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Renewed calls for gender equality in law amid uneven High Court representation

April 30, 2019
Flo Mitchell

Top legal bodies in Australia have renewed calls for greater gender equality and inclusion in the law as a new study shows a marked disparity in representation between men and women barristers before the High Court.

George Williams AO, UNSW’s dean of law, recently wrote in The Sydney Morning Herald that not much has changed since Australia’s first female High Court justice, Mary Gaudron, highlighted in 1997 the dismal state of gender equality at the bar.

An analysis by Williams and Daniel Reynolds found that based on data on all cases heard by the High Court in 2015-2016, only 22% of barristers who appeared before the court were women. Furthermore, male barristers spoke before the court on 438 occasions, while female barristers did so on only 42 occasions.

Men who appeared before the High Court had a 63% chance of being given a speaking role, while women had just 25%. Women barristers were also picked less as lead counsel, with men appearing in the lead role on 58% of appearances versus just 25% for women. The difference is also seen among junior counsels, where men were given 70 chances to speak while women junior counsels were only given five opportunities.

The data comes despite women entrants to the profession now outnumbering men, with 60% of law graduates and 63% of newly admitted lawyers being women.

Unsurprising findings

The results of the study do not appear to be all that surprising to legal bodies. Fiona McLeod SC, Law Council of Australia president, said that numerous studies conducted by the organisation reflect the results of the High Court analysis, despite also finding that in the last three decades, half to sometimes as high as two thirds of law graduates are women.

Will Alstergren QC, Australian Bar Association president, also said that the findings “reflect the ABA’s own research and anecdotal evidence from members about where, when and how frequently women barristers appear in court, who is briefing women, and the areas of practice.”

Ann-Maree David, Australian Women Lawyers president, said that while the research findings are confined to appearances before the High Court, “they are sadly reflective of the state of play more generally for women barristers working in all Australian jurisdictions.”

“This research also speaks to the complex issues of bias and discrimination experienced by women lawyers as highlighted by the Law Council of Australia in its National Attrition and Retention Study,” she said.

McLeod said that there are “myriad reasons” why this trend is still seen.

“One is traditional briefing practices, which tend to be lopsided even from the early days. Another is that it is difficult for women to take a break and come back to the bar,” she said.

She added that the legal field is also traditionally not seen as a profession that supports flexible and part-time work.

Continuous effort

Australia’s legal bodies, however, have ongoing programs aimed exactly at pursuing gender equality and increasing inclusion in the law.

McLeod, Alstergren, and David point to the Law Council’s equitable briefing policy as a major equality initiative, setting a nationwide target of having women barristers briefed in at least 30% of all matters and be paid 30% of all fees by 2020.

McLeod said that the policy’s goals are not mandatory for organisations which agree to promote the program. The policy is more aimed at maximising choices for people in charge of briefing, who are encouraged to be more inclusive and make full use of the bar and opportunities.

“The intention is to maximise the choices available for clients and at the same time improve retention of women in the bar,” McLeod said.

Launched last year, the program is now supported by law firms including Allens, Ashurst, Baker McKenzie, Clayton Utz, Corrs Chambers Westgarth, DLA Piper, Gilbert + Tobin, Henry Davis York, Herbert Smith Freehills, King & Wood Mallesons,  Maddocks, McCullough Robertson, MinterEllison, TressCox, and Norton Rose Fulbright. Major corporates including KPMG, Telstra, VMWare, Westpac, and Woolworths also support the program.

The Law Council is also continually refining a national guideline tackling harassment and bullying, developing online tools that enable and promote flexible working arrangements among both employees and employers, and conducting online and face-to-face training and development for those in the profession. The Law Council just this month rolled out a national campaign to counter unconscious bias, conducting workshops and online courses to help lawyers better identify their own biases, which may include gender bias.

McLeod said, however, that the situation “may take a little while to change.” This sentiment is echoed by David, who noted structural changes will be needed to better promote equality.

“These initiatives go some way to addressing systemic and ongoing bias in the profession but structural changes are also necessary to effect the cultural shift needed to allow women lawyers to achieve their full potential,” she said.

Alstergren is positive that all of the effort being poured into the issue is producing results. He said that many women at the bar are brilliant and equality is inevitable.

“In some areas of the law and in certain sectors, we’re witnessing excellent progress. It appears that the common theme amongst those implementing equitable briefing policies successfully, is a genuine commitment to cultural change, to the policy and to its objectives starting from the top of an organisation,” he said.

“There are extremely talented women at the bar, and the figures clearly show large numbers of female law graduates coming up through the ranks. While cultural change may be gradual, it is inevitable, and policies that help us identify and overcome the barriers to equitable briefing are to the benefit of the profession and society as a whole.”

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