NSW Law Society, Nicholas Stewart show equality of outcome is now a law unto itself
Nicholas Stewart, the recipient of this award, is, no doubt, an upstanding member of the legal profession. He sounds genuinely committed to combating discrimination. There are fewer female barristers at the bar. He says he wants the legal profession to reflect the community.
The Law Society boffins who bestow awards clearly regard Stewart’s briefing practice as a fine thing. There is another view. Sounding good is not the same as doing good. Celebrating someone who says he only briefs women barristers is an absurd way to fight discrimination.
One might, by the way, question whether a solicitor who deliberately briefs only women barristers is fulfilling their duty to their client to brief the best person for the client’s case. No doubt a GP who, on principle, only sent their patients to female neurosurgeons would face some tough questions. However, let’s leave that thorny duty-of-care issue for another day.
Concentrating on discrimination, test the logic and fairness of Stewart’s practice this way: if every law firm in the country decided to brief only barristers who are women or, where possible, women of colour, would the result – no men being briefed – be fair? Should that be celebrated as a win for equality?
Only if you are living in some Orwellian society where black means white, equality means inequality and diversity means exclusion. Or, as it turns out living in Australia, in 2023, where discrimination is openly celebrated, and particular forms of diversity are used to exclude less favoured groups of people.
Now we can’t necessarily blame Stewart. He may assume his discrimination against male barristers is balanced by other practitioners engaging in equal and opposite discrimination against female barristers. But, in principle, both forms stink. The difference is that laws allow for “special measures”, legalising discrimination against men in this case.
Prior to 1994, the federal Sex Discrimination Act was premised on equal opportunity; if a person did something that discriminated against a person on the basis of their sex, but it was done to ensure equal opportunity, that would not be unlawful discrimination under the SDA.
When the SDA was changed in 1994, the sentiment in the new section 7D appeared, at first glance, to be noble. Given historical and structural barriers to equality, a lower hurdle was introduced to make positive discrimination easier. Section 7D introduced the idea of “special measures” – a person would not contravene the Act if they were engaged in “special measures”, which, at least partly, sought “substantive equality” between men and women.
However, there is a time limit. Under section 7D(4), special measures are only permitted until “substantive equality” has been achieved. The clincher, and where this has all gone so wrong, is that “substantive equality” has come to mean equality of outcome. That means special measures taken by firms to discriminate in favour of women to achieve substantive equality can be cemented, effectively permanently, until a workplace is split 50-50, or substantially 50-50, between men and women.
What if some jobs don’t appeal to as many women as men? Women’s choices about what sorts of careers and hours of work they prefer became irrelevant when quality of opportunity is jettisoned for equality of outcome.
And the unfairness and inequality for men from the SDA’s sledgehammer measurement of “substantive equality” is obvious. If fewer women may want to enter a certain profession that appeals more to men, the pools of available talent in that profession may be very different for men and women. For quite legitimate reasons of personal choice, the available pool in a particular profession may be, say, 70 per cent male and 30 per cent female. But the law says an employer can ignore that reality and hire on a 50-50 split, thereby giving women preference to women out of proportion to their percentage of the pool of available labour.
In theory the problem also can apply in reverse. Kindergartens could correct the lack of male kindergarten teachers by refusing to hire women in order to achieve substantial equality. I would condemn that as equally daft. Most of us recoil at centrally planned economies where individuals are dragooned into industries chosen by government, and choice and enterprise are frowned on.
Legalising discrimination until equality of outcome is achieved, and ignoring equality of opportunity, is an equally flawed strategy. It’s driven by an equally flawed ideological view of women.
Positive discrimination is an inherently risky business. One person’s affirmative action is another person’s oppression. For example, when law firms positively discriminate in favour of women, that means they will necessarily brief a female barrister who comes from a privileged background and attended a private school over a Sudanese immigrant male barrister who overcame a desperate childhood and poor educational opportunity.
If positive discrimination is ever acceptable, it should be time-limited, carefully scrutinised and reviewed, and judged against metrics specifically designed to achieve those goals founded on reality, not the rigid ideology of equality of outcome.
The two bodies one might expect to be vigilant to ensure special measures do not run riot are, instead, championing flawed ideology. The Human Rights Commission has done nothing to stop “special measures” being used to create effectively permanent discrimination against men.
Quite the opposite. In 2021, the Commission proposed legislative changes, passed last year, that weld more equality of outcome ideology into the SDA. Instead of showing even passing interest in the real-life choices of women, they stuck with their sledgehammer. In fact, the SDA has been beefed up to deal with sex discrimination in the workplace at the same time as encouraging sex discrimination against men.
One might think the Law Society might say enough, pointing out that the SDA allows open slather discrimination against men. Instead, this body chooses to hand out awards to a lawyer who says he only briefs barristers who are women or, where possible, women of colour.
While the Law Society can blame that on the state of the law, it would be grand if it didn’t seem so gleeful about the law’s obvious defects.
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