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A view from a Bar: Why the gender disparity still exists By Ian Robertson SC
A view from a Bar: Why the gender disparity still exists
IAN ROBERTSON SC
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“I do not think, sir, you have any right to command me, merely because you are older than I, or because you have seen more of the world than I have; your claim to superiority depends on the use you have made of your time and experience.” - Jane Eyre, Charlotte Bronte
And I would add to that, “and the opportunity given to you to make that use”. That, I think, is the heart of the equality gap at the Bar and the core reason for the gap’s existence.
For at least three decades, female graduates have out-numbered male graduates from Australian Law Schools. Yet, 30 years on, the female partners of national and international law firms and women at the Bar in Australia are called upon to celebrate when their respective numbers reach 30%.
At the top of the Bar tree, as of December 2020 there are 10 female Silks, of a total of 45 practising Silks, in this State (about 22%, up from about 19% before the latest appointments). Those numbers are unsurprising to lawyers, but may come as a surprise to many in the community at large.
But it is not the numbers, or the percentages they imply, that are the reason for the problem. The reason is, I believe, access.
I have for nearly 20 years (approximately the time the Bar Readers’ Course has been available in this State) been closely involved with young lawyers coming to the Bar. In gender terms, their numbers have varied, although in the last five years they have approached an equal number. Of them, approximately 60% continue to practice at the Bar having completed the Course. More men than women return to the amalgam or leave practice altogether. From these ranks, there have been two female Silks and nine male Silks appointed. A consistent ratio, then.
What happens then to the women who come to the Bar?
We have all heard the view expressed that women leave the Bar to have children, never to return. If that was ever true, it is not anymore. Many women come to the Bar, have children, take leave (for six to 12 months) and then return. I can think of 10 very able young women that I have seen follow that career path. All of them are very good advocates. All of them are, it appears to me, dedicated parents. All of them are not Silk and many of them will wait much longer to take Silk. That longer time is not correlative to the six to 12 months that might be attributed to their time away, not even the two years one might allow for them to regain their momentum. The truth is that most of these young women keep working from home, without going to Court, in their time away and lose little or no momentum.
So, if not the old chestnut of motherhood, what explains the lag?
One explanation might be the type of brief that is offered to women at the Bar. The government agencies (AGS, CSO) and regulatory authorities (ASIC, ACCC, APRA, FairWork) all adhere to a strict equitable briefing policy. Many of the junior briefs are made to women. Those briefs are a fantastic opportunity to do interesting, high-end work, but they traditionally pay about half the market rate. That might help in part to explain the value of brief by gender differential that presently exists. The briefs stop when one’s tolerance for working for half pay wanes. The result is that many senior juniors begin to move away from government briefs as they approach Silk. That, in turn, leads to a reduction in Court time and the associated exposure that is necessary to have a decent chance of selection for Silk.
That rationalisation does not apply to all criminal barristers. Those from the ODPP who come to the Bar as Silk apart, the transition within the Bar as a female junior is dependent on one of two circumstances; first, a benefactor or second, a commitment to prosecution work. As to the former, benefactors at the Bar are a rare commodity. They are not benefactors of the type that exist in philanthropic societies. They are senior barristers (Silks, senior juniors) and partners of key criminal law firms who like the junior’s work and continue to recommend them to the client. Great if you have one or more, but completely normal if you do not. As to the latter, many former members of the ODPP come to the Bar. Many are women. Mostly they are highly competent but destined to be locked into the right-hand side of the Bar table and then suffer (in terms of briefs offered and rates paid) when they seek to branch out.
Another problem is mentoring. There are plenty of good senior members of the Bar that mentor junior members of the Bar. Rightly or wrongly, most Silks have the juniors they prefer to work with. If you are not one of them, then it is harder to get a junior brief, which means that it is harder to get a Full Court or Court of Appeal brief, and so it is harder to be noticed. The more unnoticed a barrister is, the harder it is to progress to the bigger briefs in more serious cases.
Some means to combat these problems have been developed in the last 10 years.
At the Bar, the first innovation (if you can call it that) was the Silks’ Commitment. I paraphrase, but in substance it provides
that a Silk, when recommending junior counsel, will consider a female barrister and seek to provide non-court work to a female barrister once a year. In my opinion, it is a matter of some concern that not all Silks have subscribed to the Commitment. The usual reason given for this is that the Silk does that (and more) in any event, so why should they sign the Commitment? I would have thought the question should more properly be asked, why should they not sign the Commitment. I think it surprising that not all Silks have given the Commitment and not all female Silks have given the Commitment.
More recently, during Fiona McLeod’s term as President of the Law Council of Australia (LCA), she proposed, and secured, the commitment of a number of the national firms and other briefing parties to the Equity Briefing Policy. I am not aware of the reporting that has been made under the terms of the Policy except in its first year, when the rate of reporting was disappointing. It has not proven to be the impetus for briefing that I suspect the LCA envisioned.
So, what does this suggest?
To me, my experience (albeit as a man at the Bar) is this: • junior women are well supported both
in terms of briefs and the value of the briefs. Many young male barristers would like the same support. • as barristers become more experienced, they are less interested to take the briefs that are at lower rates.
That is the same for male and female barristers. • female barristers remain attached to the less well rewarded brief for longer than male barristers. • there is a finite number of mentors and benefactors when at the Bar.
Fewer of them prefer female junior counsel. This is evidenced by the number of female juniors in the Full
Court and especially by the number of those women who had no speaking part in the appeal. • the Bar is notoriously independent.
That independence sometimes stands in the way of obvious reform. • barristers need to be given the opportunity to demonstrate their skills.
The demonstration is made to other lawyers, clients and the Court. The less opportunity one is given, the less opportunity there is for promotion through the Bar. The fact that a few remarkable women have “made it” without assistance is not a vindication of the process; it is an indictment upon it.
I expect that I am among a growing number of male barristers who take the view expressed in this article. However, we are plainly a minority. I expect I will be told this as a consequence of writing this article. C’est la vie!
For what it is worth, my philosophy when recommending briefs is that I: • insist on a junior and, except in unusual cases, a junior from the Bar. • where possible, recommend a female junior. There is no area of practice where there is not a competent female junior. • accept that there may be a more experienced male junior, but feel vindicated because the future of the
Bar is in promoting diversity, and that includes women in senior positions at the Bar.
At the time I write this, the Silk selection process in 2020 has just concluded. My hopes that we may have as many as four female Silks was not fully realised, but it went close. That is a good sign, but it could be better. We are on the right road and, as always, speed matters; the difference this time is that it is a sign of growth and not a danger to others. B
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