INTERVIEW: PAT O’SHANE & PATRICIA BOYD

FROM CAIRNS TO THE COURTROOM

PAT O'SHANE was the first Aboriginal person to become a magistrate. PATRICIA BOYD is an Aboriginal solicitor who is working at the Legal Aid Commission of New South Wales. LARISSA BEHRENDT and STEPHEN WALSH spoke to them both about being Aboriginal women working

in the field of law.

What path led you to a career in the law?

Pat O'Shane: I grew up in Queensland, outside of Cairns. I went to school in Cairns. I was a teacher originally and taught at Cairns State High School. I came to Sydney as a mature age person in my 30's and became a law student by accident. I was much more interested in medicine. When I was 21 I witnessed a case against two police officers who had bashed two Aboriginal women, one of who was only 15 at the time. Both of the police officers were convicted and sentenced to imprisonment with hard labour. I remem­ber watching them break-down and eye-dewing when the judge handed down the sentence. What had angered me about the trial was that the two women were treated as though they were the criminals instead of being the victims of the crime. I got pretty angry about that. I had a vague no­tion that I wouldn't mind doing law but I really didn't have much interest in it at all.

When I came to Sydney at the beginning of the 1970's there was a lot of movement going on. I became involved in the Black Military and I went to Canberra for the tent embassy. I talked with a number of people, including friends of mine who were at universities, professors and so on, and one of them suggested to me that instead of doing medicine that I should think about doing law. I had a chat with the found­ing Dean of the UNSW law school and ended up in law. My only knowledge of law was really police. I didn't think of it in terms of controlling our lives or regulating our lives in any other way.

“North Queensland was known as a racist part of this country and to this very minute it continues like that...”

I enrolled in the first graduate course at UNSW. I went as a full-time student while I was trying to bring up a couple

kids. I finished my degree in October 1975 and away I went. I went straight to the bar and jumped in the deep end. It's been a learning process ever since.

I can remember one night watching television and seeing Paul Coe, who was a law student, being paraded on ABC television and I heard him interviewed and I thought to myself, if he's a law student, I can do that. And I did. And I did it in a very short time.

Patricia Boyd: I grew up in Cairns and I went to school at Cairns State High School. I left school at 15 because we didn't have any money, and that was a problem. My sister left school when she was 13 so that she could go and work for the rest of the family.

In 1983 I was working in the counselling section of St. George Tech, and one of the counsellors encouraged me to sit for my HSC. I applied to get into Arts at UNSW and was successful. I didn't have any ideas or long range plans of what I wanted to do. I just wanted to see how I would go doing my HSC.

That's how I got into University. I started studying Arts and then decided to study law after something quite per­sonal happened within my own family at that time. I de­cided that I had an opportunity to do something, so I decided to study law. I applied and was accepted.

What kind of upbringing did you have?

Pat O'Shane: My mother was Aboriginal. My father was non-Aboriginal. We always lived near my mother's family. They came off a mission so there was no way that there was anything like a traditional lifestyle or traditional commu­nity. We were very much subjected to the church; in fact I was always made aware of my Aboriginality. I was taught to have pride in that. I was never in any doubt as to who I am and what my background is. In any event, I lived in a really racist community. North Queensland was known as

Pat O'Shane

a racist part of this country and to this very minute it con­tinues like that. When I was growing up there, there was no question of being accepted in any way. I was called names at school like "black gin', 'boong' and 'nigger'. You name it and I was named it. The community around me didn't leave me any doubts. Adults used to walk past our place and abuse my mother in racist terms. You can't avoid knowing who you are in these circumstances. The whites are very "black and white' up there.

Patricia Boyd: We lived in Cairns. My mother raised the four children alone. Both my parents were Aboriginal. My mother worked and during the school holidays so she would send us to Yarrabah and that was where I had my traditional upbringing. I always identified as being Aborigi­nal. I had no choice, where I went to school, most of the kids were Koories anyway. We were more or less a majority at school. So I've always identified and been identified as an Aboriginal person.

Did you ever feel that you would encounter problems as an Aboriginal person going into a career in the law?

Pat O'Shane: No. Never. I don't see that in any case, what­ever I'm doing. Others have more problems with that than I have. They still do, you might have noticed.

Patricia Boyd: Not really. I think the Legal Aid Commis­sion, where I'm working now, were really keen to have an Aboriginal person working within the Commission because they had never had an Aboriginal solicitor before. There weren't any problems for me in gaining employment. I was happy to work here. I had always hoped to work for people who came from similar backgrounds to my own.

Did you encounter problems as a woman going into a legal career?

Pat O'Shane: I think that as a female, absolutely, yes. I can remember it was very difficult to get briefs because it is such a male dominated profession.

When I graduated I was interested in doing industrial law. I tried to get a job with industrial law firms around this city in the mid 1970's. I was told that the men wouldn't like it. The men have had to wear it since those days but it was pretty difficult to get a job in industrial law and I guess it still is, in any event, but they didn't want to know me at all. Some of the best known industrial law firms in this city didn't want to know of my existence because according to them, the men wouldn't like having a female advocate. That was one problem. When I went to the Bar I was actu­ally told by a fellow barrister that criminal law was not an area for women. From what I've been able to ascertain, women were at least 50% involved in the criminal law just by reason of being victims in the majority of cases and that's still the case. I didn't know that there was anything going on in the criminal law that a woman shouldn't know about. A lot of women are experiencing it literally, first hand, as victims.

“When I went to the Bar I was actually told by a fellow barrister that criminal law was not an area for women...”

I did have the rather curious experience of an instructing solicitor telling me one day when we were at Central Crimi­nal Court, when I was already wigged and gowned ready to go into court, that his view was that a women's place was in the kitchen. I went in and acquitted myself quite well and my client was also acquitted. I asked how his views about a woman's place were going at that stage and suggested that he might consider paying my fee im­mediately.

Patricia Boyd: No, most of the staff here are women, espe­cially in the section where I work, which is family law. I haven't even felt it in court because most of the solicitors in family law are women.

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Patricia Boyd

Being prominent female Aboriginal lawyers, you are often held up as a role models to Aboriginal people. Who were your role models?

Pat O'Shane: My mother died when I was in my early 20's and she didn't have an education. I had the education that she would have liked to have had. She was an intelligent person and it was her one aim in life that her kids should be educated. She didn't get an education because of the racism that exists in this country. Even when I was teaching, my colleagues would tell me that Aborigines were ineducable. It's just mind-boggling to consider a statement like that coming from someone who purports to be an educational­ist. These views were pretty widespread and my mother was a victim of them.

When I was doing my law studies, I had a photograph of Angela Davis, who was a very active black American femi­nist at that time and I had a photo of Ho Chi Min on my wall and I made myself a slogan: 'They did it and so can I'. They weren't role models in so far as I would model myself on what they had done but rather that I admired their com­mitment to the causes which they espoused and pursued. I wanted to have that same sort of commitment to pursue my legal studies.

“Even when I was teaching, my colleagues would tell me that Aborigines were ineducable...”

I've never had a role model in that regard. I think in my day we didn't have role models except when I was going through primary school. I was often the only Aboriginal child in the school. My mother used to tell me stories about people like Paul Robson who were sons of slaves in the United States. There were no Aboriginal role models around. There were people in my own community whom I admired but I could see that they had never had the oppor­tunities to have an education and to really be seen in the Australian community.

I have to say that I'm constantly surprised when people tell me I'm their role model because I'm actually quite lazy. Even last night one of my daughters told me I was a role model and in fact she's just enroled in UNSW to study law.

I always did warn her not to do law but she was always very headstrong.

Patricia Boyd: The women in my family. My mother, my grandmother, my aunts and sister. I never really thought of myself as a role model. If I am, I think that's great. I think that role models are important for people because years ago you would not have seen an Aboriginal person as a solicitor but now, if you see someone who can achieve these things, its good for young kids because they can believe in them­selves that they too can do that. It's terrific.

There is a lot of racism in our legal system. Do you ever see treatment of people in the system that shows that inequity?

Pat O'Shane: Of course, absolutely all the time. In what have now been defined as Aboriginal towns we see Aborig­ines being brought up before the courts for offences that other people might be cautioned for. Aboriginal kids might be charged and kept in custody for days at a time.

In the courts themselves, they are far more likely to receive a fine or imprisonment than a non-Aboriginal person would in the circumstances rather than say the benefits of S.556A of the Crimes Act — what's referred to as a good behaviour bond. They are far less commonly given to Abo­rigines than non-Aborigines and it is still the case that Abo­rigines are imprisoned at rates far in excess of non-Aborigines. What studies have shown ever since the mid-bo's is that the phenomenon alone is directly related to racism. Now I can give you examples of cases which have been heard in the last two years which quite clearly show that Aborigines are subjected to racist attitudes in courts.

There was an Aboriginal man who spat at the manager of a reserve for which he was imprisoned for six months. He ap­pealed that case to the High Court and the High Court made some very caustic criticisms of the magistrate who dealt with that case. Quite clearly, a term of imprisonment for an offence of that nature is a clear expression of the rac­ist attitudes on the part of that particular magistrate on that particular occasion.

One time up in Cairns, a little boy had a new bike which his mother had bought for him and the police picked him up and took him to the station and were suggesting the bike was stolen. They questioned him several times and they had him so frightened that he said he had stolen the bike even though it was his own. I hope to move back to Queensland and practice law there. I want to help my own people.

There was a case in Cairns not so many months ago where the magistrate, although finding that there was room for a doubt on the basis of the prosecution's evidence, neverthe­less, without even hearing any evidence from the defen­dant, convicted the Aboriginal defendant. The Supreme Court of Queensland quashed that conviction on the basis that the fundamental principle which applies in this situa­tion, that the onus rests upon the prosecution to prove be­yond a reasonable doubt, had not been observed. That sort of case reflects very clearly that racism is still endemic in the criminal justice system. These cases are being heard across this country every day and they demonstrate quite clearly that there haven't been terribly many inroads made.

Patricia Boyd: I don't see it in family law. I have a few Koorie clients. You don't find it here as much as in the crim­inal law. I haven't been confronted by racism in this profes­sion since I've been working. But I have had experiences in which members of my family have been harassed bv the police.

AN INVITATION TO JOIN AMNESTY INTERNATIONAL LAWYERS' GROUP

[_J 1 wish to become active in the lawyers’ group and

also join Amnesty International

□ I would like further information

Membership Fees: Single: $30 Double: $40 Concession: $10

Name:

Address:

I enclose a cheque for $___ORPlease debit my Bankcard, #______

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Amnesty International PO Box 1611

Broadway NSW 2007 Ph: (02) 2814188

Pat, as a magistrate do you feel you are able to make a difference to the inherent racism within the criminal justice system?

I would dearly love to think that I am such a person that could change the racism that is manifested by my col­leagues and others throughout the country who are in­volved in the criminal justice system. Unfortunately, I don't have that power. Certainly, I hope by my example, I will start to effect some changes. I have a very strange sense of justice. I am not in any way influenced by a person's racial or ethnic identity. I tend to listen to the evidence and treat the matter on the basis of the evidence I hear and that's it. I don't know that we're entitled to do anything else. How­ever, I'd be flying in the face of reality if I said people in our positions are not influenced by their own backgrounds.

I love my work. I love it for a variety of reasons. I do like working in the law. I do like working on the bench and I hope to stay there until the time I retire. And when I retire, perhaps I'll go back into legal practice.

Patricia, you are the only practicing Aboriginal solicitor in New South Wales. How does that position make you feel?

I hope that will be changing. There are quite a few aborigi­nal law students at UNSW. With support, I hope there will be more Aboriginal lawyers in the system. There are a num­ber of reasons why there aren't many aboriginal solicitors. It's because of the history of Aboriginal people. For in­stance, from my own experience, I never, ever dreamed I would be a solicitor. It just wasn't within your reach. Be­cause Aboriginal people live such a hard life, every day is just one big struggle to find money, food, etc., and the last thing that's on your mind is academic achievement. And of course you don't have the support of your family. Because no one else has gone through and studied you don't have that support at home.

Do you see that there is a place in our legal system for the recognition of customary laws?

Pat O'Shane: I don't think it would be appropriate in a place like Sydney, notwithstanding that Sydney has a large Aboriginal population, simply because people don't live ac­cording to customary law. But there is no doubt that the Australian legal system could accommodate customary

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law. Other derivatives of English common law have accommodated customary law, in countries such as Papua New Guinea and Af­rica. It should not be a problem. The problem is in the minds and hearts of people.

Patricia Boyd: Yes. Perhaps. In Aboriginal communities, customary laws should be recognised. But if your looking at Koories who live in urban areas, well then, maybe not.It depends on what areas you're seeking to implement it in too. From my experience in family law I think that customary law should be taken into account in some situations. For example, recognising Aboriginal marriages as actual marriages and not de facto relation­ships. There have been Law Reform Commis­sion reports on this subject making recommendations but nothing has been im­plemented. It makes you wonder why the hell they did it in the first place, if none of the rec­ommendations have been adopted.

What thoughts have you got about the future for Aboriginal people and culture?

Pat O'Shane: If you had have asked me that question six months ago, I'd have been very optimistic. Today I'm not feeling quite so optimistic. I think since 1988 there has been a much greater acceptance of a celebration of Aboriginal culture, not only by Aborigines but also non-Aboriginal Australian and I just hope that acceptance continues to grow.

Patricia Boyd: I hope it's a positive future for Aboriginal people. I hope things can get better in that we can have more of our kids become better educated than in the past.

In some ways the future is just as negative. It depends on which Aboriginal people you're talking about. If you're talking about Aboriginal people on missions and reserves, their future is not positive because of the conditions they live in. If you're looking at Aboriginal people living in an urban environment then perhaps it may be positive in that they have a chance to be better educated and therefore have more opportunities. ■

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