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According to merit: Why can’t a woman?

Every Issue

Cite as: (2009) 83(03) LIJ, p.83

As the LIV celebrates 150 years of progress, the history of women in the Victorian legal profession is 104 years of endurance.

Women were granted the right to be admitted to the University of Melbourne by the University Act 1881.

It was done in a begrudging rather than a welcoming manner that was the precursor to much of the profession’s treatment of women.

The University’s law school was reluctant to admit women to its faculty and resisted the admission of women until 1897. When women were finally allowed to study law it was amidst concerns that they would subversively use their non-rational, feminine wiles to undermine and defeat their male opponents.1

This picture of women as fragile, emotional, weak and partial, forming the character opposite of the rational, strong and impartial male, is pervasive in western thought.2 It continues to plague women in the legal profession, with, for example, women barristers more readily being briefed for matters perceived to be softer, more emotional and less confrontational, such as family law.

Women no longer have to fight to be admitted to law schools and for about 20 years at least 50 per cent of students enrolling to study law at the University of Melbourne have been women.

However, women continue to be con-fronted with inequality and discrimination in legal practice. In allowing the appeal of Victorian Women Lawyers (VWL) from a decision of the Commissioner for Taxation that VWL was not a charitable organisation, Justice French took judicial notice of “the historical and persistent disadvantage of women in relation to their participation and career advancement within the legal profession”.3

While their ruby lips might not openly be credited with causing trouble, claims abound that women appointed to positions of authority did not achieve appointment on the basis of merit but rather on the basis of their sex.

How “merit” is determined and whether this continues to be the most appropriate term for defining desirable qualities and experience for promotion underlines this column.

The first woman lawyer to complete a law degree at the university was Flos Greig but she could not be admitted to practice until 1905 when the law was changed to remove the restriction of gender by the optimistically named Women’s Disabilities Removal Act 1905 (Vic).

It was another 16 years before the next woman was admitted to practice in Victoria. Joan Rosanove went on to become Victoria’s first woman QC, 40 years after signing the Bar roll.

Of battling against her male detractors she once said: “You must have the stamina of an ox and a hide like a rhinoceros. And when they kick you in the teeth you must look as if you hadn’t noticed”.4

Since then many other women with intelligence, ability and excellent legal skills have become members of Victoria’s legal profession. But women have not risen through the ranks of the legal profession in numbers proportionate to that of men.

This could either be because there are proportionately fewer women of excellence than men of excellence in the legal profession. Or it could be that proportionately fewer women than men are perceived to have the requisite “merit” for advancement. It could also be because a significantly higher proportion of women than men have chosen to leave the profession.

What does seem clear is that while the “disability” of women’s entry to practice was removed in 1905, the disability of the perception that women remain interlopers in the profession was not.

The theme song for the profession could aptly have been Henry Higgins’ anthem in My Fair Lady – “Why can’t a woman be more like a man?”.5

The legal profession, developed to suit the skills and more prominently adversarial nature of men, has not been overwhelmingly accommodating to women. Nor, as High Court Justice Kirby [now retired] eloquently put it, has it been particularly welcoming to any group not male, heterosexual nor linked by generations and the old school tie:

“Any professional group which, for 700 years, has comprised solely men is bound to have inherited attitudes which may sometimes seem unwelcoming to some new entrants. Unwelcoming to people who do not share precisely the same background attitudes and assumptions. Women lawyers. Aboriginal lawyers. Lawyers from non-Anglo Celtic backgrounds. Gay and lesbian lawyers. Lawyers with absolutely no family or other connection with our profession. Just as our country is changing, so too is its legal profession. It is inevitable that the new entrants will alter the ethos and the culture of the legal profession. But it will take time”.6

Given that women were welcomed, albeit reluctantly and only after extensive lobbying and debate, into the profession in 1905, the time lapse is already over 100 years.

The concern remains that these issues may still have currency when we celebrate 150 years of women in the Victorian legal profession in 2055.


LIZ BISHOP is a lecturer in health and human rights, Department of Epidemiology and Preventive Medicine, Monash University. She is about to submit her SJD thesis investigating change in the position of women in the Victorian legal profession between 1996 and 2006.

1. (1892) 2 The Summons 12, as quoted in Margaret Thornton, Dissonance and Distrust: Women in the legal profession, OUP, Melbourne 1996, 45.

2. Susan Sherwin, “Feminist approaches to health care” in R Ashcroft et al, Principles of Health Care Ethics (2nd edn), John Wiley & Sons, 2007, 80.

3. Victorian Women Lawyers Association Inc v Commissioner of Taxation [2008] FCA 983, para 116.

4. Joan Rosanove as quoted in editorial, The Age, 27 November 2003.

5. Alan Jay Lerner, lyrics for My Fair Lady.

6. Justice Michael Kirby, AC CMG, Address to Women Lawyers Association of New South Wales, 18 June 1997, available at AWL website, http://www.womenlawyers.org.au.

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