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Article Excerpt
[This article considers a recent regulatory approach to addressing disadvantage experienced by women at the Australian Bar. The Model Equal Opportunity Briefing Policy for Female Barristers and Advocates ('MBP') developed by the Law Council of Australia in 2004 was a popular initiative which received widespread support. This article examines the origins and assumptions underpinning the policy. B is contended that while the policy is a genuine attempt to ameliorate the dismal plight of women at the Bar, it is narrow in application and effect. B is argued that this policy is a product of the prevalent Australian approach to policymaking which avoids any mention of 'affirmative action '. The article traces how this aversion is justified less by principle than rhetorical use of the idea of merit. Finally, it is contended that when we consider the case of briefing practices in Australia, merit is a contestable concept which does not provide a sufficient reason to reject out of hand other policy approaches'.]
CONTENTS I Introduction II Describing Disadvantage through Briefing Practices III The Law Council of Australia's Model Equal Opportunity Briefing Policy IV Defining the MBP--Constructions of Merit and Affirmative Action V What Is Meant by Selection on 'Merit'? VI Defining Affirmative Action VII Some Arguments for and against Affirmative Action VIII Conclusion
I INTRODUCTION
In most Western countries today, women graduate from law school in roughly the same proportion as men. (1) However, there remains a large disparity between men and women in the rates of retention and seniority within most legal professions. For instance, a report by the Victorian Women Lawyers in 1999 noted that there is a much higher rate of women than men not going on to practise law or leaving legal practice within the first few years. (2) In the United States, Canada, England and Wales, the trend is the same. (3) This disparity between 'success' achieved by men and women in Australian legal practice has been noted by law societies, Bar associations and law reform committees across the country for some time. (4) While it is conceded that success is necessarily a subjective and relative concept, this article proceeds on the basis that women's position in the legal profession and experience in their working lives cannot be solely attributed to a free 'choice'. (5)
This article considers an initiative to address women's disadvantage in one branch (6) of legal practice in Australia--the Bar. Like their solicitor counterparts, numerous studies in Australia and overseas have reported that women barristers face persistent disadvantage. (7) Gender inequalities have been documented in statistical terms (such as lower representation in higher ranks, lower earnings and fewer appearances in superior courts) and in qualitative analyses (such as perceptions about a lack of 'commitment' inherent in women's potential to have children, gendered assumptions about aptitudes to perform the advocacy role and homosocial behaviour at the Bar). The next Part of the article discusses in detail the findings of two empirical studies undertaken in relation to women's experiences of working at the Bar. These studies are significant not only for providing evidence of disadvantage experienced by women at the Bar, but also because they formed the basis for a regulatory response considered by this article.
This response was the Model Equal Opportunity Briefing Policy for Female Barristers and Advocates ('MBP') developed by the Law Council of Australia in 2004. (8) It is contended that while this initiative has the potential to institute change leading to real advances for women at the Bar, it has been detached from the genesis of the policy and its specific objectives. To a large extent this is a result of compromises that are inevitable in the process of developing a national policy. However, it is argued that it can also be attributed to a strong antipathy to developing any regulatory initiative (law or policy) which could be described as a form of affirmative action. (9)
'Affirmative action' has been a dirty phrase in the Australian political-legal context for at least the last 10 years. The chief criticism of such policies is that it is incompatible with merit-based selection and promotion. This concern is particularly pronounced in the legal profession, which retains a strong liberal ideology, valuing rationality and supposedly neutral and objective judgements of merit. (10) This article examines the basis for this rejection of affirmative action policies. It considers how the two concepts of merit and affirmative action have been constructed in the context of the development of the MBP so as to allow for a limited set of policy options.
Yet, it is contended that the MBP in its current form can be understood as a form of affirmative action, albeit a weak form. This article is concerned with renaming the policy and goes on to examine the formulation of the MBP as a policy-based on the assumption of an oppositional relationship between merit and affirmative action. It is submitted that this dichotomy in principle is not as firm as has been suggested, particularly in the case of awarding briefs to counsel. Rather, it functions as a discursive sleight of hand not based in firm argument as to competing principles or rationales.
On the basis of this argument, this article ultimately calls for two outcomes: first, the MBP should be amended to include more targeted objectives to be achieved by 'harder' measures; secondly, a range of measures should be considered in formulating any regulatory response to disadvantaged groups.
II DESCRIBING DISADVANTAGE THROUGH BRIEFING PRACTICES
Over the last 15 years, there has been a large amount of academic attention directed towards addressing the continuing gender imbalance in the legal profession in Australia and throughout the Western world. (11) Although many causes have been identified, there is no consensus as to a single area of concern or any one solution. (12) While women have historically been excluded from the profession, there are now few formal barriers to their entry and success within the profession. (13) For this reason, there are some within the profession who have argued that it is simply a matter of time before the problem will resolve itself, or that a time lag exists as a result of the historical predominance of men in the legal profession. However, as Justice Mary Gaudron has observed: '[t]he trouble with women of my generation is that we thought if we knocked the doors down, success would be inevitable'. (14) A decade later this has not occurred. Not surprisingly, as the Chief Justice of the Victorian Supreme Court, Marilyn Warren, has commented, 'there is impatience that change is not occurring more rapidly' and '[t]here is irritation at ongoing discrimination against women.' (15)
In Australia, two large empirical studies of the Australian Bar have been undertaken to test long held anecdotal wisdom that gender plays a significant role in the Bar's culture and practices. The first study, commissioned by the Victorian Bar Council and undertaken by Rosemary Hunter and Helen McKelvie in 1997-98, was a wide-ranging review of the culture of the Victorian Bar as recorded by court appearances and interviews with barristers, judges, clerks and briefing solicitors. (16) This study produced reliable empirical data that documented significantly lower levels of seniority, rates of advancement and court appearances for female as opposed to male barristers. (17) It also provided a detailed qualitative analysis of the data gathered and recommendations for change within the profession. Hunter, writing in 2003, concluded that the study appeared to show that the 'greatest barrier to change is the culture of the Bar itself'. (18) Hunter and McKelvie reported that there were a number of aspects of the 'hegemonic masculinity' (19) of Bar culture which impacted directly on female barristers. (20) These included an image of the model barrister as working long hours and showing complete commitment (21) to the profession which many women could not or were presumed not to demonstrate; a prevailing belief that women were unsuitable or lacking aptitude for many core practices of an advocate which were predefined as requiring masculine qualities; and the much celebrated collegiality or 'fraternity' of the Bar which, far from supporting women, often formed internal barriers excluding women. (22)
The Hunter and McKelvie report, therefore, provided strong evidence that female barristers at all levels of seniority experienced disadvantage and often direct discrimination, contesting the notion that inequality of opportunities at the Bar would be wholly remedied by a 'natural increase' in numbers over time. (23) Their report concluded that the dreary statistics are influenced by what Cynthia Fuchs Epstein describes as 'gendered constraints'--that career choices are imposed on women rather than chosen by them. (24) This may be in the form of direct discrimination, (25) or subtle forms of indirect discrimination such as the imposition of ostensibly neutral environments that favour men. In particular, their report pointed to inequitable briefing practices as discriminating against female barristers both directly and indirectly. The MBP, which this article discusses, is a response to the findings of the Hunter and McKelvie report.
Nearly 10 years later, the Australian Women Lawyers' Gender Appearance Survey Information: August 2006 ('Gender Appearance Survey') indicates that there continues to be a vast disparity in the gender balance of senior barristers in Australia. (26) There are far fewer female than male senior counsel in each jurisdiction. (27) In addition, women on average receive fewer complex, important or long running briefs than men, and are paid proportionally less. (28) These figures bear out Justice Michael Kirby's lament that, during his more than 10 years on the High Court of Australia, he has observed 'few female advocates with "speaking parts".' (29) While these empirical results were not accompanied by the detailed analyses of the Hunter and McKelvie report, (30) this data indicates that similar factors relating to gender disadvantage continue to prevail. As Hunter found, while court appearances were a function of seniority at the Bar, particularly in superior courts, (31) 'sex emerged as the only significant factor' when their results were adjusted to take account of lower rates of senior women. (32) In other words, even proportionally, senior women receive fewer briefs to appear in superior courts than their male counterparts.
In addition, the Gender Appearance Survey also reported that no female junior counsel to senior counsel appeared during the survey periods (33) in any civil matter in the Northern Territory (34) and only one appeared in Queensland, (35) while the highest appearance rate, in the Federal Court of Australia, was of just 18.8 per cent of civil matters. (36) Therefore, not only do women appear to be hitting glass ceilings, but they also appear to be less likely to receive opportunities at a junior level at the Bar. This affects women's promotion prospects as well as their enjoyment in their career at its early stages. (37)
The Gender Appearance Survey also significantly documented a nationwide trend of women being briefed in certain areas of law, or, viewed another way, not being briefed in certain areas of law. (38) In most states, women received far fewer (or no) briefs for civil matters at any level of seniority. (39) There was also a much lower reported rate of senior female counsel appearing in criminal matters in superior courts. (40) While the survey does not provide detailed data as to specific areas of law or the nature of briefs received by those appearing in court, it indicates that women barristers are receiving fewer briefs in civil or commercial areas or, where they receive briefs in these areas, the briefs are of a minor nature or in a lower court. In this sense, the Gender Appearance Survey replicates longstanding empirical and qualitative findings in Australia and internationally. For instance, Margaret Thornton's important commentary on the Australian legal profession in Dissonance and Distrust documented the enduring stereotypes as to the archetypal advocate and the resulting relegation of women into 'feminine' areas of law. She states that women 'are significantly overrepresented in the least prestigious and least remunerative areas of practice and significantly underrepresented among the most elite positions', (41) which is also argued by Deborah Rhode with respect to the US profession. (42) Hunter and McKelvie's report also found that women barristers were 'significantly over-represented in family law, and significantly under-represented in commercial law, common law and personal injuries'. (43) Many of their interviewees indicated that this was largely due to the 'push' factor, where clerks steered junior female barristers into 'feminine' areas due to stereotypical assumptions about women's abilities and interests. (44) Solicitors were also reported to adopt similar reasoning when appointing counsel, often referring to client preference or strategy in Family Court matters. (45) While due regard to the individual concerns of a client or finding a barrister best suited to the case are beyond reproach, this does not explain the empirical research outlined above which indicates that women are being briefed in these areas (although often in the lower courts) (46) at the expense of receiving briefs in other areas.
In all states in Australia, barristers practise as sole practitioners. They are therefore vulnerable to the same financial imperatives as any small business person. In particular, they are reliant on receiving briefs which sustain their practice, and developing a reputation which ensures repeat business and a progression in the level of work offered. This not only requires their clerk (47) or solicitors to provide them with regular briefs but also requires the establishment of a profile by accessing more senior barristers and attracting more 'prestigious briefs'. (48) This is an important practical reality for all barristers, particularly those beginning their careers. Hunter and McKelvie's report noted that it was often more difficult for female barristers to establish themselves because many senior male barristers in Victoria were inclined to recommend a junior from the 'boys club'. (49) In addition, they found that in some cases when junior women received briefs to work with senior counsel they were 'faced with denigrating comments from their male colleagues about how they managed to secure the brief--with the implication or direct assertion that it was on the basis of their looks, or in return for sexual favours, rather than on merit'. (50) Such incidents, Hunter maintains, 'undermine women's professional legitimacy and "chill" the climate of junior work for women'. (51)
Hunter and McKelvie's study also consisted of interviews with solicitors about their briefing practices, which revealed similar inclinations to brief both senior and junior counsel according to established networks. They found that the overwhelming factor influencing briefing was 'personal rapport between solicitors and barristers'. (52) Word of mouth also played a significant role. (53) While these informal factors appear to be gender-neutral, women are less likely to benefit from such collegiality in a predominantly male workforce. It has long been argued that there is a level of 'homosociality' prevailing at the Bar, which ensures that gendered characteristics of the workplace are perpetuated. (54) The 'workplace culture' affecting women at the Bar is exerted by the broader profession (solicitors' branch). A plethora of literature concerning gender and the broader legal profession has noted similar cultures of exclusion through informal processes. For instance, Paula Patton described discrimination against women in US law firms as not only a result of applying: negative stereotypes, but of favouring various attributes that are classically associated with or only achievable by men. She noted that 'legal careers ... [are] shaped by and for the man with a family who is "family free"', (55) while the classical attribute of law as adversarial is male. (56) The matrix of socially enforced responsibility, differing life experience and perceptions about women's attributes and abilities often mean that women are not or cannot be considered the 'best candidate' for the job. It is not surprising then that there is a significant interconnection between sex discrimination across the two branches of the legal profession. (57)
Rosabeth Kanter observed that there is a 'visibility bias' operating in many workplaces where minorities 'get attention' by virtue of being different. (58) In the context of the Bar, a visibility bias operates so that where there is one female senior counsel out of 10 on a list of candidates for a brief, this represents a sufficient amount to claim that there is no discrimination in briefing practices. Sharon Bolton and Daniel Muzio comment that such perceptions arise when there are well publicised successes. (59) However, academics and legal professionals have described women's experience in the practice of law as often marked by a 'double bind' required by a culture of conformity: female lawyers are either understood as 'token successes' or 'honorary men', or they are derided for being unfeminine in adopting 'masculine' characteristics of ambition and aggression. (60) The 'othering' of women is achieved by distancing them from the supposedly neutral attributes of an ideal advocate. As Thornton claims, '[o]therness has been effectively constructed as though it were a personal peccadillo that compromises the claimed universality and neutrality of the public sphere'. (61) In other words, the 'cultural capital' (62) in the legal profession is male.
Finally, Hunter and McKelvie's report noted that client preference played a part in briefing practices. They contended that, in most cases, the will of the client was observed by the solicitor even when this amounted to sheer prejudice on the basis of gender. (63) In the UK, Lesley Holland and Lynne Spencer note a similar influence in unequal briefing practices and point out that, while the most blatant instances would be unlawful, they are seldom challenged. (64)
Hunter and McKelvie's report, therefore, identified...
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