ALSA Women in Law Conference 2012

Speech by Professor Rosalind Croucher^* to the Maurice Blackburn/ALSA Women in Law Breakfast at the Royal Automobile Club of Victoria, Melbourne, 12 July 2012.

Introduction

Thank you, Brooke Dellavedova, for your kind introduction on behalf of Maurice Blackburn Lawyers. It is a real pleasure to be in such a special place, looking over Melbourne towards the hills as the sun rises. With such a panorama of the urban landscape of Melbourne, and coming after NAIDOC week, it is important that, as the head of a government agency, I acknowledge the traditional custodians of this land, the Kulin nation, who must have scanned the horizon over many centuries past. On behalf of the ALRC I do so this morning, and pay my respect to elders past and present.

(I must say that I appreciate the hot breakfast, being a devotee of hot breakfasts, which I have daily. They set you up for the day!)

Julia Swift, of ALSA, asked me to speak about two things: equality for women in the legal profession; and the challenges women face in the workforce due to the ‘still existing glass ceiling’.

Formal ‘equality’, in the sense of being eligible to be admitted to practise, was achieved in the first three decades of the 20th century.

In 1905, Flos Greig was the first woman admitted as a barrister in Victoria. In New South Wales it took longer – until the passage of the Women’s Legal Status Act 1918, to amend the Legal Practitioners Act 1897. Ada Evans had completed her LLB in 1902 (although this was a bit of an accident, as the Dean was away and the Acting Dean allowed her into law school, which evidently caused a bit of a reaction on the Dean’s return).^[1] Ada was admitted in 1921, but by then she decided not to practise, too much time having elapsed in the meantime and other responsibilities having by then intervened. In 1924 Marie Byles was admitted as the first woman solicitor in NSW and she went on to establish a successful, female-focused practice.^[2]

Since these pioneers opened the doors, how far have we come? To discharge my particular brief this morning, I will start with some stats, tell you a little of my own story — and a bit about my mum.

Statistics

These are from New South Wales, but they are indicative, given the size of the legal profession there. The New South Law Society has been particularly good at tracking data about solicitors, especially about women, with an annual survey that started in 1993–1994. In December 2011 the Law Society produced an excellent publication, drawn from this data, Thought Leadership 2011—Advancement of women in the profession, Report and Recommendations. This provides a handy snapshot of that branch of the profession in NSW, both now and historically.

In 2010 women solicitors comprised 45.9% of solicitors in New South Wales, where in 1988 the figure was 20.2%.^[3] So there has been a significant increase, running alongside the increasing numbers of women undertaken legal studies and now comprising over 50% of law graduates. The report identified a ‘marked gender difference’ across the three practice areas considered: namely as between private practice on the one hand, where women comprised 41% of private practitioners; and corporate and government practice on the other, where women comprised 54% and 63% respectively in these practice areas.^[4]

With respect to the senior ranks of private practitioners, women comprised only 23% of principals in law firms with more than 20 partners.^[5]

When it comes to the NSW Bar, my data is a little older, being drawn from the Bar News of 2004, which featured ‘Women at the NSW Bar’.

In 2004, women comprised 14.7% of those holding barristers’ practising certificates and 21% of those completing the Bar practice course. When it comes to the senior ranks, of the 15% of barristers who held silk, only 3% were women. The picture is much more stark than that for solicitors, although there had been an increase of 60.8% of women practising at the Bar in the period 1998–2004.

So, there are some stats, but they are just that – some stats. There is a much more complex picture behind this.

News

Over the weekend there were two articles in particular that caught my eye: the first was by Lenore Taylor, ‘Who framed feminism?’, in the Sydney Morning Herald weekend edition, 7–8 July, in the News Review section (p 15); the second was by Angela Shanahan, ‘Having a full-time family is no barrier to female self-fulfilment’, in the Weekend Australian, Inquirer section (p 18). Both focused on an essay by Anne-Marie Slaughter, a Professor at Princeton University, ‘Why Women Still Can’t Have it All’, in The Atlantic monthly. Professor Slaughter wrote about her decision to leave her position as the first woman director of policy planning for the US State Department to return to academia.

What these articles bring into the spotlight is the tacit theme underlying both the points I was asked to address this morning. Challenges in the workforce; equality for women; to me they beg the question: how is equality possible in view of the challenge that women, as a general fact, take responsibility for caring for children.

So let me re-frame the topic in this way: The bottom line is that someone has to look after the kids. How does this work in legal careers and what role does the responsibility for children play in affecting women’s career advancement?

I can tell you my story and a maybe draw some messages from it – but none to spoil your breakfast. Much of this is not a ‘whinge’ but rather what it has meant for me as a lawyer, and a mother. A warning: there is no magic answer other than to take each day at a time, but with an eye to the longer term.

Professor Slaughter’s message was that women can ‘have it all’, but not all at once.

We may not have choices about whether to do paid work – as dual incomes have become indispensable. But we have choices about the type and tempo of the work we do.

She, like me, was speaking to middle class/professional women. Her message resonated with me and my own experiences. The issue is not so much about a ‘glass ceiling’; it’s not about ‘them’ imposing anything. It’s about kids; and choices. It’s about you. So, let’s look at you.

You

Our audience this morning is mainly ALSA attendees—I’ve been told it’s about 60%—so you young women and men would be all, I would guess, 20-something? Do you plan/expect to have kids? Your average age? Probably around 21. If you fit the profile for the state of Victoria then you will probably be 28.9 years old when you have your first child. Too early? Want to wait a bit? Not planning on getting married or in a serious long-term relationship till you’re 30? Well, then, let’s say you have your first child at 33—give you a bit longer to get settled in your career—and your second at 35. Maybe that’s enough, although a little bit short of the 2 and a bit that is average. A caution here: 25% of Australian women now give birth over the age of 35, but the risks increase significantly; and after 40, only 2/5 of those who want to have a baby will be able to do so. And it is not only an issue of women’s fertility.

By 33 you may have clocked up about 10 years in practice, post-admission. You may be an Associate, Senior Associate, or even partner by then. Things are going well. You have bought a nice home, with a sizeable mortgage and look forward to continuing a nice middle class lifestyle, maybe private school for the kids, and so on.

BUT

Who’s going to look after the kids? (An aside—kids get sick a lot up to the age of five. They need to, to build up their immunities. Even in the early school years this continues, with chicken pox and other easily communicable childhood illnesses. Does this resonate for some of the older cohorts of attendees today?)

Let’s explore some options.

Partner? In an ideal world child rearing would be shared equally, but … your partner may well be on their own way up a career ladder and you may look at/decide upon other options. (After all, there is that big mortgage to pay.)

Time out? A year? Till the kids are at school? If you have your second child at 35 this means you will be 40 when you ‘go back’. No? Can’t do that? You’ll ‘lose touch’? You won’t ‘catch up’? ‘Everyone will be so far ahead of me!’ (This is nonsense of course. You should not think of careers as some kind of train track. There are times to consider just getting off the train and taking time out; there are times to consider even changing trains. The one common feature about driven people is some kind of guilt or panic that, if you stop, get off the train — take time out — you will lose your place in some kind of perpetual queue. It really is nonsense. You can’t do everything you want at once, but think of this in terms of how things might fit within a lifetime.)

Nanny? This sounds very appealing. But, if this means you are still on the private practice track, it will mean effective abdication. Someone else is ‘mum’ and you may be just the biological parent, committed, yes to ‘quality time’, but there is so little time left in your day. And it is very expensive. So you may not want, or really think you can afford this option.

Childcare centre? This was the option that worked for me.

Granny? Oh dear. Let’s explore the ‘granny option’ a bit more.

How old is your mum now? If she was, say, 25, when you were born, she is now 48 or so. If you start your family when you are 33, she’ll be in her late 50s. What’s she been doing in the meantime? Was/is she in the paid workforce? A professional perhaps? Did she take ‘time out’ when you were born? How is she faring now? Has she ‘caught up’?

And how much ‘clear air’ has she had, now, or then? How many of you are still living at home? Show of hands. Oh dear. So many! What freedom has your mum had to pursue her own goals independently of you?

Let’s talk more about your mum. She is part of a generation of women who really had a chance to aim for, or exercise ‘equity’. Effective contraception delivered that, assuming that she wanted/felt she could avail herself of it). The Pill turned 50 last year in Australia—like many of your mums, perhaps.

She may have been a 1970s/1980s feminist, but things were harder for her. Remember that stat I mentioned earlier. For example, in 1988 only 20.2% of the solicitors in NSW were women. Maybe your mum is at last enjoying some freedom now that you’ve left home. She’s going back to study; picking up her career; changing careers.

And you expect her to do what? To start all over again? Oh dear. Give me a break!

In introducing me this morning, Brooke Velladevoda spoke of the need to affirm feminism. I think we should have a new term in defence of the rights of women like your mum: ‘grannyism’. Feminism for grandmas!

Like Anne-Marie Slaughter, your mother and I owe our freedoms to women who broke the ice for us and then, gradually, made it ‘normal’ to expect to be successful professionals and to expect to go as far as we want to in our professional, and personal, lives. Having ‘it’ all, however, is very personal. It’s your story.

So what’s my story?

A little of my story

I began an academic career accidentally. It was not my ‘game plan’ at all. I wanted to be a barrister, like my father—he was later a judge. In my last years at law school I was a paralegal with a middle-sized firm and had started upon the track. Then when I was at the College of Law, doing my Practical Legal Training course (free, then, I should add), I found out that I was pregnant. I was six months pregnant when I was admitted. When my daughter was born in March 1981 I was utterly clueless.

When my daughter was nearly a year old I applied for a position in teaching at Macquarie University. I got it. Curiously, what secured me the teaching position, at the age of 27, was none of the things that a career path would have mapped out. Not a higher degree—I hadn’t even thought about that one yet, the PhD would come later, although I did have an Honours degree in History which evidenced research ability; not publications—I didn’t have any of those—all essential these days even to start in the academic world. But I did have teaching experience—in music. (I had been a professional musician around the edges of my law studies). I had taught a residential summer school in early music, with a group aged from 17 to 70. It was a great background for teaching distance students, who came in for weekends at a time on campus. It was quite an enlightened approach to appointments.

Then the teaching was like a duck to water. I loved it.

I accidentally got on another track and it opened up a whole new career path. 25 years, including the last seven years of it as Dean of Macquarie Law School. I did a circuit of Sydney law schools: two years at Macquarie, seven at UNSW, nine at Sydney and then back to Macquarie for seven. Then to the ALRC five and a half years ago; the last two and a half as President.

About my mother

My mother is 90—almost 91. She was in the paid workforce after she and my father finished MA degrees, supporting him through his LLB and early years of practice.

I was born when she was 33—very late for her cohort. She was told she couldn’t have children; and to have a hysterectomy. She didn’t. And after an emergency appendectomy she had four children. Thank goodness she did not follow that first, appalling, medical advice. She had three more children, the last at 41. We are all girls. They called me Rosalind, from Shakespeare’s As You Like It. Although Portia, from The Merchant of Venice, played a lawyer, Rosalind is his most prominent part for a woman character.

Although not in the ‘paid’ workforce, my mother kept writing. When I was 12 she started a PhD. She was Secretary of the P & C (the kind of volunteer role, as with working in the tuckshop, that has suffered in the wake of women in other, paid, careers). She ran a theatre in our backyard, and then another one when the backyard was too small for the enterprise for Australian playwrights.

She is still writing — on history; on politics; on food; anything that takes her fancy! She is writing plays, novels, musicals and poetry. If she were here and we had paper napkins, not the elegant cloth ones of the RACV, she would have a sonnet written before the end of breakfast. She has so much on the boil now. Her pace has increased, if anything, as she wants to finish everything before she ‘drops off her perch’. She has no time for editors and publishes everything herself.

My father is also still alive. (He completed a PhD after retirement from the bench at 72. He couldn’t be ‘Mr’ with his wife and eldest daughter carrying doctoral titles, so he completed his, age 79 and mum and I were on the dais, robed, to see his degree conferred).

My mother attributes her own continued good health and fitness to: a gluten-free diet; being a ‘fatarian’ (no skimmed milk or low fat for her!); and doing her own housework.

She is an inspiration.

End thoughts

Anne-Marie Slaughter found the academic path suited her best. So did I. It gave us both a control over own schedules that enabled us to manage what we felt were our ‘pulls’ of family. Her partner actually fully supported her government job, and looked after the home front while she was in Washington during the week, but she felt she needed to ‘be there’ during her sons’ increasingly troubled teenage years. For me the academic career path also gave me continuity around the lives of my two children, and I was able to weave in completing a PhD over a ten-year period while teaching.

In the Law Society report that I referred to at the outset, an important conclusion was that, while there are many definitions of ‘success’,^[6] there were a number of things that were singled out as important to the advancement of women in the profession:

• maintain a connection with the profession during an absence, through continuing professional development and networking;
• seek out mentors, sponsors and champions—they don’t necessarily come to you; and
• build your networks;

I will add a few to that list:

• be confident in your ability—women (as a broad generalisation) tend not to ‘blow their own trumpet’, and this sometimes gets reflected in pay differentials (mentioned by Brooke, but also seen for example in the stats);^[7]
• revise and re-evaluate your goals: follow your passion;
• don’t take yourself too seriously;
• laugh a lot;
• don’t blame others for times you think you have ‘failed’—including blaming ‘a glass ceiling’; and
• choose your own path with confidence.

Law Societies and Bars have done much in the last ten years or so to change the ‘culture’ summed up in the idea of the ‘glass ceiling’; and many firms espouse family-friendly policies and are proud when they win EOWA awards as an Employer of Choice for Women. But the bottom line is that ‘equity’ is really about what you do in your own lives — the path that you (and your partner) choose. It is your choice and it may mean that your life takes a different path from the one that you imagine now. Mine did. But the responsibility for each day, and how well you fulfil it, is yours.

Your career and life will have many chapters. You may have seventy years of it (counting from now) — like my mum. Enjoy it! And if you find the passion to sustain that seventy years you will have found true ‘equity’.