Bar ballot reveals women are the victors, not victims

The fundamental duty is to act in the best interest of the client, not to engage in a piece of social engineering.

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The results of the election for the 2022 NSW Bar Council were declared last week. The ballot is conducted by the “first past the post” voting system. That system has the effect that a firmly supported ticket can sweep the pool.

Some interesting results can be gleaned. First, of the 21 places, ­female candidates have been elected in 11 places, male candidates in 10. Second, of the nine senior counsel elected, five are women and four are men. Next, of the top five elected, four are women with one man. And finally, of the three places reserved for practitioners of less than five years seniority, all three elected are women.

Women at the Bar is a tightly organised interest group. It has its own organisation called the Women Barristers’ Forum, with its own section and website linked to NSW Bar Association. Separate functions are arranged by it, including annual drinks to celebrate female silks appointed, a separate photograph for newly ­admitted female barristers, and ­female law student Open Days at universities. There is nothing wrong per se with gathering like-minded individuals together for personal advancement. However, in our modern times to do so on the basis of gender alone does bear some scrutiny.

The Bar Council prides itself, as it should, on supporting the equality and diversity of all barristers from whatever gender, ethnic or cultural background. Policies exist to assist those aims.

However, the most significant concrete action taken has been to support women at the Bar.

In September 2016, the Bar Council adopted as policy the Law Council of Australia’s so-called Equitable Briefing Policy, an ­Orwellian phrase that could be more accurately called the Briefing More Women Policy. The policy stated that by July 2018, senior female barristers were to be briefed in 20 per cent of all legal briefs and/or 20 per cent of the value of all brief fees paid to senior barristers. For junior female barristers, the corresponding percentages were 30 per cent.

The Equitable Briefing Policy is intended to benefit all women at the Bar. In my view, it disproportionably benefits the well-connected.

By 2020, the aim was a common 30 per cent for female barristers in both sectors.

This policy was based inter alia on a small, voluntary survey of members of the Bar that sought data regarding annual fees and days in court. The results revealed a “gender pay gap” said to be related in part to “unconscious bias” in solicitors’ briefing behaviour.

No such survey was conducted of briefing practices by solicitors for barristers from diverse ethnic backgrounds, those who went to public, religious or private schools, those who graduated from Ivy League v red-brick universities, sexual orientation, carer responsibilities, marital status, dependent children, age, or some of the other grounds set out in anti-discrimination legislation.

The Equitable Briefing Policy is intended to benefit all women at the Bar. In my view, it disproportionably benefits the well-connected, those who went to the best schools, those who attended the best universities (both here and overseas), and those who worked at the big law firms.

The affluent and privileged become more so, as opposed to those women and other groups, smart though they are, who come from more disadvantaged backgrounds.

Janet Albrechtsen, writing in The Weekend Australian last Saturday, commented on Lisa Wilkinson’s biography It Wasn’t Meant to Be Like This and her ­reliance on a gender pay gap to leverage a couple of extra hundred thousand dollars a year from Channel 9. This confected rage of the affluent based on self-reported victimhood is the basis for a form of rent seeking. That is, welfare or subsidies for those who don’t need it. Positive discrimination and gaming the system for the wealthy seems obscene. A bit like the large com­panies that flourished during the pandemic claiming JobKeeper payments.

I propose that for the Equitable Briefing Policy truly to live up to its title and high principles, an “opt in and an opt out” policy be introduced. That is, those ­female barristers who by their own ability and connections do not need to rely on receiving briefs in accordance with the policy formally eschew it. And those barristers, of either gender, who come from disadvantaged backgrounds of whatever kind – or who are suffering temporary disadvantages – can apply to be briefed in accordance with a broader and fairer policy.

However, the overriding ethical consideration is for a solicitor to brief the best available barrister irrespective of a policy such as this. The fundamental duty is to act in the best interest of the client, not to engage in a piece of social engineering.

The best barrister should be briefed regardless of gender, religion, ethnicity or social background.

On pure terms of gender, based on the 2022 Bar Council election results, women are no longer the victims but the victors, and good luck to them.

Jeffrey Phillips SC is a Sydney barrister and a member of the 2015 Bar Council who voted against the acceptance of an Equitable Briefing Policy.