In Conversation with Lizzie O’Shea, an Irish-Australian Human Rights Lawyer

By Shauna Stanley

This article is the fifth in our series on Irish-Australian lawyers.

Lizzie O’Shea is an Irish-Australian lawyer, writer and activist.

O’Shea has spent years working in public interest litigation, on cases brought on behalf of refugees and activists, among others. Notably, she represented the Fertility Control Clinic in their battle to stop harassment of their staff and patients, as well as the Traditional Aboriginal Owners of Muckaty Station, in their successful attempt to stop a nuclear waste dump being built on their land. She has worked in a multitude of jurisdictions, including a stint in Dublin.

As a writer, O’Shea’s commentary is featured regularly on television programs and radio, usually about law, technology, or human rights, and she is the author of two books – Future Histories (2019, Verso) and Empowering Women (2021, Wilkinson).

Lizzie, you’re a lawyer and writer who is active on a number of social issues –  do you think growing up in an Irish-descended family shaped your views and passion for fighting for change?

Part of my approach to life as an activist has come from my Irish heritage. Growing up, my parents always encouraged me to think about issues from the perspective of the powerless. I think that’s something you’re much more likely to do if you come from a country that’s experienced oppression and injustice. I think people also identify this with those who have Irish heritage. I remember when my mum was campaigning as a local councillor, she had voters who said to her that they’d vote for her just because of her Irish surname – that it makes sense as an Irish person she ought to be advocating for the underdog – and it was a way of holding her to account!

Would you describe yourself as a lawyer activist? The law is in many ways a two way street – a source of disadvantage and state oppression; but also a means for groups to have their rights recognised. How have you navigated this tension through your activism and in your legal practice?

Well, that’s a really good observation. Most of what the law is trying to do is protect the status quo, and various social divisions that give certainty to markets. There’s a saying that property is nine-tenths of the law – and yes, lots of law is orientated towards protecting property. The law should never be considered the end point, because even with the best law, people can still be disadvantaged.  But yes, there are parts of the law where you can push and it can be a spearhead for change in a positive direction. Activism sometimes means getting the law changed, but sometimes it means just getting an already existing law respected and enforced. The kinds of cases and legislative reforms that are successful in securing change are always best when they’re supported and driven by broad-based social movements. I would encourage lawyers who want to do that kind of work to do it in partnership with community and social organisations already working on these issues.

Your first book, Future Histories looks at radical social movements and theorists from history and applies them to debates we have about digital technology today. What role does Tech play in fighting for social change?

Of course, I think tech can open up enormous opportunities. It can allow us to access the canon of human knowledge instantaneously. It allows us to communicate with each other as organisers and collaborate in ways never thought imaginable. We rely on connectivity in order to do things like have a functioning food supply chain all the way to taking mass transit to work. Tech invariably has the potential to ameliorate human suffering and solve problems in new ways that are very exciting, but the problem of course is that the tech we want is not the tech we have, and it’s very disappointing that so much of technology ends up serving the needs of a small group of people making large amounts of money or is used by the government for surveilling people. What I think we ought to be doing, is finding ways to claim a different kind of future by directing the development of technology towards human needs and doing that in a democratic way. So although I think there’s immense potential there, it would be naive not to point out tech’s potential for incredible forms of oppression, something that we have to agitate and organise against. We shouldn’t just view technology as a force of nature that evolves without an agenda. Tech is not just neutral, very much a political field and how it’s evolved and how it developed is determined by social political relations. So we have a chance to change that. But it’s not going to happen unless we organise and agitate for a different future. 

Is there a particular public interest case you’ve worked on that you’re most proud of?

There are a few, but one I’m particularly proud of, and I’m still in touch with those clients, is the Fertility Control Clinic case. We lost the case in a legal sense, and although it closed the door on one kind of legal remedy, it opened up a window to a different way of solving a problem. It provided the Fertility Control Clinic with the opportunity to demonstrate that they had done everything they possibly could to try and solve this problem themselves. This gave the legislature the imprimatur to change the laws to better protect patients and workers. This shows you don’t always have to win a case to have an impact, which is important to remember. And it was such an honour to work for such a wonderful client.

I have co-authored a book about this case with Dr Susie Allanson called Empowering Women. It’s being released this month, and a book borne out of this case, which was part of the campaign to safe access to abortion in Victoria, and ultimately led to a landmark High Court decision in 2019. Dr Allanson is one of the leaders of the campaign, and worked at the Fertility Control Clinic for 26 years. Through her personal narrative in the book, she shares crucial lessons for anyone wanting to change the law or redesign the world for the better.

I can’t wait to read it! Sounds like a fascinating and timely book. Speaking of women’s issues and the law, based on recent events it’s clear the legal profession has a problem with sexual harassment. Do you have any advice for young female lawyers starting out in the profession?

Though women make up the majority of legal profession, they’re not represented in the higher levels of the profession. Finding your nerve in the context of having a lot of powerful men around you can be a challenge, so looking for allies to help you to find the confidence to advocate for your own cause in the workplace is important.

Thinking about the recent report on sexual harassment in the legal profession, I’m very lucky in that I haven’t experienced it. I think everybody knows a woman who has and I think part of the reason why it’s important to push for gender balance in the workplaces, rather than developing a culture of machismo and a hierarchical workplace. Recruiting more women over time makes an enormous difference in dismantling hierarchical workplace cultures. But there are other challenges that lots of female lawyers face, like how to balance a career like that with having children, which I think often falls to women to accommodate.

Ultimately I’m hopeful that those things are changing over the long term – these are problems that we can do something about. We can find friends and colleagues and allies in the workplace to help us – and I’m grateful that I have had an abundance at my disposal – which does help you get where you need to get.

Do you think encouraging more young lawyers to join their unions is a way to combat any challenges they might have in the workplace?  

Absolutely. I think an enormous part of my enjoyment at work today is because I work in a workplace with a union – that means it’s a workplace where we’re allowed to advocate for our rights as employees, we can demarcate what those rights look like, and we have an honest discussion with our employer. We can collectively organise to do that because we have an EBA which frames a lot of the discussion. It just makes such an enormous difference because you know that things aren’t working for you, there’s someone you can talk to about it and there are people who will take action to protect your rights. From what I’ve heard at other law firms, that doesn’t seem to be the case, and look, starting a union at work is quite a logistical challenge. So if there is anyone who is interested in talking about starting a union at work, I’m always open to talking about ways to work together to enhance the union density of our profession so that other lawyers unionise.

Are there any other big social justice issues facing Australia today?

Absolutely – there are lots of problems in Australia that are worthy of our consideration and concern as activists. I think as lawyers in particular, it is critical we show support for the continuing strength of the Bla(c)k Lives Matter movement. This is a field as a lawyer you really have to engage with, because it is so central to the cultural political foundations of this country, a country that has very serious problems with race and justice.

So much has come out of the BLM protests last year, which even during COVID were a well-managed and appropriate exercise of democratic rights. For example, The Closing the Gap programme, which was designed around closing the life expectancy gap between Indigenous and non-Indigenous Australians, now includes a criterion around incarceration, which is almost directly related to those protests. There’s a lot of work we can do around advocating for different ways in which you can measure how Aboriginal people are disadvantaged in our society and the legal aspects that give rise to that. It’s a terrible shame; it’s a blight upon us that 100% of incarcerated children in the Northern Territory are Aboriginal. These are legal problems that we as advocates can work to change. There are also political problems, social and policing problems, but lawyers hold particular weight because people give our profession respect and sometimes that’s deserved, sometimes it isn’t. But I think it’s very important for us to then use that gift to try and advocate for better laws that will better protect the people. So I think we just need to get involved in lots of different solidarity organisations doing that work, and  contribute directly to it by advocating for reforms and advocating directly to government and keeping up the pressure on the government so they feel worried that they won’t be elected if they’re not acting on this issue in a way we’re satisfied with.

I totally agree with that. I feel there’s an onus on anyone with a legal education to utilise that knowledge to actually make positive change.

There are lots of ways you can make change as a lawyer and as an activist – there’s a million different ways to use your skillset to assist a campaign, such as drafting law reform submissions, helping draft campaign material, volunteering legal support during rallies, showing up to a rally – there’s lots of different things you can do with legal education that give you different ways to participate. We need people doing all those things. There’s certainly not an absence of opportunity for contributing as a lawyer to make positive change.

Empowering Women will be available in paperback from 15 July 2021.

Shauna Stanley is an Irish community lawyer practising in Melbourne and a member of the Tinteán editorial collective.