered within 5 per cent of that figure for the 10 preceding years.

However, this statistic is not reflected in the upper echelons of the profession – at the judiciary, the bar, partner level, or indeed by the profession generally, with women representing 36 per cent of resident lawyers last year.

Women Lawyers of WA president Penelope Giles attributes this to a structural process in the law that needs to be changed, rather than something which the passage of time will correct.

“There is not just a problem with appointing women to senior positions, there is a problem with women leaving the profession in greater numbers than men,” she said.

“Firms expect long hours, total commitment and very hard work. They seem to have a blind spot in terms of outside lives or family responsibility, although things have improved and changed a lot in the last five years.”

A Law Society report on the retention of legal practitioners in 1999 confirmed that a large number of people were leaving the profession, particularly early in their careers, and that a disproportionate number of these were young women.

The report concluded that: “What is required first, however, is an acknowledgement that a problem exists.

“The changing demands of the new workforce suggest that, perhaps, there is little choice.”

The women profiled in this feature all have differing views on women in the law, and all offer insights through their own experiences.

And it is not just the law that grapples with the issue. Women directors make up only 7 per cent of board members in Australia, even though companies with female directors are twice as likely to make a profit as those with all male boards.


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