Theme Law

Written by Hollie Kerwin, formerly Australian National University and Kim Rubenstein, Australian National University


Women lawyers provide a curious and contradictory picture of women's leadership in Australia. Female members of the legal profession are expertly poised to act in accordance with even the most mainstream concepts of leadership, as 'a behaviour which impels others to act, think or feel in a particular way' (Shaw, 91). By virtue of their legal training and the heightened social and cultural capital afforded by their professional positioning, women lawyers are exceptionally well equipped to devise, negotiate, effectively advocate and ultimately 'impel' any given action. At the same time, lawyers' particular professional activities are often quasi-governmental and intercede directly in public space in courtrooms across the country, and consequently in the habits and limits of societal conduct. As a result, women lawyers should exist, as Harrington writes, as exemplars of women's civic participation because law is always 'powerfully implicated in the ordering and the reordering of the society' (Harrington, 7). In addition, as the law degree has become a tool used by women across multiple professions, the legal skill set has come to inform the work of women lawyers practising as businesswomen, academics, journalists, lobbyists and bureaucrats, in addition to women judges, solicitors and barristers. No greater example of women lawyers' leadership capacities needs mention than the present appointees to the two most powerful governmental roles, governor-general and prime minister, both of which are or have recently been staffed by women lawyers with impressive careers in practice areas spanning academia, child advocacy, human rights and industrial relations (Bryce; Kent).

The picture of leadership by women lawyers across the profession itself, however, does not easily reflect women lawyers' capacity to lead, despite the appointments of trailblazers like Prime Minister Gillard and Governor-General Bryce. Instead, a much more complicated picture of women lawyers in leadership emerges, in which women lawyers have simultaneously engaged in leadership behaviour and overwhelmingly remained outside the conventional leadership positions, 'concentrated at the lower levels-in managed positions-either as employed staff or in support roles' (Thornton, 2004, 3), with their leadership often staged within historical movements. This essay details this picture, before turning to analyse how and in what contexts women lawyers' leadership has been permissible and visible. We then offer some analysis of why women's demonstrated potential as leaders has not translated to render appointments like those of the recent prime minister and current governor-general commonplace. Finally, we revisit the concept of leadership itself, drawing on the recorded oral histories of the Australian Trailblazing Women and the Law Project and parallel international scholarship on women lawyers and leadership to highlight the potential limitations of and discomfort with the term 'leader' for many 'leading' Australian women lawyers.

Picturing Women Lawyers in Leadership

Women in Professional Authority Positions

Since 1998, women have occupied more than half the names on the graduate lists of each Australian law school (CLE; Patterson) but continue to be underrepresented in leadership roles of the profession's hierarchical practising structure. In the four most populated practice fields for lawyers, authority and seniority are clearly marked-positioning women from junior solicitor to partner in solicitors firms, junior barrister to senior counsel at the Bar, law clerk to chief justice or magistrate in the judiciary and associate lecturer to professor in the academy. Despite reports since 1970 that female law students consistently achieve higher marks than their male colleagues (Mathews, 636-7), women in each of these four areas continue to be 'clustered at the lower paid, lower status end of the legal professional hierarchy' (Hunter, 2003a, 93; Thornton & Bugust). In 2002, for example, Justice Michael Kirby observed that only six women had 'speaking parts' before the High Court that year (Kirby, 148). In 2004, Margaret Thornton's research revealed only 1 per cent of senior counsel were women (Thornton, 2004, 3). Similarly, at the close of the 20th century, only 15.5 per cent of professorships in Australian law schools were held by women, despite their comprising over half of the general lecturing staff (Hunter, 2003a, 99). Within the court system, women judges make up only 33 per cent of the total bench (AIJA) with only two women, Chief Justice Marilyn Warren of the Victorian Supreme Court and Chief Justice Diana Bryant of the Family Court of Australia, at the head of the ten Superior Courts of Record in Australia. It should be noted, however, that, within Australia's highest court, Justices Virginia Bell, Susan Crennan and Susan Kiefel now occupy three of the seven seats on the High Court bench.

Women lawyers are also peculiarly absent from the executive ranks of the professions' powerful state, territory and federal law societies and bar associations, in some cases literally so. The bar associations of Tasmania and South Australia, for example, are yet to have a woman leader (pers. Comm., Tas. BA, 2012; pers. Comm., SA BA, 2012). Across all other jurisdictions, the Law Society of Western Australia possesses the highest number of female presidents to date, having had six women hold the position in the 82 years since women were admitted to practice in that state (pers. Comm. LS WA, 2012), Interestingly, and in keeping with the trends noted above across the four core practice fields, a survey of all societies and associations in 1999 counted relatively high participation (between 13 and 50 per cent) by women in non-executive positions (Hunter, 2003a, 98).

Leadership Despite and Outside Conventional Professional Positions of Authority

Professional Pioneers

When the frame of women's leadership is extended outside the professional legal hierarchy, however, women lawyers appear as leaders in every single decade since Australia's first women law graduate in 1902. Pioneer women lawyers, by their very presence have led the way for the future entry of women into legal careers, frequently fighting legal battles of their own to secure the right of women to practice.

The first woman law graduate, Ada Evans, led a sixteen-year lobbying campaign (from 1902 to 1918) in NSW to overcome her exclusion by the state's governing rules from admission as either a solicitor or barrister (J. O'Brien, 1981). She was admitted to the Bar in 1921 but did not practise. Sibyl Morrison, the first woman to practise after her admission in NSW in 1924, reaped the rewards of this struggle (J. O'Brien, 1986). Like Evans, Edith Haynes, the first woman graduate in Western Australia, challenged the refusal of her request to sit the Bar examination before the Full Court of the Supreme Court (Re Edith Haynes, 1904; Malcolm), arguing, contrary to convention, that women were 'persons' for the purposes of the Legal Practitioners Act 1893. She failed and 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.

In Victoria, however, a special Act was passed in 1903 to enable the state's first female law graduate, Flos Greig, to be admitted to the Bar. Dubbed the 'Flos Greig Enabling Bill', it was explicitly designed 'to remove "some anomalies in the law relating to women", thus permitting her (and subsequent women) to be admitted to legal practice'. In August 1905, Greig became the first woman admitted to the Bar in Australia (Campbell & Hack). In South Australia, Mary Kitson (later Tenison-Woods) was the first woman to graduate in law (in 1916) and be admitted to the bar in that state (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 (A. O'Brien). As late as 1976, Marilyn Warren, now chief justice of the Victorian Supreme Court, challenged similarly entrenched prejudices in the state's Crown Solicitor's Office, arguing her own case to the Public Service Appeals Board against the public service exclusion of women from the 'nastiness' of the criminal law branch (Porter). It was similarly a long haul for women to be recognised as senior counsels. Although Victoria's Joan Rosanove had submitted applications from 1954 to be made a QC, she had to wait until 1965 (Falk). The first Australian woman QC was, in fact, South Australia's Roma Mitchell in 1962. Mitchell was also the first woman to be made a judge of the Supreme Court when she was appointed in South Australia in 1965 (Magarey & Round; Heywood). She was still the only woman in Australia in that position when she retired in 1983, though the Whitlam Labor government had appointed Elizabeth Evatt and Mary Gaudron to federal courts in 1973 and 1974 (Heywood; Lemon).

Outside technical legal battles, legal pioneer women also continue to blaze a trail for women in the cultural terrain of the profession. Moments of challenge pepper the history of women in the law, at times in incidental ways. Small moments have the power to create a lasting impact, such as the 1924 retort by Joan Rosanove to the question from the High Court bench 'with whom is my learned friend appearing?' that she was in fact 'appearing with myself. I am the leader of the female bar' (Victorian Bar, 2007). Similar disruption to the homogeneity of the judiciary followed, for example, in 1967 when Queensland's first practising barrister, Naida Haxton, drew attention to the now apparent insufficiency of the single sex 'robing room' of the Queensland Supreme Court (SCQLD, 2003).

Direct challenges outside the incidental also abound, not least including Flos Greig's 1909 proclamation in the Commonwealth Law Review in an article entitled 'The Law as a Profession for Women' that 'the woman lawyer … is wanted now, and must take her place' (Greig, 147). Eighty years later, Australia's first High Court judge, Mary Gaudron, made a similarly direct and well-publicised challenge to the gendered norms of legal culture by refusing to attend or accept the invitations and honorary memberships of the exclusive 'men-only' clubs traditionally attended by the full High Court bench (Burton, 270).

Women Lawyers as Reformists

Turning their legal skills to unpack, explain and enact change, women lawyers have also often figured as the protagonists and insiders of key national reform campaigns. As prominent businesswoman, lawyer and feminist Eve Mahlab recalled of joining a nascent Women's Electoral Lobby in 1972, 'the first thing they got me to do because I was a lawyer was draft their constitution' (Mahlab in ABC, 1985). Reflecting in 2013, Mahlab considers that her task was more a 'redrafting' of the very early written intentions of the WEL. Like Mahlab, Governor-General Quentin Bryce similarly recalls the twinning of her legal skills and reform intent. As she remembers it:

"In the 70s... I was pre-occupied with child advocacy issues; working with people who thought I knew much more than I did and thought that a woman lawyer would be useful. I learnt about grassroots political action and the view that I had formed at 16 that law was a useful tool in reform was confirmed." (Bryce, 7)

As litigants in 'test cases' women lawyers continue to force action within the law, injecting their own experiences into the civil justice system to bring change. In very recent times, for example, Eualeyai and Kamillaroi woman lawyer Larissa Behrendt joined with other Indigenous applicants to commence the successful Racial Discrimination Act proceeding against journalist Andrew Bolt (Carrick and ABC, 2011; Eatock v Bolt, 2011). Barristers and solicitors, too, have lent their advocacy skills to securing and defending the civil liberties of minority groups and activists in social justice campaigns. High Court Justice Virginia Bell completed her law degree in 1977 and immediately began practice at the revolutionary Redfern Legal Centre. By 1978, Bell, herself an original '78er of the Sydney Gay and Lesbian Mardi Gras, defended the 53 people arrested in this first protest (Spigelman) and afterwards continued to protest against police harassment of minority groups and activists under the Summary Offences Act. As a defender of public rights, Justice Bell was both professionally and popularly recognised as a leader, illustrated by her celebration by 1980s Sydney punk band Mutant Death in their song 'Police Verbal', as follows: 'The police, they came and got me; They threw me in a cell; They said I had one phone call; I rang Virginia Bell' (Digby).

As with their work in social justice campaigns, leading women lawyers can also be seen driving reform to the profession. Issues such as maternity leave, part-time employment, billable hours in firms, publication pressures in universities and the immense expectation of informal socialising by senior lawyers across the field have proved to be keys to women's health and success in employment (Keys Young; Graycar & Morgan, 423). In response, women lawyers themselves have been at the forefront of moves, be they academic, private, litigated or political, to ensure greater flexibility, balance and support for women at work. In coalition with other lawyers, key women have formed associations like Australian Women Lawyers, at times gathering in their hundreds to demand workplace change (Naidoo, 4). Inside prestigious firms, individual women have also championed reform. Elizabeth Broderick, for example, now the Commonwealth sex discrimination commissioner, made 'the business case' for part-time (women) lawyers to leading firm Blake Dawson Waldron while employed by the firm, leading to a shift in the profession towards flexible working arrangements (ABC, 2011). Individually, too, discrimination actions, like lawyer Marea Hickie's 1998 claim in Hickie v Hunt and Hunt (1998), have backed in professional policies and 'business cases' for sex equality with legal precedent and financial sanctions. In Marea Hickie's case, the Human Rights and Equal Opportunity Commission held that the decision by the national law firm, Hunt & Hunt, to terminate her employment after she applied to work part-time on return from maternity leave was discriminatory. She was awarded $95,000 damages and the case continues to influence the limits of conduct in both legal and accountancy firms (Rolands).

Women Lawyers as Feminists

The history of Australian feminism is heavily populated with the names and actions of women lawyers. From the early decades of the 20th century, women lawyers have acted as advisers to women's organisations on matters affecting women's rights and equality before the law. As early as 1905, the annual conference of the National Council of Women of Victoria (NCWV) heard a paper by Flos Grieg on 'Some Points of Law Relating to Women and Children', dealing with 'some anomalies of the divorce law' (Argus, 26 October 1905, 6). In the 1920s, NSW's Sibyl Morrison addressed a federal conference of the NCWs on the same issue and served for many years as the NSW Council's laws committee convenor (J. O'Brien, 1986). In the interwar years, Joan Rosanove regularly advised the Victorian Council on marriage and divorce law too; marriage, she told them should be based on 'the idea of partnership and equality', rather than the husband's ownership of the wife (Norris, 67-9). From World War I, Anna Brennan, the second woman admitted to practise in Victoria, was advising NCWV on questions relating to the nationality of married women and she represented the Australian NCW on a Commonwealth government committee of inquiry into the subject during World War II (Campbell & Morgen). Roma Mitchell, too, was an advisor to South Australia's NCW as well as laws convenor for the NCW of Australia in the 1950s.

Second-wave feminists similarly turned to women lawyers for advice and comment. In the 1970s, the pages of 'Accent', the 'women's section' of the Victorian broadsheet, the Age, reported that '[t]wo Melbourne solicitors, Eve Mahlab and Judy Hogg, say they are "overwhelmed" with the way the law reflects the traditional view of women' (reprinted in Kon, 28-9). Mahlab and Hogg worked alongside and within the Women's Electoral Lobby through the decade, campaigning for reform to family law and rape law (Latreille, in Kon, 28-9), to end sexist advertising of legal and non-legal employment (Mahlab & Rubenstein), to enable no-fault divorces and 'the recognition of non-cash contribution made by women in the home' (Mahlab, 1974, 15). In the 1980s, the Feminist Legal Action Group (FLAG) was founded by legal academic Margaret Thornton, now one of the few female legal professors in Australia, with Joan Bielski from the Women's Electoral Lobby (Ross). According to legal historian Ann Genovese, FLAG was central to the development of 'Australia's nascent feminist legal praxis' (Genovese, 49). As Margaret Thornton recalls it:

"we wanted to use the law to run test cases and things like that. We made submissions and lobbied for changes to laws affecting women... we sponsored the first research on women convicted of the murder of their husbands after years of domestic violence. This work was instrumental in having the law on provocation changed in New South Wales. Subsequently, I went on television with Helen Coonan to talk about FLAG's work. Helen said that FLAG would love to hear from women with problems in family law, etc. The next thing we were inundated with letters from all around Australia. It was just impossible. We virtually sank under the weight of that." (Thornton, 2011)

In the 1990s, lawyer and academic Kim Rubenstein, together with barrister Susan Brennan, enlivened by the 1998 commemorative Constitutional Convention, planned by (then) Prime Minister John Howard, wrote a petition signed by women around the country to demand that women comprise half of the government-appointed positions to the convention. Such a move, they argued, would have provided a powerful counterpoint to the original 1898 Constitutional Convention, which had produced the final draft of the Australian Constitution without a single woman in attendance. When equal numbers were not appointed, Kim Rubenstein and Eve Mahlab, with barrister Helen Symon and non-lawyers Ann Morrow, Fay Marles and Leigh Mackay, ran on a dedicated women's ticket for the remaining elected positions, drawing support from the Victorian Women's Trust, Women's Electoral Lobby, YWCA, Victorian Women Lawyers, Women Barristers Association and Feminist Lawyers. Similar gendered attention occurred through the country, and a dedicated Women's Constitutional Convention, organised by Australian Women Lawyers, Constitutional Centenary Foundation (ACT Chapter), National Women's Justice Coalition, Women's Electoral Lobby, Women into Politics and YWCA of Australia, was held prior to the mainstream convention with over 250 participants (Land; Records of the Women's Constitutional Convention 1998; Women's Constitutional Convention Outcomes).

Women Lawyer Leaders inside Government

Inside leading government institutions, including the parliament, judiciary and bureaucracy, women and feminist lawyers have also made a distinct mark. In the 1990s, Magistrate Pat O'Shane's decision in the now infamous Berlei Bra Case highlighted the real potential in Australia for a kind of 'feminist judging' mooted in academic circles internationally (Gilligan; West; Hunter, McGlynn & Rackley). In the case, O'Shane dismissed charges against five Sydney women for defacing a billboard advertisement, despite finding the charges proved. The advertisement featured a woman wearing only underwear, preparing to be cut open in a magic trick, prompting Magistrate O'Shane to declare that 'the real crime in this matter was the erection of these extremely offensive advertisements' (in Lilburn, 5). Inside the bureaucracy, feminist women lawyers like Gae Margaret Pincus and Joan Sheedy featured in the ranks of 'femocrats', feminists who led and facilitated change to women's lives from inside the bureaucracy, working within the federal Office of Women's Affairs during the 1980s (Pincus & Dowse) and on important reforms such as the Commonwealth Sex Discrimination Act. The last two terms of government have also seen two very important appointments in politics, first of Julia Gillard as prime minister (in 2010) and second of Nicola Roxon as attorney general (in 2011). Both women lawyers' appointments are firsts in Australian history and mark out new territory for women. In these roles, lawyering remains key to their leadership-with Roxon as the chief law officer of the Commonwealth and Gillard as the 'legendary negotiator' (Swan, cited in Marles) of the Australian Labor Party's 2010 to 2013 minority government.


Realising Women Lawyers' Leadership Capacities

A review of the picture of leadership by Australia's women of law produces a realisation, albeit only partial, of women lawyers' leadership capacities. From Evans' emergence as Australia's very first women graduate to the appointments of Bryce, Gillard and Roxon, we can observe an increase in the diversity, the organisation and the cultural acceptance of women lawyers at the helm of civic activity. This can be attributed to a range of critical changes to women's working environments, both formal and informal. In one sense, the ascension of women lawyers as leaders has paralleled the access of women to the law as a profession. While the forecast 'trickle-up' effect from law school to senior leadership has certainly not occurred (Bryant), the removal of formal barriers to university law schools, articles, Bar examinations and nominations for senior counsel have all increased women's access to the legal profession and, hence, the leadership opportunities canvassed above. Corresponding affirmative action appointments to the judiciary, such as those in South Australia during 2007 (Atkinson), and the flexible employment arrangements now offered in some legal roles, have further improved women's access to and retention in leading roles.

Informal adjustments in the 1960s and 1970s to the social and economic positions of young women lawyers also transformed the depth of women's engagement with the profession on a large scale. Critically, these changes have also allowed women an opportunity, at the least, to maintain their place in work hierarchies. As trailblazing woman lawyer and judge Mary Gaudron has explained:

"The decade of the 60s was a decade of revolution, and not just the sexual revolution. The Commonwealth Scholarship scheme made it possible for more women to study law; the contraceptive pill made it possible to pursue marriage and a career in law." (Gaudron)

Particular historical moments and circumstances have also 'turned' women lawyers into leaders and women leaders, interestingly, into lawyers. Once access to the profession was established in some form, both the early and recent women's movements deployed women lawyers' skills to great effect, while also fostering their careers outside the still restricted legal authority positions. As Margaret Thornton has explained of her own path to feminist, legal academia:

"It wasn't until I had children and was influenced by the women's movement that I started a law degree. When I completed it and was thinking about what to do, it was rather a shock to be told that I was the best qualified but the wrong sex, so I became an academic, which allowed me to critique the system." (Thornton, 2011)

Thornton was not alone in her admission to law via feminism. Inside the Women's Electoral Lobby, too, Sawer explains that:

"those who had been secretaries, too, found it a revelation to have their contributions taken seriously at meetings; to be listened to rather than put down. This generation joined WEL, saw other women in action, learned to write submissions, interviewed politicians, debated issues in public forums and then, fired up, went out into the world. They went back to school, to university … Barbara Coddington, a former secretary and housewife who plunged into WEL work in Sydney, found how important the law was to everything women were trying to achieve. So she went to university and became a lawyer. With her new sense of self-worth she was "nobody's handmaiden anymore". "(Sawer)

Both World War I and World War II were particularly critical moments in women lawyers' leadership growth. In the wake of the labour shortages produced by the war effort, fully qualified legal women began to be employed in place of men. These footholds in the profession then led to further action by women as both pioneers and reformists, and sometimes as feminists. During World War I, for example, pioneer Edith Haynes, who, as detailed above, was denied access to the bar in Re Edith Haynes (1904), gained employment within the legal department of the National Australia Bank, remaining there even after the return of servicemen (Malcolm). When World War II broke out, female lawyers were once again called on, particularly to the public service. In 1942, Una Prentice became the first woman lawyer employed by the Commonwealth crown solicitor. After the war, she anticipated dismissal-particularly as a married woman-but by that time Prentice's professional and leadership horizons had been expanded. Instead, she resigned in 1946, joined the Brisbane firm of Stephens & Tozer and became the Australian president of the Business and Professional Women's Association, touring England detailing the status of women in Australia (SC QLD 2003).

Professional alliances and networks of support between women lawyers have also played important roles in fostering continued growth in women lawyers' leadership. Connections within and across generations between key leadership figures abound in Australia and internationally (Hope). In law, informal networks and mentorship, in particular, shepherd and partly protect women lawyers as they navigate the very difficult terrain of competing for promotions and career success where the critical indicia and catalysts for success remain contoured by the existing male norms underwriting legal culture. Studies of relationships of support and mentorship within the community show that these networks can keep particular women afloat in the homosocial, typically male-male networks inside the legal sector. Biographical research into individual leading women in law in Queensland (SC QLD 2003) has revealed the myriad of intergenerational connections between these trailblazing women lawyers. For example, in 1929, Elizabeth Hamilton Hart, the second solicitor to practise in Queensland, attained articles working with her father at the firm Flower and Hart, exceptionally becoming a partner in 1938. In this position, Elizabeth then articled young women lawyers herself, in 1966 taking on Naida Haxton, the first women to practise at the bar in Queensland, and early university peer of Quentin Bryce, now governor-general. In a similar process, in 1933, Clare Foley (née Pender) completed her articles with her brother before they set up a family firm together, Pender and Pender. Foley later sold Pender and Pender to Mary and Eric Whitehouse, a lawyering couple, after Mary Whitehouse left the Commonwealth Crown Solicitors Office in Brisbane where she and Una Prentice had supported each other in their trailblazing roles as Commonwealth legal officers (see profiles in SC QLD 2003).

These patterns have continued to occur in recent times, and not only between women. As Valerie French, Western Australia's first woman barrister (in 1975), explains of her exceptional trajectory from articles to the bar and ultimately the bench: 'I have all these stories of all these people being so supportive' (French & Rubenstein 2010; Kerwin & Rubenstein, 179-180). These stories include male barristers sharing office space with her in the till then male-only chambers and work in her husband Robert French's firm after leaving the Bar part-way through her first pregnancy. Fellow female practitioners Kim Rooney and Sheila McClemans passed 'bits and pieces of work to her' when she returned to the bar after having children. Similar arrangements are now supported and nourished through Australian Women Lawyers. Emotionally, too, these bonds between practitioners appear to secure and sustain women in the 'hard times', which are popularly reported to cause many women's withdrawal from the legal setting (Thornton, 1996). As Quentin Bryce recollects of her life in the early 1970s:

"I was flat out on the Shirley Conran superwoman track. I had five little ones under seven and I wanted to be the perfect everything-wife, mother, neighbour, worker, activist, hostess… I was supported in this madness, chaos and exhaustion, balancing too many competing priorities by my dear friends, Patsy Wolfe and Margaret White. We'd sit on each other's back verandahs, sipping spritzers, our kids rushing about. We complained about our husbands. Why did they always come home after the feeding, bathing, story, bedtime schedule? Why couldn't they wipe benches down properly? We planned our futures, a wonderful new legal business for Brisbane, its exact nature not clearly identified but three partners and a clever name-Money, Power and Prestige. I'd never have survived without their wit and wisdom, their warmth, their generosity in those crises which beset all of us from time to time." (Bryce)

Having weathered their crises together, Wolfe became the chief judge of the District Court in Queensland, White a justice of the Queensland Supreme Court and Court of Appeal, and Bryce ultimately the governor-general.

Outside the practice field, mentorship also has achieved results in propelling some women into authority. After establishing her own legal recruitment company 'Mahlab Recruitment', Eve Mahlab employed a staff of women lawyers herself, explicitly mentoring these women employees. Ultimately, one mentee, lawyer Katherine Sampson, bought the recruitment business and now continues the business model (Mahlab & Rubenstein). In academia too, research suggests that mentors enable protégés to accumulate merit through invitations to participate in research projects, to present guest lectures and to join influential committees (Hutchinson, 176).

Ongoing Barriers to Leadership for Women Lawyers

Gendered Cultural Norms in the Legal Community

Despite the realisation of and support for some women lawyers' leadership capacities, women lawyers do struggle overall to retain leading authority roles. One explanation for this, put simply by Gaudron, is that 'the profession [has been] less than welcoming'. This experience of 'being unwelcome' was recently unpacked in a series of anonymous interviews conducted with women lawyers at the Victorian Bar. In their 1998 study, Hunter and McElvie repeatedly uncovered a story from women lawyers linking their isolation from the existing homosocial networks at the Bar to their failure to succeed professionally. As Hunter argues, the obvious physical changes to women's bodies during pregnancy, their absence from the Bar's heavy social calendar while on leave and their modified working hours on return, position them outside the existing male norms underwriting the Bar's culture (Hunter, 2003b, 103).

Linking of 'Merit' and 'Masculinity' in the Profession

In a similar way, Margaret Thornton's analysis of interview research with women across the profession has noted the coding of meritous behaviour, worthy of promotion, authority and respect, in terms of a male benchmark. As Thornton explains, culturally, women are granted acceptance and authority only where they conform to the standard of 'the benchmark man' who is 'invariably white, heterosexual, able-bodied, politically conservative, and middle class' (Thornton, 1996, 2). As a result, when women dress differently, behave differently-working part time, or appearing differently-as in the case of pregnancy, they are inherently defined outside legal authority. Particular leadership behaviour, too, can position women 'outside the male benchmark'. As Thornton suggests, 'if you adopt a more collaborative style as a woman, there is a suspicion that you are weak' (Thornton, 2011).

Damage to the Impact of Women's Informal and Formal Associations

Beyond its general debilitating effect, the structural and cultural gender trouble identified by Hunter and Thornton also complicates and problematises the potential help provided to women lawyers by the mentor-protégé strategy. At least in the higher ranks of the legal hierarchy, 'woman to woman' networking unequivocally situates these lawyers 'outside the male benchmark' and at odds with the dominant masculine culture of the legal community. Such sentiments are not simply theoretical. In her study of the Victorian Bar, Hunter repeatedly heard women lawyers recount such contradictory difficulties. As she explains, one woman,

"told of how her Master had begged her not to join the WBA because she would be labelled as "a woman barrister or different to the men, or [wouldn't] be seen as a real barrister", and described a category of women at the Bar who see themselves as having to be men to get ahead." (Hunter, 2002, 120)

The recent oral history interviews of the Trailblazing Women and the Law Project have also recorded instances of difficulty and tension experienced by women looking to access the advantages of a women's network within normatively male legal environments. In her oral history, for example, Eve Mahlab recollects an experience of sitting with the only other female colleague at a pre-meeting lunch and then again at the table of the university council meeting. As she remembers it:

Eve Mahlab: On one occasion I, and another woman… It was just logical that we'd sat together to lunch so we went to the meeting and we sat next to each other. And, one by one, about four or five men came up and asked if we were planning a takeover.

Kim Rubenstein: By sitting together?

Eve Mahlab: By sitting together, yes. But it, it was… It's so surprising that they were so threatened by having two women sit together. Although, I must say, I think two women sitting together are quite a force.

While networking and mentoring relationship are certainly not at fault in this dilemma, the dynamic may, nevertheless, work to diminish the strength and impact of collective support strategies, which, in isolation, seem to offer such promise.

Questioning 'Leadership' Itself

Finally, though not strictly a 'barrier to leadership', it must be noted that a sense of discomfort can be discerned in the narratives of leading women lawyers with defining their experiences within a leadership discourse at all. Some women lawyers do strongly identify with the concept of leadership. Justice Margaret Sidis of the NSW District Court and ACT Supreme Court, for example, is unequivocal. As she says:

"Yes, I do like to think of myself as a leader, not only for women but for members of the legal community generally… I rarely pass up an opportunity to go and talk to a women's group when invited to do so" (Sidis, in 'Interviews with Leaders').

Other lawyers, however, are reluctant to pursue the term and its meanings when discussing their lives. In Australia, interviews with former Justice Valerie French and businesswoman Eve Mahlab reflect a range of feelings about how the term 'leadership' fits. For Eve Mahlab, despite having produced documentaries, written countless editorials and founded workshop programs literally under the banner of leadership, she herself prefers to see her actions as catalytic, rather than 'leading'. On the topic she reflects:

"I think I'm basically… I love introducing people to each other, you know. And I love the catalytic effect of bringing people who have common interests or, or might have a synergistic effect. And even now I think of myself as catalyst." (Mahlab & Rubenstein)

For Valerie French, the issue is not merely semantic or solved by a reconceptualisation of her role. Despite 'leading' the entry of women into the insulated Western Australian legal profession, in being the first woman to sign the Bar roll, she does not situate herself within the discourse at all (Kerwin & Rubenstein, 183). When pressed on her sense of herself, even as a role model, she explains:

"I think it's hard to see yourself as a role model, because it's like you-you're around, you're looking for role models everywhere else, and suddenly you go, what? You know, all the policeman are getting younger, and the judges are getting younger, I'm the role model. No, you don't see yourself like that." (French & Rubenstein)

In Canadian legal practice and Australian academia broadly, professional women have also discounted their 'leadership' identity. In each setting, Hatfield and Wilkinson and Blackmore suggest that in 'talking leadership' women lawyers work hard to construct their subjectivity around the 'frequent mismatch that [arises] between… Societal discourses and media representation… And the individual women's subjective experiences of leadership' (Wilkinson & Blackmore,123). In Hatfield's research, some women, aware of the cultural antagonism 'women's leadership' can cause in the legal community, distanced themselves from the term (Hatfield, 148; Hatfield & Radtke). Like French, Hatfield and Radtke's interviewees 'simply' defined themselves as 'someone who has been around a long time' (Hatfield, 107). It must be noted, however, that cultural antagonism may not be the only reason that some women find the label of 'leader' uncomfortable. These issues suggest the need for further research and care when ascribing 'leadership identities' and motives to women lawyers in otherwise authoritative positions.


Women lawyers in Australia do 'impel others to think, act or feel a particular way' (Shaw). Throughout the 20th century, they have done so in slowly increasing numbers, and with increasing heights of authority, despite the ongoing barriers presented by the synonymy between the 'benchmark male' and merit, and the profession's gendered culture. Women lawyers have enacted change, set agendas and created sites of influence from the lobbying efforts of the first women law graduate through to our first female prime minister.

Despite their relative absence from conventional positions of authority, in 'leadership' women lawyers have wielded an authority drawn from their legal knowledge and advocacy skills and their professional connections, acting as professional pioneers, social justice reformists, feminists, government ministers, bureaucrats and femocrats. While women lawyers have exhibited these qualities throughout their 110-year history, key moments, including the demand for 'professionally trained' women during both world wars, the increased financial and civic autonomy produced by the sexual revolution, and the organisational arrangements of the Australian women's movement during the first wave as well as even more notably in the 1970s, 1980s and 1990s; each spurred on greater access for women lawyers to positions of authority.

Alongside each of these historical moments, networks of support and mentor relationships feature consistently in the emerging story of women lawyers' access to both civic authority and official positions of authority. Intergenerational 'baton passing', for example, between senior and junior legal academics, judges and their associates and the transfer of women-run firms and businesses provide an exciting viewpoint for understanding, in part, what has worked for leading women lawyers. However, in any treatment of women lawyers and leadership it must be accepted that key strategies, such as mentoring, and indeed much of what we might term leadership, import their own controversies into the lives of women lawyers. In addition to the history of struggle and success, these ongoing controversies remain part of the picture of women and leadership throughout the 20th century.

Archival Resources

National Library of Australia Manuscript Collection

  • Records of the Women's Constitutional Convention, 1997 - 1998, MS 9230; National Library of Australia Manuscript Collection. Details

National Library of Australia Oral History Collection

  • Eve Mahlab interviewed by Kim Rubenstein in the Trailblazing women and the law pilot oral history project, 30 August 2010 - 31 August 2010, ORAL TRC 6230/2; National Library of Australia Oral History Collection. Details
  • Interview with Gae Margaret Pincus, lawyer [sound recording] / interviewer, Sara Dowse, 11 May 2002 - 12 May 2002, ORAL TRC 4851; National Library of Australia Oral History Collection. Details
  • Valerie French interviewed by Kim Rubenstein in the Trailblazing women and the law pilot oral history project, 24 May 2010, ORAL TRC 6230/1; National Library of Australia Oral History Collection. Details

Published Resources

Australian Women's Register Entries


  • Burton, Pamela, From Moree to Mabo: The Mary Gaudron Story, University of Western Australia (UWA) Publishing, Perth, Western Australia, 2010. Details
  • Centre for Legal Education (CLE), Australasian Legal Education Yearbook 1998, CLE, Sydney, New South Wales, 1998. Details
  • Cunneen, Chris and Stubbs, Julie, Gender, race and international relations : violence against Filipino women in Australia, Institute of Criminology Monograph Series, The University of Sydney: Faculty of Law: The Institute of Criminology, Sydney, New South Wales, 1997. Details
  • Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development, Harvard University Press, Boston, United State of America, 1982. Details
  • Graycar, Regina and Morgan, Jenny, The Hidden Gender of Law, 2nd edn, Federation Press, Sydney, New South Wales, 2002. Details
  • Harrington, Mona, Women Lawyers: Rewriting the Rules, 1st edn, ed. Knopf, Alfred A., 1994. Details
  • Hope, Judith Richards, Pinstripes & Pearls: The Women of the Harvard Law School Class of '64 Who Forged a Old-girl Network and Paved the Way for Future Generations, Scribner, New York, United States of America, 2003. Details
  • Hunter, R and McElview, H., Equality of Opportunity for Women at the Victorian Bar, Victorian Bar Council, Melbourne, Victoria, 1998. Details
  • Kent, Jacqueline, The Making of Julia Gillard, Penguin Books, Melbourne, Victoria, 2010. Details
  • Keys Young Consultants, Research on gender bias and women working in the legal system, Egger, Sandra J; Wallace, Alison; Schwartzkoff, John; and New South Wales. Ministry for the Status and Advancement of Women, Keys Young, Milsons Point, New South Wales, 1995. Details
  • Magarey, Susan and Round, Kerrie, Roma the First: A Biography of Dame Roma Mitchell, Wakefield Press, Adelaide, South Australia, 2007. Details
  • Norris, Ada, Champions of the Impossible: A History of the National Council of Women of Victoria 1902-1977, Hawthorn Press, Melbourne, Victoria, 1978. Details
  • Patterson, A., Bendable or Expendable: Practices and Attitudes towards Work Flexibility in Victoria's Biggest Legal Employers, Law Institute of Victoria, Melbourne, Victoria, 2006. Details
  • Swain, Shurlee, Born in hope : the early years of the Family Court of Australia, University of New South Wales (UNSW) Press, Sydney, New South Wales, 2012. Details
  • Thornton, M., Dissonance and Distrust: Women in the legal profession, Oxford University Press, Melbourne, Victoria, 1996. Details

Book Sections

  • Hatfield, J. and Radtke, H.L, 'Women and Leadership in the Legal Profession', in N. Stephenson, H.L. Radtke, R,J, Jorna and H.J. Stam (eds), Theoretical Psychology: Critical Contributions, Captus Press, Concord, Ontario, Canada, 2003, pp. 318 - 327. Details
  • Hunter, R, 'Women Barristers and Gender Difference', in U. Schultz and G. Shaw (eds), Women in the World’s Legal Profession, Hart Publishing, Oxford, England, 2003, p. Chapter 7. Details
  • Hunter, R, 'Women in the Legal Profession: The Australian Profile', in U. Schultz and G. Shaw (eds), Women in the World’s Legal Profession, Hart Publishing, Oxford, England, 2003, p. Chapter 5. Details
  • Kerwin, Hollie and Rubenstein, Kim, 'Reading the Life Narrative of Valerie French, the First Woman to Sign the Western Australian Bar Roll', in Davis, Fiona, Musgrove, Nell and Smart, Judith (eds), Founders, Firsts and Feminists: Women Leaders in Twentieth-Century Australia, The University of Melbourne: eScholarship Research Centre, Melbourne, Victoria, 2011, pp. 172-187. Details
  • Latreille, Anne, 'Solicitors with a Feminist Aim', in Kon, helen (ed.), 21 Years of Accent: The Changing Role of Women, The Age, Melbourne, Victoria, 1987, pp. 28 - 29. Details
  • Rolands, Chris, 'Opening Address III', in Thornton, M. (ed.), Sex Discrimination in Uncertain Times, Australian National University (ANU) E Press, Canberra, Australian Capital Territory, 2010. Details

Conference Papers

  • Thornton, Margaret, 'Gender, Legality and Authority', in Australian Lawyers and Social Change Conference, Australian National University (ANU): Faculty of Law, Canberra, Australian Capital Territory, 22 - 24 September 2004. Details

Edited Books

  • Hunter, R; McGlynn, C.; and Rackley (eds), Feminist Judgments: From Theory to Practice, Hart Publishing, Oxford, England, 2010. Details
  • Kon, Helen (Comp.) (ed.), 21 Years of Accent: The Changing Role of Women, The Age, Melbourne, Victoria, 1987. Details
  • Thornton, M. (ed.), Sex Discrimination in Uncertain Times, Australian National University (ANU) E Press, Canberra, Australian Capital Territory, 2010. Details
  • U. Schultz and G. Shaw (eds), Women in the World's Legal Profession, Hart Publishing, Oxford, England, 2003. Details

Journal Articles

  • Greig, Flos, 'The Law as a Profession for Women', Commonwealth Law Review, vol. 6, 1909, pp. 145 - 154. Details
  • Hunter, R, 'Talking Up Equality: Women Barristers and the Denial of Discrimination', Feminist Legal Studies, vol. 10, 2002, pp. 113 - 130. Details
  • Hutchinson, Terry, 'Seeking Yoda: Mentoring Women Legal Academics', QUT Law and Justice Journal, vol. 2, no. 2, 2002, pp. 175 - 197. Details
  • Kirby, Mitchell, 'Women in the Law - What next?', Australian Feminist Law Journal, vol. 16, 2002, pp. 148 - 156. Details
  • Mathews, Jane H., 'The Changing Profile of Women in the Law', The Australian Law Journal, vol. 56, December, 1982, pp. 634-642. Details
  • Shaw, Jan, 'Papering the Cracks with Discourse: The Narrative Identity of the Authentic Leader', Leadership, vol. 6, no. 1, 2010, pp. 89 - 108. Details
  • Thornton, M., 'Otherness on the Bench: How Merit is Gendered', The Sydney Law Review, vol. 29, 2007, pp. 391 - 413. Details
  • Thornton, M., 'The Gender Trap: Flexible Work in Corporate Legal Practice', Osgoode Hall Law Journal, vol. 45, no. 4, 2007, pp. 774 - 811. Details
  • West, R., 'Jurisprudence and Gender', The University of Chicago Law Review, vol. 55, no. 1, 1988, pp. 1 - 72. Details
  • Wilkinson, J. and Blackmore, J, 'Re-presenting Women and Leadership: A Methodological Journey', International Journal of Qualitative Studies in Education, vol. 21, no. 2, 2008, pp. 123 - 136. Details


Newsletter Articles

  • Mahlab, Eve, 'Report on the Family Law Bill', Women’s Electoral Lobby (WEL) News, vol. 15, April 1974. Details
  • Ross, Kim, 'FLAG', Legal Service Bulletin, vol. 4, no. 3, 1979. Details

Newspaper Articles

  • 'Council of Women: Third Annual Conference', The Argus, 26 October 1905, p. 6. Details
  • 'WEL backs change in Family Law Bill', The Australian, 15 August 1974, p. 3. Details
  • Marles, Richard, 'Why I'm Voting For Julia Gillard', Herald Sun, 27 February 2012. Details
  • Naidoo, Manika, 'Stopping the legal drop out: Lawyers Demand work changes', The Age, 30 August 1996. Details
  • Porter, Liz, 'All rise for Marilyn Warren', The Age, 4 September 2004. Details


  • Lilburn, Sandra, Representations of Feminism in the Australian Print Media: The Case of Pat O'Shane, Demetrius: The Institutional Repository of the ANU, 2004. Details
  • Malcom, David K The Hon Chief Justice, Centenary of Re Edith Haynes, (1904) 6 WAR 209, Presented at the Centenary of Re Edith Haynes Convention, 9 August 2004, Supreme Court of Western Australia, Supreme Court of Western Australia, Western Australia, Monday 9 August 2004. Details

Press Releases



  • Eve Mahlab, The Woman in Question, Television Series, Australian Broadcasting Corporation (ABC), 1985. Details

Resource Sections

  • Re Edith Haynes, 6 WAR 209, Legal Judgement, 1904. Details
  • Hickie v Hunt and Hunt, EOC 92-910, HREOCA 8, Legal Judgement, 1998. Details
  • Eatock v Bolt, 197 FLR 261, FCA 1103, Legal Judgement, 2011. Details



  • Hatfield, Jennifer, 'Women and Leadership in the Profession of Law: A Discursive Approach', PhD thesis, University of Calgary, 2000. Details

Online Resources

Digital Resources

Valerie French interviewed by Kim Rubenstein in the Trailblazing women and the law pilot oral history project
24 May 2010
National Library of Australia
National Library of Australia Oral History Collection


Eve Mahlab interviewed by Kim Rubenstein in the Trailblazing women and the law pilot oral history project
30 August 2010 - 31 August 2010
National Library of Australia
National Library of Australia Oral History Collection


The Racial Discrimination Act: Eatock v Bolt
4 October 2011
Australian Broadcasting Corporation (ABC)