Edith Ann Mary Haynes

Law clerk who fought for the right to practise as a lawyer

1876 – 1963

Edith Haynes is an example of a woman who sought to become a lawyer but failed when a court decided that she was not a ‘person’ for the purpose of admission to legal practice under the relevant legislation. This was despite the fact that all Acts interpretation legislation since Lord Brougham’s Act of 1850 stated that the masculine includes the feminine unless expressly indicated otherwise.

Edith Haynes was articled to her lawyer uncle, Richard Septimus Haynes, in Perth, Western Australia (WA) in 1900. Her articles were approved by the relevant authority, the WA Barristers’ Board. However, when the time came for Edith Haynes to sit her intermediate examination in 1904, she was refused permission. She issued a writ of mandamus directing the Board to show cause why she should not be admitted to the examination.

The Board had in fact advised Edith Haynes in writing at the time of her registration as a student-at-law that there was a risk that the court would not admit her to practice, but it is not known why the Board changed its mind when she was still two or three years away from admission. The Board may have learned of Hall v Incorporated Society of Law-Agents in Scotland (1901) 3F 1059 in which the Scottish Court of Session claimed that the ‘ambiguity’ of the word ‘person’ compelled it to deny the applicant permission to take the preliminary examination because of doubt as to her legal right to be admitted. It may also have been aware of Bertha Cave’s rejection by Gray’s Inn in London following her unsuccessful appeal to the Lord Chancellor in 1903.  

In re Edith Haynes (1904) 6 WAR 204 was a decision of the Full Bench of the Supreme Court of WA. The Court held that as women had no right to be admitted to legal practice, they had no right to be registered as articled clerks under the Legal Practitioners Act 1893 (WA). The three judges argued that construction of the statute required them to go back to the Imperial statute (2 Wm IV, No 1). As this statute made no reference to the admission of women, the Court found that the WA legislation could not have been intended to apply to women. As Burnside J observed, legal practice had been confined to the male sex since ‘time immemorial’. Parker J expressly stated that he was not prepared ‘to create a precedent’ by deciding in favour of the admission of women, just as the Lord Chancellor had said in the case of Bertha Cave.

Hence, ‘inveterate practice’ sufficed to trump any claim that Edith Haynes might have had, an argument that had already been used in Hall’s case and was to be reiterated subsequently, such as by the Court of Chancery in Bebb v Law Society [1914] 1 Ch 286.

In re Haynes signalled the end of Edith Haynes’ aspiration to become a lawyer and, like many of the early would-be women lawyers, knowledge about the remainder of her life is scant. There is no evidence that she sought to be admitted elsewhere, such as in Victoria, where legislation had been enacted in 1903. There is also no evidence that she campaigned to change the law in WA which, instead of being the first Australian State to admit women, became the last (1923). Virtually all that is known of the remainder of Edith Haynes’ life is that she worked in a bank between 1916 and 1931, and then cared for her brother’s children after the death of her sister-in-law.

One of the distinctive features of Edith Haynes’ story, compared with that of her early British counterparts, such as Bertha Cave, is that Australian women had already been enfranchised. In fact, (white) women in WA had been enfranchised at the State level in 1899 and all Australian women (apart from Aboriginal women in WA and Queensland) were enfranchised in 1902. However, the Kantian idea that enfranchisement was the equivalent of active citizenship that should have entitled women to enter the professions and public life was not alluded to by the judges of the Supreme Court of WA. It would appear that they were so anxious to maintain the status quo that they conveniently failed to take judicial notice of this important development. Furthermore, it does not appear that R S Haynes KC, who appeared for his niece, raised the issue either, even though he had been a staunch proponent of the enfranchisement of women as a Member of the WA Parliament.

Professor Emerita Margaret Thornton

ANU College of Law, Australian National University