10 Jul President’s Report – July 2019
The Margaret Nyland Long Lunch is an annual event hosted by the Women Lawyers’ Association of South Australia (WLASA) together with the Law Society of South Australia. The Long Lunch was first held in 2013 to honour the Honourable Margaret Nyland AM, WLASA’s patron, following her retirement from the Bench. The lunch was such a popular event that we have introduced it into our annual calendar and it is a highlight not only to our members but also the wider profession and beyond.
On the eve of the 2019 Long Lunch I sat down with Margaret to reminisce on her career, her marvellous achievements and find out what is keeping her busy after the law.
I hope you enjoy my ‘Few Minutes with Margaret.’
On starting out in the law…..
In my last year at high school I was able to obtain a scholarship to pay for my university fees. Without the scholarship I might not have been able to go to university to study law, although I suspect my parents would have found the money somehow as both were so strongly committed to providing me with the best education possible. This was despite continuing negativity from their contemporaries about the futility of educating a girl. I think my father’s stock response was, “Well, if some bloke ends up marrying a girl who is not completely stupid, then her education is not wasted.”
I think that when I started at the Law School there were no more than about 100 students enrolled in the whole school. Hard to envisage that these days! The academic staff was also modest in size, and many subjects were taught by part-time lecturers who were lawyers in private practice. Although these were part time positions, the standard was high. Many of them went on to become Supreme Court Judges. Knowing them from my university days was a great advantage when I later appeared before them in court as a young lawyer. Two of them in particular had a significant impact on my life – namely Dr John Bray QC, (later Chief Justice Bray) and Dame Roma Mitchell.
Towards the end of my studies I applied to a number of legal firms for a job as an articled clerk which was the practical training component roughly equivalent to the Graduate diploma these days and was an essential prerequisite for admission to the bar. But I was unsuccessful in obtaining a position. I was not even offered an interview. All rejected my application on the sole ground that I was female. There was a generally held view that training women as lawyers was a waste of time and money as they only got married and gave up work to have a family. This undoubtedly was the lowest point in my career as I feared all of my years of study would be wasted as I would never be able to obtain the necessary qualification to become a practising lawyer. However, Dr Bray eventually came to my rescue. He arranged an appointment for me to see his good friend, Pam Cleland, who was a partner with him in the firm of Genders Wilson & Bray. This was a very lucky break for me, as Pam was one of the few women at the time who regularly appeared as a barrister in the criminal courts. Pam took me on and so my legal career got started. Although employed by Pam during my articles, Pam insisted that I clerk for Dr Bray as often as possible. That provided me with the opportunity on a frequent basis to witness first-hand one of the outstanding jurists of our time. Dr Bray subsequently moved my admission to the Bar. I doubt that any law student since has had such prestigious counsel move their admission to practice.
On her time in private practice….
I have to say that I fell on my feet with Pam. She gave me many opportunities to appear in court, even when I was still an articled clerk. When I look back at that time, I sometimes wonder about the fate of some of those unsuspecting clients on whom I practised my incipient legal skills. However, I think it is fair to say they included a great number of old lags charged with relatively petty crimes, who had much more experience with the criminal law than I had at that stage of my life. All of them took great pleasure in teaching a fledgling lawyer the tricks of the trade. I might add that after some time I realised that most, probably all, were quite guilty and expected to be convicted. However, a plea of not guilty necessitated visits to the gaol by a young female lawyer to obtain their instructions and a contested trial meant a trip to court which provided an outing to escape the tedium of life in gaol.
Before I finished my articles, Pam left Genders & Co to establish her own firm at Beaumont. My decision to stay with Pam was wise. She employed me as a solicitor after my admission and in due time she offered me a partnership. We conducted a successful legal practice together for many years Eventually Pam decided she wanted a change of pace and joined the separate bar (the first woman to do that). I then took over the whole business but Pam and I continued a working relationship as I briefed her in many cases.
On the bench………
I enjoyed my time as a practising lawyer, particularly in the later years when I came to specialise in Family Law. I eventually ended up with one of the largest family law practices in the State.
It therefore came as something of a surprise to me when I was offered an appointment as a District Court Judge. I was flattered by the offer but very apprehensive about accepting the position as this would be a complete change of direction for me. So how did I resolve my dilemma? I turned to my mentor Dame Roma for advice. She summarily dismissed my concerns about my ability to do the job and the confidence she expressed in me, not only then but throughout my judicial career, was invaluable and enabled me to cope with the many difficult issues I encountered along the way. So, in 1987 I became the second woman to sit in that Court.
And of course in 1993 I once again turned to her to resolve my next dilemma when I was offered the position in the Supreme Court. This was to me a daunting prospect as it meant that I would be the second woman to be appointed after Dame Roma. Once again my concerns were summarily dismissed and on the day I presented my commission, Dame Roma who was then the Governor of the State accepted the offer of the Chief Justice to sit on the bench with the other judges for the ceremony. I should add that given the earlier concerns about women being able to cope with the tawdry aspects of the criminal law I consider it somewhat ironic that my judicial career subsequently saw me specialise in criminal trials dealing with sex crimes of all types and a great number of gruesome murders.
On her great mentors…….
I feel that I have been very lucky in having a great number of people support me throughout my legal career. I have just told you about Pam Cleland but of course, there was also Dame Roma Mitchell. Her achievements are legendary. The first female QC in Australia, first female Supreme Court Judge, first female Chancellor of a University, first female Governor, and so on. However, when I first met her she was just plain Miss Mitchell and she was my lecturer in Family Law. I am sure that my later decision as a legal practitioner to specialise in Family Law emanated from Dame Roma’s teaching of the subject. Dame Roma was an inspiration and role model, not only for women in the law but for all women who in those days were endeavouring to enter male dominated professions. Not only was she my mentor but she also became my close friend. Over the years we had some interesting experiences on travels together, such as a rafting trip on the Rio Grande in Jamaica.
One of the highlights of my time in the Supreme Court was in 2006 when I was President of the first – and I think to date only – all-female Court of Criminal Appeal in South Australia. Unfortunately, that was something that Dame Roma could never have achieved, given the lack of other female judges during her time on the bench. I regret that she was not alive to witness that historic event.
In my early judicial years, I was also greatly assisted by Don Brebner, who was then the Senior Judge of the District Court. He was a wonderful man and I consider myself very fortunate to have worked with him. He provided me with invaluable support and guidance throughout my time as a judge in the District Court. When I expressed some concern about my ability to cope in the criminal jurisdiction, due to my lack of recent criminal law experience he assured me that my experience would be similar to that of most of my judicial predecessors. This was reassuring as I assumed this meant that I would be agreeably surprised and, despite my concerns, it would all be fairly straightforward and easy. However with a wry smile Don went on to say that it would probably be the worst experience of my whole life.
I might add that prediction nearly came true when in my first jury trial I had a problem with a jury who burst into uncontrollable fits of laughter while the defendant was giving evidence.
On witnessing significant social change……
Despite the difficulties of being a female lawyer in those early years, in retrospect I think I was also lucky to be pursuing my career at a time of great social change, which had a significant impact on the law. And that brings me back to Dame Roma Mitchell . She was the first woman in Australia to be appointed as a judge of the Supreme Court That was in 1965 which, coincidentally, was the year in which I was admitted to practice. At the time, there was a perception that women were not really suited to the practice of criminal law, which was perceived to be rather tawdry. While she was a practising lawyer, Dame Roma never appeared in the criminal court because of a concern she held that her presence might reflect negatively on her client, although she subsequently became an outstanding judge in the criminal jurisdiction. She was also responsible for effecting what I consider to be one of the most significant changes in the criminal justice system – that was, persuading the government to pass legislation to permit women to sit on juries. That legislation was not passed until 1966. Up until then the criminal court was very much a male domain.
Earlier attempts to get women on juries had been unsuccessful as it was considered that a criminal court was no place for decent gentlewomen who would be unable to cope with hearing the gruesome and disgusting evidence that would be presented. And the argument that won the day? Equal pay did not apply, so the government would save a great deal of money, as women jurors would be paid less than men. Appalling to think of that now, but it was the means which achieved a very good end. I might add that the first mixed juries were reported positively in the media, with the comment that together with women on juries came cups of tea for jurors – presumably made by the ladies.
There was also a growing expectation that the criteria for judicial appointments be expanded to more accurately reflect changes in community attitudes. Gender bias was a particularly lively topic. However, notwithstanding the changing times, one of the crosses I had to bear as a result of my judicial appointment was the token female against merit debate but I thought there was not much I could do about that and I just had to do the job as best I could.
Beyond the bench…….
In 2012 I reached the age of mandatory retirement and looked forward to a life of leisure away from the law. But that was not to be. It was fine at first, but I confess that I did start to become a bit bored. So, when I received a phone call from the Attorney-General to conduct the Royal Commission into the Child Protection System, I was happy to accept. I might add that I was also conscious of the fact that Dame Roma would have been very cross with me if I had refused. Such was her influence upon me – which clearly extends beyond the grave.
Child protection is a complex problem and South Australia is not alone in grappling with the many issues that surround the proper care and protection of children. The terms of reference for the Commission required me to conduct an extensive inquiry into the State’s child protection generally. This was a challenging task, but I was assisted by a great legal team, ably led by Emily Telfer SC, who had been my Associate in the Supreme Court many years before. It was an intensive and complex assignment and included hearing evidence from nearly 400 witnesses and the receipt of nearly 400 written submissions. The inquiry was initially supposed to take only one year but ended up taking two years. My report was handed to the Governor in August 2016 and I was once again retired and able to look forward to a life of leisure……but again, that was not to be.
In December 2017 I was asked to take on the position of Chair of the Board of the South Adelaide Football Club. I should explain that I have been a South Adelaide supporter all my life having grown up in the city where the club was originally based I also went to Gilles Street primary school where my childhood football hero Jimmy Deane had been a student.
The offer of this position was significant as in the 140 years history of the South Australian National Football League no woman had ever been appointed to this role. So accept I did. At the risk of being uncharitable to my mentor it was also good to take on something Dame Roma had not done first!
I think it is fair to say that this role has not been without its challenges but undoubtedly the highlight has been the success of our girls team who for the first time last year joined the SANFLW competition. It is impossible to describe the emotion when they went on to win the Grand Final in their first year. And would you believe? They did it again this year. We went back to back as Premiers of the SANFLW competition. They are a great group of young women and I am very proud of them.
But there is more to this task than just football. When I was growing up I felt I was part of a community and that included being involved with the football club. However I fear that in these modern times that sense of community is being lost. That was very evident when I was conducting the Child Protection Systems Royal Commission. These days, the South Adelaide Football Club is situated at Noarlunga and the area surrounding it can be described as a lower socio economic area where there are many single parent and other families struggling to cope with raising their children. The club is working very hard to restore that sense of community and provide support systems for people who need help and hopefully keep some of their children out of the Child Protection system.
Last year one of our programs involved an organisation called ‘Kick Start for Kids.’
We agreed to help them extend their program to Kick Start for Footy to enable disadvantaged children engage in healthy exercise and learn some life skills such as being part of a team and having respect for others. We had several very successful events at the club attended on each occasion by about 40 children, both boys and girls. They come to the club not only to play football but they also participate in a variety of activities. This includes some talks about healthy diet although I think the day usually concludes with a sausage sizzle.