From the Australian – 3rd August 2023

This week The Australian reported on Emma Covacevich, the first female chief executive of national law firm Clayton Utz. Her policy on achieving gender parity is simple: “It’s about more women coming and more men going out.” On the face of it such a tag line is attention grabbing, but is there not a danger of getting what you wish for? What does such a policy say to male senior associates vying for partnership at Clayton Utz? Will they not be tempted to jump ship for more “sunlit uplands”?

However if one follows the modern lunar left’s view of gender, what does this Clayton Utz policy mean by gender? The biological sex one assigned at birth or the social construct of gender? Affirmative action based on gender is widespread within the large law firms and the bar associations across the country. At the NSW Bar and elsewhere this has been labelled the Gender Diversity Briefing program, of which I have been a long-term critic. That policy was introduced after an unscientific earnings survey, as well as counter “unconscious bias” by solicitors briefing male barristers. This program seeks to sign up chambers, law firms, large corporations, government bodies and others to allocate more briefs to female barristers as senior or junior counsel. In my view such a policy discriminates on the basis of sex and is not in the best interest necessarily of the client.

Permit me to offer an example. A male barrister in my chambers successfully won a case. The losing side then appealed. Despite the male barrister’s success, his deep understanding of the matter, both factually and legally, he was not briefed on the appeal. A female barrister, with only a slight connection to the speciality, was briefed by the solicitor, who needed to boost the firm’s KPIs for gender diversity briefing. Such a switch would have added significantly to the costs by getting fresh counsel to grapple with the case and to defend the appeal. Can one ask, rhetorically, was that choice of new counsel based on gender acting in the best interests of the client? Anecdotally, other male barristers have been removed from briefing panels because of their gender. One of the most powerful interest groups at the NSW Bar is the Women Barristers Forum. Its perceived raison d’etre is more work for female barristers. However, many women at the Bar do not need such regulatory, market-distorting assistance provided by the Gender Diversity Briefing and similar affirmative action programs.

Many female barristers went to the best schools, the best universities, both Australian and international; were associates at large law firms or with senior judges. They do not need additional help by such bien pensant programs. For the Women Barristers Forum to suggest it, and for them to take it, amounts to unalloyed rent seeking. Recently, the US Supreme Court overturned affirmative action policies for university admissions based on race. In a case challenging admission policies of Harvard University and the University of North Carolina, Chief Justice John Roberts, writing for the majority, said for too long universities had “concluded, wrongly that a touchstone of an individual’s identity is not challenges bested, skills built or lessons learned but the colour of their skin. Our constitutional history does not tolerate that choice.” If one employs that principle in the legal community based on gender one would ineluctably arrive at the same result. New partners at law firms should be chosen by their “challenges bested, skills built and lessons learned”, not their gender.

The same applies to the Bar. If I were in serious criminal strife I would want Margaret Cunneen SC, or if I were in a defamation trial I would want Sue Chrysanthou SC, to appear for me. Not because they are women but because they are the best at what they do. No doubt at some sumptuous dinner Covacevich will get a legal Logie award for her significant contribution to diversity in the profession.

At the annual Women Barristers Forum cocktail party celebrating new female silks, I will probably get the WBF version of the Ernie Award for this article. It perhaps should be called the Roddy Award, named after Roderick Pitt Meagher, the bane of the feminist cabal, I would be delighted to receive a Roddy.

Jeffrey Phillips, SC

State Chambers