Grice, Christine --- "The Trans-Tasman Experience..." [2003] ALRCRefJl 19; (2003) 83 Australian Law Reform Commission Reform Journal 26

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Reform Issue 83 Spring 2003

This article appeared on pages 26 – 30 of the original journal.

The Trans-Tasman Experience...

By Christine Grice*

In New Zealand, women lawyers currently hold the positions of Governor-General, Attorney-General, Chief Justice, and presidents of the New Zealand Law Society and the Otago and Taranaki District Law Societies. New Zealand also has its second consecutive woman Prime Minister (neither lawyers). Is the alignment of these stars evidence that women lawyers in New Zealand have achieved full equality, even dominance? Not really.

The story begins in 1897, when Ethel Benjamin was the first woman admitted to the New Zealand Bar. She had to overcome many obstacles. She caused headaches for the gentlemen lawyers of Dunedin about use of the law library, about court dress and about things as simple as walking in pairs for formal occasions. But the one insurmountable hurdle was cleared from her path when she was in her third year of study for an LLB degree at the University of Otago. The New Zealand Parliament, which three years previously had enacted the Electoral Act 1893 to give women the vote, passed the Female Law Practitioners Act 1896, enabling Ethel Benjamin’s admission.

The situation was rather different in Australia. There, in 1904, Edith Haynes was in every respect—except one, as it turned out—qualified for admission as a legal practitioner in Western Australia. However, the full court of the Supreme Court (WA) declined her application on the ground that women were not eligible, solemnly holding that the word ‘person’ in the Legal Practitioners Act 1893 did not extend to the female of the species. And, in England, the Court of Appeal refused four women graduates permission to register for Law Society examinations.¹ The court relied heavily on a mediaeval treatise which laid down that ‘all who are not prohibited by law may be attorneys but the law will not suffer women to be attorneys nor infants nor serfs’. It was not until passage of the Sex (Disqualification) Removal Act 1919 that the barrier was removed.

Slow progress

The early head start in New Zealand did not, however, mean that droves of women practised law from then on. Women struggled to get a start in the law. It was not until the World War II years that a woman became a partner in a law firm and another woman set up her own firm. But at that stage there were still fewer than 20 women in practice.

Employment after the war was mixed but still favoured men. Society’s slow-growing recognition of the place of women in some professions was not reflected in the attitudes of most men in the law. More generally, female participation in the workforce was not encouraged. The post-war baby boom and a focus on motherhood deflected many women from law.

The great leap forward

The 60s and 70s brought a change in attitude with women being encouraged to return to the workforce and the start of the women’s liberation movement. They brought growth, both in the numbers of women studying law and in the numbers of women lawyers visibly achieving—in private practice, as corporate lawyers, in academic circles, in the judiciary, in politics—a progress which continues.

In 1966, 31 women were in practice. By 1976 the number had risen to 142. From 1967 to 1977 the proportion of women law students nationally increased from six per cent to 30 per cent. Quite suddenly women were entering the profession in reasonably substantial numbers. From 1988 to 1999, women accounted for 51.4 per cent of all new admissions to the bar. In 2002, women accounted for 56.2 per cent of all admissions.

Eight thousand, eight hundred and twenty four lawyers held practising certificates in July 2003 of whom 3,237 (36.7 per cent) were women. Women are most heavily represented in work for professional associations, as employee solicitors and in government employment. They are, however, still significantly under-represented as partners/sole practitioners in firms, and in the ranks of Queen’s Counsel and the judiciary.

Private practice

Until recent years, getting a job in a law firm was much more difficult for a woman. Generally women were not regarded as ‘real lawyers’. Gradually, however, the growing numbers of women in the profession shifted the perception and eased entry. The larger numbers at law school also played a part, with female students often more than matching their male counterparts in achieving the highest grades and thus attracting the attention of the big commercial firms which traditionally recruit top students.

It is still more likely for women to be found in certain areas of practice. They predominate in family law and are fairly equally represented in the resource management, administrative and employment areas of law. Men still outnumber women in the areas of commercial, civil, criminal, property, tax and trusts.

Women make up 30.9 per cent of all barristers sole (lawyers who have chosen to practise at the separate Bar). But few have yet penetrated to the most senior level. Of 82 Queen’s Counsel currently in practice, only eight are women (9.8 per cent).

No discussion of the role of women in private practice would be complete without mention of the many women who, through the years, have worked in the ‘second tier’ of legal work as clerks, secretaries and legal executives. By the mid-60s the New Zealand Law Society (NZLS) had negotiated with technical institutes to establish a course for ‘legal executives’ and a certificate course was launched at the Auckland Technical Institute in 1972. The majority of those who took up this option were women. The course is currently offered nationwide. In 2002, there were 821 students: 92 per cent of them were women. The New Zealand Institute of Legal Executives (an organisation with voluntary membership and an excellent working relationship with the New Zealand Law Society) currently has 670 members, 90 per cent of whom are women.

Practice in government agencies and corporations

Many women lawyers have found it easier to get a start in corporate law, working for the public service, local government, professional associations or major corporations. In past years, government jobs were generally easier to find than work in law firms, and they offered equal pay for men and women. Women who work in the public service comment that it does far better by and for women than the private profession. These days there is a two-way flow between private practice and the corporate sector.

Some women with law degrees have made careers in the public service and corporations, using their qualifications but without practising. One, at age 38, was appointed to head New Zealand’s largest company.

The law societies

The legal profession’s most important institution is the law society. As well as administering and regulating the profession, it has an important role in law reform, policy and consultation on legal and judicial appointments.

Justice Judith Potter led the way as the first woman district law society president in Auckland in 1987 and went on to become, in 1991, the first woman to lead the New Zealand Law Society.

In 1999, the three candidates for the presidency of the New Zealand Law Society were all women, all NZLS vice presidents.

Overall, however, women have been and remain under-represented on both the New Zealand and district law society councils.

Academic circles

The first woman law lecturer was appointed in 1959. She has been followed by many more, at all levels from junior lecturer to dean, including the inaugural Dean of Law at Waikato University and a dean of the largest law school, at Auckland University.

Universities offer some advantages to women in the law, with their transparent appointment processes, equal opportunity policies and more flexible hours, which are more accommodating for women with family responsibilities than private practice. A recent review of the Otago law faculty staff, however, showed that women tended to be appointed lower on the scale than men, resulting in slower promotion. The dean commented that woman appointees tend not to have had significant experience in practice, and to be homegrown, with many leaving later for practice or overseas posts.

The judiciary

New Zealand’s first woman judge was appointed to the District Court bench in 1975. There are now women judges in all the jurisdictions. In 2002, there were 27 female District Court judges on the 120-person bench (22.5 per cent). One of the five Masters of the High Court is a woman. There are five women of the 32 permanent and temporary judges of the High Court (15.6 per cent). Two women sit on the Court of Appeal—one specifically appointed, and the Chief Justice, by virtue of her office.

Politics

Apart from those who have made their mark in the profession, the judiciary and academia, women lawyers have slowly made their way into politics. Ellen Melville, the second New Zealand woman to be admitted, became New Zealand’s first woman city councillor when she was elected to the Auckland City Council in 1913. She was twice passed over for the position of deputy mayor but was the longest-serving member of Auckland City Council when she died in 1946. She also ran for Parliament on seven occasions but, while polling strongly on each occasion, never made it.

It was 1978 before a woman lawyer was elected to Parliament: as at 2003 there have been 10 women lawyer MPs, four reaching ministerial rank. One of those four is Georgina te Heuheu who was, in 1972, the first Maori woman to be admitted as a lawyer.

Remaining barriers

While the number of women entering the profession has increased markedly, the numbers entering legal partnerships, in the senior ranks of the profession and on the bench grow slowly. Most lawyers recognise that it is more difficult for women than men to make progress in the profession. Subtle barriers are more difficult to identify and deal with than the blatant ones of the not-so-distant past. These include lower pay in the middle ranks and allocation of work of a lesser value, both in financial and prestige terms, and dealing with family responsibilities. The issues of broken careers for child-rearing and juggling career and family commitments remain impediments to the careers of women in the profession. These are also becoming issues for more male lawyers who seek better balance in their lives. Failure to redress imbalances has seen more women defect to their own firms and the public service, and may ghettoise women lawyers and their work.

It is sometimes said that aspirations to the Bench and to partnership have been curtailed by women themselves giving up practice. However, comparing admissions over a 20-year period with corresponding years at the bar, there is little difference in the leaving rates between men and women.

Organised initiatives

Regional women lawyers’ groups have sprung up around New Zealand, offering networking opportunities, mutual support and, in some instances, mentoring programmes. The Auckland District Law Society and the Auckland Women Lawyers Association have been very active in promoting equal employment opportunity policies to legal firms. The equal employment opportunities manual entitled Equal in the Eyes of the Law—Implementing EEO in New Zealand Law Firms was launched in Auckland in August 2000.

In 1994, the New Zealand Law Society’s Board established the Women’s Consultative Group (WCG), which focusses on issues for women in the profession. One of the WCG’s main objectives has been a fairer judicial appointment process. A Judicial Appointment Unit has now been established: its guiding procedural principles include clear public processes for selection and appointment, criteria for appointment, opportunities for expressing an interest in appointment and a commitment to promoting diversity.

Supporting each other

Statistics show that, over the past 20 years, more than 50 per cent of admitted women are still in practice. Why, then, does the level of participation at partner level, in the ranks of QCs, and on the Bench not yet reflect the increasing body of qualified experienced women?

Generations of lawyers have been educated to rely on the conventions and decisions of the past rather than to look to the future. This may explain, in part, why men in the law have been slower than men in other professions to accept women as their peers. Women initially make their way in the profession by taking on the ‘shell’ of their male colleagues and trying to emulate them. The title of ‘honorary bloke’ is bestowed, only partly in jest. Dame Silvia Cartwright, the Governor-General, speaks of the need for the older and more established women within the profession to support the less experienced women coming up through the ranks. The support and promotion of women lawyers by influential male colleagues has made the way easier.

The legal profession has been slow to respond to the winds of change. Militant feminists have been an anathema to its conservative members. Young women lawyers in the 1960s and 1970s, by and large, maintained a dignified silence on feminist issues and allowed their intellect and personal qualities to do the talking. Some have since risen to the highest possible positions of standing and authority in the community, the law and commerce. With voices that are now both heard and respected, they promote the interests of women in a measured and positive manner. They do, nonetheless, owe a debt of gratitude to ‘the troublemakers’ who, either deliberately or unwittingly, sacrificed their personal business careers by aggressively promoting the feminist cause, fighting popular opinion and precedent.

* Christine Grice is the outgoing president of the New Zealand Law Society, a position she has held for more than three years.She was convener of the New Zealand Law Society Women’s Consultative Group and former president of the Waikato Bay of Plenty District Law Society.She practises in the area of commercial litigation and dispute resolution and has a large mediation practice.

This article is based on a chapter Christine Grice has contributed to a book due for publication later this year, entitled Law Stories: Essays on the New Zealand Legal Profession 1969–2003.

Endnotes

1. Bebb v Law Society [1914] 1 Ch 286.