Victorian Bar members vote down controversial ‘diversity clause’

The Victorian Bar has shot down a proposal to include a ‘diversity clause’ in its constitution, which would’ve made it a core purpose to ‘promote and foster a diverse and inclusive membership’.

Chief Crown Prosecutor Gavin Silbert QC

The Victorian Bar has shot down a proposal to include a “diversity clause” in its constitution, following a staunch campaign from conservative corners of the association to block the controversial amendments passing through.

The amendments would have made it a defined purpose of the Bar to no longer just promote the administration of justice, uphold the rule of law and manage the state’s Bar Roll, but also to “actively promote and foster a diverse and inclusive membership that reflects the society it serves”.

The amendments would have also made it the purpose of the Bar “to promote and support the physical and mental wellbeing of barristers, including by preventing and redressing discrimination on the basis of legally protected attributes and unlawful harassment”.

The Australian understands the results, revealed in an Annual General Meeting of the Bar on Monday night, came in at 217 for, 291 against - a far cry from the 75 per cent needed to change the association’s founding document.

Only about 35 out of the 2200 Victorian Bar members attended the meeting in person.

Multiple group emails were circulated throughout the Bar prior to the meeting, urging members to think carefully before voting in favour of the proposal.

One email, sent by prominent silk Gavin Silbert KC, claimed the amendments could make all Bar members financially liable if a barrister were to sue the association for discrimination.

“A further and related issue is the proposed purpose of the Bar being to provide ‘redress’,” Mr Silbert’s email reads.

“The overwhelming means of redress for unlawful discrimination and sexual harassment claims is financial compensation. Is this what is meant by the proposed clause? It certainly does not rule out financial redress.

“If the Bar’s purpose is to include paying financial compensation to claimants, this will necessarily financially impact all of us. The Bar will need to fund compensation directly or indirectly from members’ funds.”

The issue was also raised directly with Bar councillors by barrister Philip Hayes, who wrote an email to 20 councillors indicating potential dangers of the “vague” amendments.

“My first concern is with the words legally protected attributes and unlawful harassment,” Mr Hayes wrote.

“These words considered separately, and the phrase considered as a whole, are open to a very wide interpretation which could very easily result in litigation.

“But even putting that worrying issue aside for the moment, I am particularly concerned about the following proposed change: to promote and support the physical and mental well-being of barristers, including by preventing and redressing discrimination on the basis of legally protected attributes and unlawful harassment;

“What is meant by the phrase ‘redressing discrimination’? Are you able to please clarify, from the Bar Council’s perspective, what is intended by this phrase. It is a very vague term for use in a constitution.”

Lana Collaris says the proposed amendments would ‘only serve to divide a Bar that is already inclusive’.

Barrister Lana Collaris also sent an email to Bar members, claiming the proposed amendments were “divisive” and would “only serve to divide a Bar that is already inclusive.”

Ms Collaris told The Australian she received more than 50 positive responses to her email.

The Australian has sought comment from vocal supporters of the amendments.

Victorian Bar Council President Sam Hay KC, who voted in favour of the proposed amendments, said they were initially passed through the council before being put to a general vote.

“On May 18 2023, the Victorian Bar Council resolved to support proposed amendments to our Constitution on the recommendation of the Equality and Diversity Committee,” he said.

“After a respectful and considered debate at the Victorian Bar’s Annual General Meeting on Monday, and in line with Bar Council’s resolution, I voted in favour of the proposed amendments.

“Of the 508 member votes cast, 217 (43 per cent) were in favour of the amendments and 291 (57 per cent) were against them. As a result, the special resolution proposing the amendments to the Victorian Bar Constitution did not pass.”

The proposal came weeks after a mock notice was pinned to a lift in Melbourne’s Owen Dixon Chambers advertising the sham “Men in Law Awards” which included categories for “most woke counsel” and “best virtue-signalling counsel”.

At the time, the Women’s Barristers Association panned the notice as an attack on female members, saying “while the Bar has taken great strides towards equality and inclusion, challenges remain”.

In May, the Victorian Bar was divided over whether to support the Indigenous voice to parliament, leading to an all-in vote. Nearly 60 per cent of the barristers agreed to support the voice.