ORAL HISTORIES INTERVIEW
The Honourable Robyn Layton AO QC
This is an interview with the Honourable Robyn Layton AO QC by Lindy McNamara and the date is 8 February 2019. Robyn, can we start with your full name and date of birth please?
Sure. Robyn Ann Layton, 16 August 1945, Adelaide.
And the names of your parents?
My father has got a lot of names. Dick, Alex, Stewart, George, Barney Layton. And my mother was Mary Agnes Layton (nee Halloran).
And what did they do?
My father started off after the war doing social work but then got out of that and eventually became a manager in a big car company, and my mother was a teacher.
So early years growing up?
And education? Primary and secondary?
Well, my mother was a Catholic even though she wasn’t a practising Catholic. She promised the aunt who brought her up, that she would bring her daughter up as a Catholic. So I went to a Dominican convent at Glenelg in primary, and then later the Dominican Cabra College.
Were social justice issues a part of your life growing up? Was your social conscience instilled by your parents?
Not so much from my parents but certainly at school. I have been able to reflect on that in retrospect. Often Catholics are brought up with a social justice conscience. In the school that I went to both at the primary level and secondary, a couple of the teachers who were pivotal in my life had a high level of social conscience. After I left school and went to university, I joined the South Australian Council for Civil Liberties and then things flowed from there.
How did the decision to study law come about?
Sheer accident. I decided I didn’t want to do social work like my father had started to do. I didn’t want to be a teacher like my mother. I went to the Orientation Week still not knowing what I wanted to do although I had thought, until the exam results came out, that I wanted to be a pharmacist. The answer was no, my grades were terrible. I went to the orientation opening and I went around to all the stalls and I ended up at law. A lecturer who was just sitting in the stall talked to me, asked me what subjects were my best and then he suggested I do law. I thought to myself, “Well, that’s not a bad idea. I have done debating, I have done acting and a few other things. I will go and do law.” So very spontaneous.
So off to Adelaide University?
The only one.
Many females in your year level?
No. It was one in 10 so there were about 90 plus in the class and nine of us were women but nine did not finish.
So you graduated in 1966?
It was on the cusp, 1967.
And then admitted to practice, according to our records, in 1968?
Where did you go to work once you were admitted?
Well, I did my articles of clerkship at Thompson Muirhead Ross & McCarthy and then after I was admitted, I started my first year of law there. My mentor and also my principal was James Henry Muirhead,(later Hon J.H Muirhead AC KSt J QC) who was an absolutely amazing man, clever and compassionate. He became a silk while I was there. He later became a Judge in South Australia then moved to the Northern Territory where he was the Chief Justice of the Supreme Court and still later became the Administrator in the Northern Territory. and the Chief Justice. Later still he began the Royal Commission into Aboriginal Deaths in Custody and published an Interim Report. Later Elliott Johnston (Hon Elliott Johnston AO QC) took over and completed the Royal Commission and the Final Report and recommendations. Elliott Johnston also became my mentor and we went into partnership for a number of years. He was my mentor and the principal partner.
And then you went to work with him after that firm?
I should also mention some other people I worked with in Thomson Muirhead Ross and McCarthy who were also my mentors. One of them was John Von Doussa,(Hon John von Doussa AO QC) and another important person was Allan McGregor. I did a lot of work with them as well. And then, after that, I went to Elliott Johnston’s firm. There’s a little story behind that. Elliott was a wonderful mentor to many young people. I had a coffee with him after I saw him at court and very shortly after that, I got a card saying Happy International Women’s Day and I couldn’t work out who it was from. I had never heard of Women’s International Day. I finally worked out who I thought it was from. I rang him up and said, somewhat tentatively, “Thank you very much” as I was not certain it was him. I then said, “By the way, I don’t suppose you are looking for a lawyer.” He said, “No, but I am looking for a partner.” I was stunned. I didn’t start off as a partner, but not long after I eventually became a partner in the firm. It had many names as more people joined as partners. It was at that time Johnston Layton Withers and Co and it is now know as Johnston Withers.
Were you doing legal work at the time?
Absolutely everything, but with a real focus on criminal law, workers’ compensation and industrial law as well.
I believe one of your first Court appearances was a pro bono case?
Yes, I did a lot of pro bono work because it was during the Vietnam War and because I was interested in civil liberties. I used to act on behalf of people who were charged with demonstration offences. There are quite a few stories behind those cases. Also I did pro bono work for Aboriginal people. Before the ALRM (Aboriginal Legal Rights Movement) was set up, there was a group of us that got together and said that said, if any Aboriginal person is arrested, we are prepared to come and act for them. So that’s where my early pro bono work began.
And you started to create a name for yourself within the profession as someone that would look after someone that needed to be heard in the courts, someone disadvantaged perhaps?
Certainly with some people. I mean it was not necessarily regarded as a great thing to do as a lawyer at that point. It was a bit renegade, particularly acting for demonstrators and so forth. But yes, there was a certain milieu of people who knew I did pro bono work.
Can you tell me, just as a sidebar, the experience in 1972 when the Rolling Stones came?
Oh that story. Well, Ted Mulligan (later Hon Edward T. Mullighan AO QC) actually was first asked to act for the Rolling Stones when they came to Adelaide. Joe Cocker had been arrested on drug offences and some of the Rolling Stones group did have a background of drug offences so there was a concern that something might happen. Ted couldn’t do it and suggested me, so I then got the gig of doing it. My gig for four days was to go wherever they went so I went to all of the concerts. I balked at staying in the same hotel but, apart from going to sleep at home, I would come back to the hotel and then go wherever they went including in the armoured van, going to the concerts and being backstage with Paul Dainty, who was the organiser of the Stones.
And any major issues?
You say that reservedly?
Yeah, there could have been but there weren’t.
Were you a Rolling Stones fan?
Yes, I was. I spent quite a bit of time actually with Mick Jagger and Keith Richards. Mick Jagger used to come with a great big tray of audiotapes and we just played tapes and talked in his room. I didn’t go to the parties so much. I did on one night and it was just all the groupies with all of the backstage people. It wasn’t really the Stones at all.
In 1978, you had been in private practice for 10 years at that time?
Yes, I had.
You were appointed as a Judge and Deputy President of the South Australian Industrial Court and Commission?
And then later Deputy President of the Federal Administrative Appeals Tribunal for four years?
Just going back to the first appointment, that was quite a difficult decision. I was the youngest Judge in Australia at that point. I was only 32 and I had spoken to two of my mentors and that was Dame Roma Mitchell and also the Chief Justice Dr John Bray. Essentially both of them said, “What? Going to the Bench at that age? No. Go to the Bar.” I had a young 2 year old child at that point, Dame Roma said, “If you appear before me you can take time out and breastfeed your child and then come back in and continue to cross-examine” And I thought, “I don’t know how that would work.” In the end I decided to take the judicial job.
More for personal reasons?
More for personal reasons because, being at the Bar as a single mother and a two-year-old child really was not going to be a happening thing for me.
What were those years like when you were a Judge?
They were terrific. It was a real learning curve for me but it was a jurisdiction that I knew well before I started off, and the profession I found were very good to me.
So you felt prepared for that role?
I more or less did. It wasn’t like going into the District Court and doing criminal cases and so forth. It was a more relaxed jurisdiction and I knew that jurisdiction fairly well.
So, during that time when you were on the Bench, did it then mean that obviously you weren’t pursuing your interest in human rights?
No, I still did. I continued that because it was Don Dunstan (the Premier) and Jack Wright (the Minister for Labour) who appointed me basically to the Industrial Court. I also was appointed the Chair of the Sex Discrimination Board and I also became Chair of the Classification of Publications Board. This was otherwise called the Porn Board, because it was one that had to classify material as to how it should be treated and the conditions upon which it could be displayed or sold. Both of those appointments were made by Don Dunstan.
So you remained as a Judge and Deputy President for 11 years?
The decision to then go back to work as a barrister?
I then decided to leave the Administrative Appeals Tribunal (AAT) because I was very unsure about the way in which it was now going to be run. When I first started off, Gerry Brennan (later Sir Gerald Brennan the Chief Justice of the High Court) had been the first President of the AAT and later another Federal Court Judge Justice Davies became the next President. They were very democratic so each of the State’s Deputy Presidents could control their own jurisdiction. A new Queensland lawyer came in as the President and he wanted to run everything from Queensland with little discretion given to Deputy Presidents and a number of us left at the same time.
You went to Murray Chambers and set up shop there?
Yes. I did. I went to Torrens Chambers for a little while. They gave me a home before I then went to Murray Chambers.
And the top cases? I know you said before that you probably wouldn’t remember too many of them but were there any outstanding ones that you think back on?
You have really got me here. The one that I did a lot on was the Hindmarsh Island Case which later became a Royal Commission. I did a number of cases in the Federal Court and in the State Supreme Court. I also appeared in the actual Royal Commission itself but a very small role there. The Hindmarsh Island case played itself out over a number of years. I acted for the Aboriginal women whose cultural business it was and I had a lot to do with the so-called “secret envelopes”. So that was a very important time in my life and I hope I made a contribution to some of the law on cultural issues for women.
1992, you were made Queens Counsel?
Yes, that’s right.
How important was that for you at the time?
That was quite important because I had only been back at the Bar for a couple of years. I was very uncertain as to whether or not I might be pushing a barrow to be appointed, but I had some encouragement to apply and I did. The first year that I actually applied I was made a silk. So that was a big step.
And I might add that you were only the third woman in South Australia at the time to take silk.
That is correct.
So your predecessor has been Dame Roma?
That’s right and Frances Nelson.
And have they played a huge part in the development in your career?
Dame Roma certainly did. Frances Nelson and I were more contemporaries. We went way back at university in various ways so she wasn’t a mentor so much as, I suppose I could call her a friend, even though we haven’t kept up, I always knew I could talk to her and she always could talk to me.
How about your relationship with Dame Roma then?
That was a bit mixed. She lived down near where I did so I saw her a lot in her ordinary life. She was an extremely caring person. She knew who my kids were, she would always ask after them. She would see them in the street. I had been to her house and I had been to lunch and dinner with her in a personal capacity. She was always, so far as I was concerned, a person who kept to herself. There was a time when I challenged her. I didn’t think I was challenging her but that’s the way she saw it. Dame Roma had produced an important report on rape and extending the definition of rape in various ways but drew the line at rape in marriage. And I asked her a question at a woman lawyers event to say, “Well, why did you draw the line there?” Well, she was so angry with me. She saw me as publicly challenging her. It was very difficult to retrieve the personal relationship for a while after that. It was a very mixed thing but that passed and she was very, very supportive.
Around that time, you also became involved with the International Labour Organisation Centre for Judicial Education. Is that the correct title?
Well, the way I started that was I was appointed to the Committee of Experts of the ILO, the International Labour Organisation in Geneva. And that was when I was a barrister and somehow or other my name had come up and I received a phone call from Geneva asking me whether or not I would be prepared to sit on Committee. An official came out to Australia and interviewed me and after that I was appointed as a member of the Committee by the Director General of the ILO. The ILO Committee of Experts is a group of 20 judges from around the world, all various countries and regions. Our role was to decide whether or not countries were or were not complying with ILO Conventions. So, I did that for some 20 years and I eventually was elected to be the Chair of that by my peers. I was the first woman and the first Australian to hold that position. It was from there that I then started delivering judicial education programs, which is what you are now referring to. That was the backdrop.
And you obviously enjoyed that work?
I loved that work.
Intellectually challenging for you?
Yes and I travelled all around the world doing that work.
Let’s go onto 2002 and 2003, where you were doing the report for the State government. What I guess now is known as the Layton report relating to child protection. Can you perhaps explain what was involved, because obviously it was an enormous task for you? And how it affected you personally and also some of the findings and perhaps what has happened since and how you see what has happened since?
It’s a big question and I will try to keep a concise answer. I was given one year in which to do a report and I was given a very small staff. I had two people who were writers, although it was one person in particular, and then there was one PA support staff and later a part time editor/ research assistant. There were five of us all together. It was a whole of government framework, so I had to look at child protection issues across all of the departments from education, health, the justice system (courts, police as well as legislation), social welfare and the child protection system. Absolutely everything, across all departments and find out what they were doing in the space.
I did a lot of interviews with each of the departments. The way I did it was to develop a questionnaire and got them to do some of the work and then later I did the interviews with them, because otherwise it would have been impossible to do. I invited submissions and there were hundreds of them. I also set up a lot of meetings with groups and individuals and then I spoke to community groups. I did hundreds of meetings.
How tiring was that for you personally? As in physically?
Well, I was still quite young. So yes, it was. There were long hours and then I had to write it up and then I had to put a framework around it. I mean it was a very complex structure. And the report, I don’t know whether you have seen it but it is about an inch thick and very heavy. So, I made, I think it was, 190 recommendations. And that seems ridiculous in some ways to have so many but I needed to spell out, so far as I could, some of the smaller branches to give some indication of where further work had to be done to have the overall tree framework for child protection. So that’s what I did. So, when talking about the recommendations I made, quite frankly I don’t know where to start. I was very concerned that the child protection group, and it was then within the DHS (Department of Human Services) I think at that point? Anyhow, the Department handling child protection was very under-resourced and they were doing very difficult work and it wasn’t working well at all.
So, I made a number of suggestions as to how it could work, how it could be better supported and I also set up a government structure and framework as to how Departments could all talk to each other because child protection is across the board. It’s interesting that some of the things which were done following the Report, more or less straight away. But some of the big structural recommendations have only happened more recently like the independent Commissioner for Children and an Assistant Commissioner for Children to be an Aboriginal person (if the Commissioner was not
Now, looking back, does it concern you that there are still issues of child protection that could have been prevented that you see in the media?
Well, it’s never ending and there will always be tragic cases. You cannot stop every dreadful example of a child in need of protection. Unfortunately what happens is the media finds out about it, it flares it up and they are usually atrocious examples. The media does not show the good outcomes that come from the interventions that are done by the child protection people. There are a lot of good interventions. So, it’s a pity that it is a very unbalanced story that gets told in the media. Still a lot to be done, still not perfect at all and still more needs to be done with collaboration across the services and particularly for Aboriginal people, because that’s an area that is not still done very well.
So, once you had finished the Child Protection report, in 2005 you were appointed to the Supreme Court?
Only the fourth female Judge on the Supreme Court in South Australia at the time?
Was it a difficult decision to go back to the Bench?
That was a very difficult one. I was struggling with where I thought I might be wanting to go, which was doing more work internationally and so that was a struggle. I was vacillating. I confidentially spoke to a couple of people whom I respected. It is not often that a woman has the opportunity to go to the Supreme Court. In order to make the decision I turned the question around. It was why should I not do it? Not why should I do it? And, as soon as I turned it around, I thought “Well, really this is a wonderful opportunity, there is no good reason not to do it and also it’s important for women.” I sound very Pollyanna-ish about that but that is in fact the reason I took the job on.
Leading on from that, the year later, it was an historic occasion when three women, three female judges, were sitting on the Appeals Court together.
Absolutely, and it is still quite a unique occasion in an international sense too. Because I haven’t gone to see whether Canada has achieved that because they have got quite a few superior court judges in Canada. Other than there, there aren’t, I would think, too many places where a Court of Appeal would consist of three women.
And that was with, I should mention for the record the other two judges were Justice Nyland and Vanstone.
Yes, Justice Nyland and Vanstone, yes.
Was that a proud day for you?
Did the three of you sit there and look at each other and think, “Wow, look at us?”
No, not, “Look at us.” But rather “Isn’t this just amazing that we are able to do this and what a privilege it is.” It should happen more often and it shouldn’t be unique. You know, how many times have three men sat and thought, “Oh, look at us.” It would be ho-hum, this is what happens.
But, for the women in the legal profession in South Australia and there is a lot of them now, that is probably something that for them they could say, “Well, there’s nothing really to stop us now.”
No, but there’s still a lot of things stopping women in the profession still.
How difficult was that transition to being in the Supreme Court? Were you prepared for it?
Well, you never are. In particular I hadn’t done criminal law for a while. Doing the trials and jury trials was more difficult because you had to get back into that framework. And things had gotten far more sophisticated from the time when I had been practising at the criminal bar and doing trial work.
In what way?
Well, all of the rulings, all of the judges’ addresses to the jury and so forth. I think things had got beyond complicated. It is such a convoluted system and I juxtapose that to say what I see happening overseas where they don’t have jury trials and life is a lot simpler and I think a lot better in many ways. I know many people would say, “Oh, we have got to have the jury system.” But in my view it makes it too complicated and also the High Court hasn’t necessarily been very good at understanding the dynamics of what happens when you sit in a trial and also how much the jury can take in after the prosecution and then defence counsel, sometimes multiple of them, address the jury. Then the judge does the summing up and it’s meant to cover it from both prosecution and defence sides. The jury are over it and how much they can take in during that process is quite minimal, but that sometimes seems not to be recognised by the High Court. We don’t have the American system where the judge just sums up on the law and leaves the facts to counsel.
And of course, there is now all the forensic evidence that can be submitted.
Yes, all of that. But, even if we just want to keep the jury but only summarise the law and, if there is a necessity to correct something factual, only then to say something about the facts. That would be an improvement.
Did that lead on also to your interests in making sure there was ongoing education for members of the judiciary?
I had always been interested in judicial education and, in particular, training for judges with regard to child witnesses. That was one of the big things that I wanted to do. I set up, with others but mainly driven at the judicial level by me, a program on child witnesses particularly children as victims in their own case, often sexual assault. I brought judges from interstate to deliver parts of it, brought a psychologist in; I brought other experts who could then talk about how judges could better deal with child witness cases.
Had anything been done prior to that?
Not in South Australia. There had been some work done in Victoria but even then it hadn’t developed to the extent it has now. I don’t know exactly what training is being done now, but I don’t think we do enough training on these issues. When I see what is being done overseas, it’s far more sophisticated than I think things are being done here.
In what ways?
They have got three-day trainings on topics such as gender-based violence and children as witnesses. You are lucky if you get more than two hours on such topics. It is not mandatory as it often is overseas and it is the same judges that turn up who have less of a need for the training and the ones that do need the training never go there because it’s not actually compulsory. The same ones often think they know it all and they think, “Oh, I have got children. I know how children behave.” Or, “I understand domestic violence.” And quite frankly, a lot of males and female judges don’t necessarily understand the dynamics of such offending. It needs training.
So 2010, you resigned as a judge?
What prompted that decision?
Again, I was thinking well, where do I want to go with this? I had already worked as a judge for 16 years by then And I decided that I would stand down before the retirement age because I wanted to still be in a position where I could contribute more. I was still, even when I was a Supreme Court judge, delivering trainings in different countries and in particular in Turin in Italy where the judges come from all different countries to receive the training. I was still chairing the ILO Committee of Experts but I had to take that as my annual leave as I had done for years when I was on the Bench. Although, funnily there was a change on that in the last year I was there, I actually could take two weeks of annual leave in addition to the 3 weeks work overseas. But also at that time the requests for me to do trainings overseas on human rights and labour standards were increasing and I thought, “No, I think that now is the time that I want to go and do more judicial education.”
A sad day when you left the Bench?
Not a sad day. It was a turning point, and in the way turning points are, it gives you a chance to reflect. I wasn’t sad, I knew it was the right thing for me to do. Some people didn’t necessarily think it was the right thing, and thought, “How could you give up this very important job to go and do something else? You should stay there and continue that until you retire.” So, it wasn’t sad. It was a moment of reckoning.
After you finishing on the Supreme Court, you haven’t been sitting idle one would say?
No. People say, “What are you doing now in retirement?” And sometimes I don’t think I can actually answer that question. There are too many things.
And you wouldn’t consider yourself retired?
No. I spend more hours working than I ever did before and I had done a lot before.
Well, we will go through some of those in a minute.
I just want to put on record, 2012 you received an AO?
Tell me about your thoughts at the time? Robyn Layton AO.
Well, it was right beyond my vision. I was absolutely shocked when I had a phone call as I was walking with somebody through the parklands. I was just gobsmacked. I was speechless.
And a great honour, I am gathering?
It was a great honour but I am not unlike many people. You cringe. There is a part of you that cringes because you think, “Oh, I don’t deserve that.”
Well, obviously in recognition of a lot of –
It was a spectrum of work.
But you have helped a lot of other people along the way –
- that may not have otherwise had a voice.
Sure, and I had continued on doing work in the child protection area. I chaired the Advisory Board for the Australian Centre for Child Protection. That’s one of the other things that I have done, apart from many other things which are in my CV.
In 2012, you were South Australian of the Year?
Yes, and that was a shock too.
Recognised by your own State?
That was amazing as well, and totally I would never have thought of it. It was a shock.
What was that in recognition for? Or was it your overall career?
It was overall human rights and I remember the night. I knew I was in the finals, I went along to the event where it was to be announced. Everybody who was in the finals was told to, “Prepare something.” Because I knew the other people that were in the list and I was also running late because I had some urgent work to send off I decided, “I haven’t got time, it’s not going to happen. I will just focus on what I am doing now and just get there.” All of a sudden it was announced and it was me and I thought, “What on earth am I going to say?” And I then had to come out with something on the spot with no notes, no nothing. I think what I said was okay. But it just shows you the level to which I’d thought, “No, it’s not going to be me. There are other people including a wonderful doctor who were doing amazing things?” And yep.
Then also 2013, I think you received an honorary doctorate of the Uni of SA?
And you still involved with the university?
Yes, I am.
And the Law School there. In 2016, the Australian Woman Lawyer of the Year?
Voted by the Australian Women Lawyers Association.
That recognition must have meant something to you.
That really did. It was my peers. I thought, “Well, look, it’s really amazing that people can find that I might inspire them in some way.” I do know that you can inspire people without even realising that you do. I can think of things in my own life where somebody has said something to me and they had no idea of the impact that has had on my own career and life in various ways. So I was aware that an unconscious inspiration can happen for people. I thought, “Well, if I do that for women, that is just fine by me and I am absolutely grateful to receive that award.” And hopefully try and give back.
Of course last year, 2018, the Women Lawyers Association of SA established an award named the Robyn Layton Award?
For outstanding achievement in the profession. So locally there was something there to recognise you in years to come?
Yes it was interesting. When I was spoken to I was reminded about an event I had spoken at which was put on by the Women Lawyers Association. The Association often have these little soirees or the equivalent thereof. They invited me to one and we just sat around the table and I didn’t have any notes or anything like that, and I just spoke to them about the things that were important to me or what I had done or whatever. Probably a bit similar to what we have done now with more anecdotes about my experiences. Apparently many women were struck by that. They talked about it afterwards and I thought that what I had said wasn’t particularly special. I enjoyed the interaction and hearing what they had to say. They were also asking questions. It was very informal and I really liked that so I didn’t feel as though I was pontificating or anything like that. And I thought, “Well, there you go. You never know when you are going to say something that is going to influence the lives of others.”
Just on that, looking at females in the profession, what sort of things were challenges for you as a young female lawyer in the profession? And how has that changed for lawyers today?
I think that some things have changed. At the time I started, just getting Articles was a challenge because I didn’t know anyone in the law. My father had asked around and got some names and he wasn’t a lawyer either obviously. I then went around to these places and I knew nothing about them. I was so lacking in any common sense. One of them was actually the old firm of Don Dunstan, It was Dunstan Lee & Taylor. I was interviewed by a male partner and he said, “No, we don’t take female articled clerks.” That wasn’t the only firm that said that, “No, we don’t have female articled clerks.”
And then I was put onto Thompson Muirhead Ross and McCarthy and I was interviewed by Jim Muirhead. He looked at my CV and I didn’t have an absolutely stunning academic career, it started off all right and it had gone downhill because I did acting, was involved in political issues, student politics etc and I did everything but study. Jim Muirhead later told me that he saw that I had done all of this acting and I had gone in University and Law School Reviews and he thought, “Well, if she has done a bit of that, she must have a bit of spunk in her. Why don’t we take her on?” So he did and so I was very lucky.
Also in those early days there were Magistrates who were appalling to women when they appeared in Court. Another issue was that when I got married it was expected that I change my name to my husband’s name, and my husband was John Bannon. I was also being pressured to change my name on the Register of Lawyers to my married name. The only woman who at that stage had retained her maiden name was a very well known female lawyer Pam Cleland. They said, “Are you trying to be like Pam Cleland?” And I thought, “No that is not the reason.” I was about to file an Affidavit to change my name when luckily John also said, “No, you don’t have to, you shouldn’t change your name if you don’t want to, don’t be taken in by that.” That reinforcement was great. I didn’t change my name but the amount of flak that I got because I retained my maiden name was considerable. Also in those early days then nobody wanted to brief female lawyers. Elliott Johnston was wonderful and I got some fabulous cases as a result of his influence and support. But the other wonderful practitioner who gave me work, as he did others such as Frances Nelson, was Peter Waye, a criminal lawyer. He briefed us on all these crazy cases up to Andamooka and Ceduna doing mining claims and all sorts of things. But he gave us work in the Supreme Court. He was very pivotal as well. So, there were a some lawyers who were prepared to say, “No, women can do everything.” But not an awful lot so it was quite a struggle.
And you mentioned before, when you had your first daughter, Victoria?
You were talking about Dame Roma suggesting you to stay as a barrister rather than go to the bench?
Yeah. I could go and breastfeed and then come back into court and continue my cross examination. Breastfeeding does not work like that.
That must have been a real juggle when you had a young family?
Yes, it was. So, I spent most of my money paying for child care. Then I had my second daughter Anne, with my partner for the last 40 years. He actually looked after our second child so that he took on that child/home role. He used to bring Anne in for breastfeeding when I was sitting in the Industrial Court. I took six weeks off to have Anne and my salary still continued during that time because they had never had an example of how you can stop the pay of a judge sitting on the Court unless it was for disgraceful conduct or the equivalent thereof. So they had no precedent for maternity leave,.. Then I kept on breastfeeding Anne until she was six months and my partner used to bring her in each lunch hour. He was very patient and diligent in being prepared to do this.
And your partner’s name?
Christopher, in for breast feeding so that’s how we got through child minding with the second child.
What about the women today then? What are the challenges facing females in the profession today?
Still a lot of that. Women still find it really hard to juggle the two things and, unless they have got a very, very supportive husband who truly shares the responsibility, most of it still comes down to the women. And even women with supportive husbands, sometimes find that their husbands have been brought up in a background such that they don’t sometimes necessarily get it as to what some of the issues are. Then some of the legal firms are very supportive but still sometimes women lose their place in the pecking order going up to seniority and that is one reason why you have still so few senior lawyers within legal professions. All of the surveys that have been done still by the Women Lawyers Associations and the equivalent thereof, still refer to the discriminatory way women are treated in the Court. Systemic discrimination.
And I remember – this is a very good story of Sashi Maharaj, who was a QC practising here. She is now practising mainly in Victoria. She was a single mum and, if the Court wanted to adjourn something to a certain date and time, she would say, “No, I can’t do that time as I haven’t got the time to drop my child off at school and be in court then. The only time I can do it is this.” She was one of the first women that I ever heard who stood up and said that to the Court. They would juggle it, and is was mainly in the Federal Court and the court would adjust the sitting time to accommodate her parental needs. I think female layers are now taking a stance on those issues and courts are starting to adjust their times more now.
Well, let’s just talk briefly about your involvement with the Law Society because you were a member of the Advocacy Committee, I think 1992 to 1994 and 1998 to 2001?
And also the Human Rights Committee from 1998 to 2005?
Yes and I was on the Law Society Council as well, they others were the sub-committees.
And you were made an Honorary Member in 2011?
And also, Winner of the Society’s Justice Award in 2013?
Can you talk a bit about your involvement and how important that was for you to be involved with the Society and its committees and also the recognition from your profession?
I think the Law Society is a great organisation and I think the sub-committee work and the specialisation is a really good thing. I think that now the expectation by government is that the Law Society will always be a body that should be consulted in regard to legislation and policy which is enormously important. The Law Society Council also includes the Deans of the Law School of the universities which is another good feature, I think the relationship is vital. The specialisation of the sub-committees is an excellent feature and I have read very good submissions in the areas that I have looked at and they have been excellent. So, I am very pleased to see the Law Society and the overall Law Council of Australia doing some fabulous work.
How important was receiving the Justice Award?
Well, I received it in conjunction with Nick Linke. There were two of us so we shared that. I think that’s the only time they’ve shared that award. That was really important for me.
All throughout your career, human rights has been that thread all the way through hasn’t it?
Maybe that can lead onto now the things that you have been doing since you have stood down from the Supreme Court Bench and some of the important things that you have been working on? What would you like to talk about first?
Well, I would talk about some local things first and then I will do the international. So the local things are that I became more involved with the Aboriginal community. In particular I was a co-Chair with Peter Buckskin of Reconciliation SA so this is under the umbrella organisation of Reconciliation Australia. I was on there for five years and, while I did that, I was also directly involved in Reconciliation Australia and advocating all matters related to a change in the Constitution to recognise Aboriginal and Torres Strait Islander people. I went on the road in buses and giving information and talking to people in the community about recognition and so forth and so on. After I stopped being Chair but I still kept up advocacy on the topic.
Back in the early 70s you were one of the prime to get the ALRM up and running?
No, I didn’t do that. I was involved in a peripheral sense.
But you have had that continual connection with the Aboriginal community?
Absolutely. And also I did a report with others, which lead to the setting up of the Central Aboriginal Land Council in the mid 1970s. More recently I sat on the Committee which proposed the wording for the recognition of Aboriginal people in the South Australian Constitution.. I have also done a lot of work on the APY lands in various capacities and written a number of reports as well as working with Aboriginal women in relation to domestic violence. Many different angles all the way to the present time, through from the starting point that you indicated.
Have you also looked at Aboriginal law?
It’s cultural law?
Cultural law. Did you ever get involved in that side of things?
And how it relates to the law of the land as opposed to their cultural law?
Yes, and of course every Aboriginal community is different. I have had quite a lot to do with that and of course Hindmarsh Island, so I am still involved in that.
I interrupted you there. Sorry, off on a tangent.
No, that’s all right. Now to Justice Reinvestments South Australia (JRSA). I continue to Chair JRSA which began in 2012 and at last we are now supporting a trial of Justice Reinvestment in Port Adelaide with the Aboriginal community there. There is a whole history behind that. It is a very important project because an Aboriginal community themselves are developing and implementing actions to strengthen Aboriginal Families in Port Adelaide to reduce offending and stop their youth going into jail. It includes early intervention actions to keep children attending school, youth support including mentoring, men’s groups including fitness programs and parenting programs, family support and improving their access to services. It is a very exciting project to e involved in which at last is receiving some State Government funding for the next 2 years if all goes well. Which I am sure it will. Moving off that, that’s my Aboriginal work.
And migrant and refugee work?
I still am a patron of the Migrant Resource Centre. I also support RASSA the local volunteer refugee support group chaired by Taruna Heuzenroeder.
I mean do you get involved in the issues of Nauru and Manus Island and the refugees there?
No, not personally. I know what’s happening there but not personally.
Anything else locally that we should be covering?
No, I don’t think so.
Because a lot of it has been international?
You can see what I am patron of. That will tell you the story of some local work..
Internationally though you have spent a lot of the last probably eight years working on education for the judiciary. Is it still an important focus for you?
Yes, it is. Not so much now with the ILO. Now I spend most of my energy as a consultant with the Asian Development Bank. Very soon after I left the Bench, I met someone. We spoke in Manila when I was doing other work and I was asked whether or not I would be interested in being a consultant on a particular project with the Asian Development Bank (ADB). I said yes. I put in an application and I was selected to not only be part of a team, but ended up then being the team leader. That was a gender development poverty reduction project in Kazakhstan, Cambodia, and the Philippines, and I did that for a number of years.
What were you trying to achieve?
That was looking at all of the legislation, social policy, and also labour market factors to identify and improve jobs which can be done by women to support women out of poverty in those three countries. I worked with a labour market economist from Canada. She and I were the two international people and then we had teams working in each of the countries and we produced five detailed reports. One of them which I wrote was on good practices on labour market laws internationally. After I had done that, then that led to other ADB projects.
There’s one that I have been doing for the last two years and that involves working in Pakistan and Afghanistan. I am one of a small team to do legal literacy for women in Pakistan and Afghanistan. In particular we work with the judiciary and prosecutors and deliver gender sensitisation training. During this work I set up the first gender-based violence Court (GBV Court) in Pakistan last year. That GBV Court has been successful in delivering changed procedures to sensitively improve the experience for women and children giving evidence in courts about violence and sexual offences. The conviction rate has significantly improved. Now the Chief Justice of Pakistan wishes to extend GBV Courts out to all provinces and Districts In Pakistan. We have started that and I am going back to do some more work this year on that. In total we have trained over 400 judges in Pakistan and more to come. I am therefore repeating history in a different way in a different environment. We are also working in Afghanistan in a similar way, but this work started later.
How upsetting is it for you to see how some women are treated in those countries?
Women are treated badly everywhere. It is not unique to those countries although there are cultural and social practices that are unique in every country and there are some very gross examples GBV in some Muslim countries but there are gross examples of GBV absolutely everywhere, so one needs to have a look at a perspective on this because domestic violence is huge in every country. With all the money that is poured into Australia by the Australian Government and NGOs and everyone trying to work in the space, the statistics and examples are still appalling. There is no magic bullet but there are some fundamental common principles which need to be addressed.
Also what I have found, when I have been working with judges is that, contrary to what most people think, there are quite a large number of female judges coming through the system in Pakistan and Afghanistan. In some ways they have a greater proportion of females now coming onto their Benches than we do in Australia. Not necessarily the superior Courts but they are getting there.
And within the legal profession as well?
Yes. But, to some extent, a little lesser so, as they have still got the same barriers as do female lawyers here. They have targets to try and fulfil in relation to courts and a third is meant to be the minimal and they are getting there. So, I am a bit of a believer in targets and also quotas.
So we could actually learn from them?
I think we can. And it is not that women judges are appointed just because they are women, they are appointed because they are competent to do the job. In order to better reflect society, empower women and and redress past discrimination, if there are men and women who are both competent to do the judicial job and women are under grossly underrepresented on the bench, then a woman is to be appointed as long as she is competent to do the job in order to get to the minimum numbers. I am a great believer in that process because otherwise women will never get there.
Going back for the moment to the gender-based violence work that I have been doing in Afghanistan, contrary to what many people might think, Afghanistan set up about three or four years ago, special courts on Elimination of Violence against Women Courts - what they call EVAW courts. They have them in almost all provinces in Afghanistan. We don’t have quite that same system here in Australia. We have some days or times set aside to in the Magistrates Court to address domestic violence, but in Afghanistan and now in Pakistan they have specialised courts which has the sole jurisdiction to address gender-based violence against women. They have received technical training but they can be better trained to address the cultural and social issues in their work and improve the court sensitivity to the victims so that’s what some of us are doing over there, to give them some different approaches that they can adopt in the courts.
So how much time are you spending in these countries?
In any year, about four months of the year I suppose. But then I am working back here in Australia because you have got to prepare manuals so that they have a narrative and Power Points and materials which we then deliver to them.
Also, as a backdrop to this, we have an anthropologist who is part of the team. I work with four lawyers’ who are all Muslims except me. In addition we have a Muslim anthropologist, who is a documentary maker, she does a lot of work in rural communities in Afghanistan and Pakistan. For example she sets up puppet shows that can be shown in various communities demonstrating what women who have been subjected to GBV can do. She has got truck drivers, and there are a lot of trucks that travel around Pakistan, to paint trucks with messages colourful portraits of man saying, “I make sure my daughter has her inheritance,” or, “I make sure my daughter has education. ”These are all these positive messages. Also painting all along the side of the bridges, it might go for a kilometre, with drawings and scripts. So very creative work that encourages the local community to improve their practices and making sure that young women get a chance. So that’s the ADB work on Legal Literacy for women..
You have never had an issue with your safety?
Yes, it is very difficult in Kabul. It’s very unsafe there but I am as safe as you can be. We are not allowed to go into the provinces but we stay in the green zone in Kabul in accommodation that’s got barbed wire all around it and sentries. We travel within Kabul in armoured cars with a guy in the front with an AK47 and the driver and we always wear hajibs and Islamic clothes.
So a bit different than going to Court in Victorian Square?
Very different so I wear Muslim clothing wherever I go.
What about some of your interests? I notice that you are an avid reader.
Yes, not so much now. I like the idea of reading but I haven’t got the time so sometimes I listen to talking books, only because I am spending so much time on the computer and reading. But the main thing that keeps me sane hopefully is yoga so I have been doing that for about 15 years now. I am a bit of a devotee of that, both for my mind and my body.
How many times a week do you practise yoga?
Well, I go to lessons when I am back in Adelaide probably four or five times a week. But, if I can’t do that, then I will do personal yoga. It is very difficult when I am away, because we work extremely long hours. So, at the end of the day, I haven’t got the energy and at the beginning of the day I am preparing for the work which requires me stand on my feet and deliver training to 30 judges for the day.” So, it’s hard. But otherwise that’s it, apart from family and friends.
So family are two daughters? Adult daughters?
They have both followed you into the law?
They both did law so one is a humanitarian consultant so. She started work in the Red Cross Australia, later the International Federation of the Red Cross and Red Crescent (IFCRC) internationally and now has her own consultancy doing work all over the world.
This is Victoria?
That’s Victoria and then my younger daughter Anne is a barrister here. She started off in various places, as a lawyer at Johnston Withers then more recently a barrister at ALRM. She has only just left there and gone to the independent Bar so she is now in Selby Chambers, just starting this year.
Sounds like she is following in mum’s footsteps a bit?
I guess she wouldn’t see like that and I don’t see it that way either. Luckily, she doesn’t have my surname, neither of them do. Some people do know who their mother is but it is not absolutely overt and they can be their own person.
So, looking back on your career, obviously retirement is a long way off then?
I don’t know. It could be sooner than I expect.
You seem like you are very busy at the moment.
Yes, I am. I should have added that I also have another ADB Consultancy which requires providing a Gender Sensitive Legal Framework to address Climate Change and Disaster Risk Management (CCDRM) in Mongolia, Lao PDR and Fiji. I am working with an international environmental lawyer and CCRRM expert on this project. I am the gender legal specialist. This project will finish next year after some intensive work in those countries.
Is there a legacy that you would like to think that you leave for the legal profession? I mean you have covered a broad spectrum in your career and received a lot of awards along the way but is there one thing that you would hope people might remember you by?
Well, the one thing that I take with me is that law and the practice of the law is a social responsibility. You just don’t practise your own narrow area of law, go to work, sit at a desk, go and run a case, and act for some individual client and that’s it. I think one needs to have a bigger picture about the area of law in which one practices. and to make more of a social contribution in a global sense. I mean outside the individual case, see it in a bigger perspective. Because law and the rule of law, is so important to the rights of people, to the ability of people to have a decent standard of living and not to be down the bottom of the pack and end up in terrible life situations. So, law really needs I think, to be understood as being bigger than being a member of the legal profession but to be responsible to actively use the law to improve the lives of others.
Well, on that note Robyn, thank you so much for sharing your thoughts with us today.