An article I wrote and published in The Australian last Friday regarding the Law Council of Australia’s gender equitable briefing policy instantly provoked a media release from the Australian Bar Association’s president, Will Alstergren QC.

The ABA president, whom I have never met nor spoken to, stated that the views I expressed in the article “do not reflect the view of the Australian Bar Association”. I am glad he cleared that up.

However, I was somewhat perplexed as to why he would bother to issue such a missive. Perhaps I should be flattered. The article does not mention the ABA, nor does it purport to represent or misrepresent the ABA’s view. I have not served on the ABA executive nor on any committee.

The article, however, is critical of affirmative action and quotas for women barristers. I apologise Will for being a mere member in dissent.

The president goes on to state: “There is no evidence that the policy ‘takes work away’ from male barristers. To the contrary, we believe the policy will result in a larger pool of work for barristers, drawing in the expertise, skills and diversity of the Australian Bar.”

Such boosterism might be comforting to support the policy, but surely the briefs available to barristers are finite? More briefs to women barristers above their numerical number at the bar must mean less work for male barristers. Do the maths.

Despite my article sending the feminist legal Twittersphere aflutter , it provoked a number of supportive responses. A barrister sent this to me:

“An additional inequity is the fact that many of the female barristers advocating for and benefiting from these policies are more often than not from very wealthy and privileged backgrounds. Have never faced actual discrimination in their lives.

“I saw first hand a junior male barrister miss out on a brief based on gender. In addition to being the best person for the job, it just so happened he grew up in a singleparent household, his Mum was on welfare and he was the first person in his high school to make law school. The girl who got the brief was the daughter of a judge.”

A number of imperatives have been suggested to support the policy, these include earnings’ inequality between male and female barristers and the lesser number of women at the bar compared to the proportion of law school graduates.

If one accepts these matters as correct, and there certainly is a disparity in numerical strength of female members at the bar compared to those graduating from law schools, there may be many reasons for this occurrence.

Last year one senior junior female barrister contacted me to say that she could earn more at the bar but decided not to do so for family and social reasons.

Another was reported to say that she worked harder and longer at her legal work so she could afford to pay for an array of domestic staff including nannies, cleaners and cooks.

Two different responses but tailored to one’s own choice.

A barristers’ clerk wrote to me last week to say of her floor: “None of our female barristers charge any less than their male counterparts and in fact may charge more.”

She went on to say: “Obviously there are not as many very senior female commercial silks at the bar because often they are appointed to the bench early or appointed silk earlier than men which affects the income level.”

A female Sydney SC last week tweeted: “As a barrister of 21 years standing, I have no hesitation in expressing my preference to be briefed for my seniority, expertise and experience.”

In my chambers the busiest, hardest working barrister and probably the biggest earner is a female silk.

The bar is a tough place. A barrister is a sole trader. It is a competitive world. Success can be elusive at the bar but can be had.

Apparent disadvantages of background, gender, sexual preference or ethnicity, as I have written before in this paper, are overcome by brilliance, diligence and personality.

The Chief Justice of the High Court of Australia and two other justices on that court are women. They are not sitting there because of affirmative action or quotas but because they were leaders of eminence in their field.

Affirmative action and quotas are a blunt instrument and such a 1970s construct. An “insult to women” , as Camille Paglia said.

Maybe the ABA should send me to re-education camp.

Jeffrey Phillips SC is a Sydney barrister.

Copyright © 2017 The Australian

This article is from the March 24 issue of The Australian Digital Edition. To subscribe, visit http://www.theaustralian.com.au/.

The legal profession is about to engage in a touch of social engineering . The peak body of solicitors’ and barristers’ associations, the Law Council of Australia, has published its Orwellian sounding national model gender equitable briefing policy with a target date of July 1, 2018.

The policy’s aim is to bring about “cultural and attitudinal change within the legal profession with respect to gender briefing practices” . In support of the policy the Law Council states, continuing the doublethink, that it is committed to take measures that ensure a level playing field for all members of the legal profession. The policy encourages all persons or entities who brief or select barristers:

To make all reasonable endeavours to brief or select women barristers with relevant seniority and expertise, experience or interest in the relevant practice area;

By July 1 next year to brief or select senior women barristers accounting for at least 20 per cent of all briefs and/or 20 per cent of the value of all brief fees paid to senior barristers;

By July 1 next year to brief or select junior women barristers accounting for at least 30 per cent of all briefs and/or 30 per cent of the value of all brief fees paid to junior barristers; noting the need to adjust these targets to reflect local conditions; and

To provide a confidential report to the local Bar Association, Law Society, or directly to the Law Council, by September 30 each year with respect to measures taken to implement these targets.

Next year, the targets will be reviewed to reflect the reporting provided by policy adoptees.

It is intended by 2020 women are briefed in at least 30 per cent of all briefs and receive at least 30 per cent of the value of all briefs fees, in accordance with international benchmarks concerning the retention and promotion of women.

The policy can be adopted by briefing entities and clients of briefing entities. The targets are not mandatory, however those who have adopted the policy will have their names published.

Barristers are encouraged to adopt the policy in the use of senior and junior counsel and the passing of briefs to other barristers.

The targets are relevant because on the raw figures of women at the Bar, the policy will mean more work for women barristers and consequently less work for male barristers. In September 2015, a NSW Bar Association press release stated: “Currently women make up just over 20 per cent of the Bar, and less than 10 per cent of its senior members.” The NSW Bar Council adopted the Law Council policy in September 2015.

What does the Law Council have to say to male barristers, previously briefed by large firms or clients , who have been taken off the briefing panel because of their gender? Some level playing field. All this is taking place at a time when depression is a real problem among the Bar. In the past few years I have known three male Sydney barristers who have committed suicide, financial pressure being an overwhelming factor with one of them.

The policy recognises that other groups, beyond women, may reflect “broader aspects of diversity , including with (sic) regards to race and other attributes” . Nothing for them yet, go to the back of the bus. I share an unease about such affirmative action and quotas /targets as does the art historian , author and feminist Camille Paglia. In an interview she gave in October 2016 in The Spectator , these opinions are found;

“We are rocketing back here to the Victorian period with this belief that women are not capable of making decisions on their own. This is not feminism, which is to achieve independent thought and action. There will never be equality of the sexes if we think that women are so handicapped they can’t look after themselves.

“Girls would be far better advised to revert to the brave feminist approach of her generation — when women were encouraged to fight all their battles by themselves and win. I do not believe in quotas of any kind. Scandinavian countries are going in that direction and it’s an insult to women.’’

I also ask these questions: Will there be equitable briefing among women barristers? That is, will the greater amount of work for women barristers be shared equally or will the competent and experienced just get busier? Will well-connected women barristers be more equal than others?

The motto of the NSW Bar Association is: “Servants of all yet of none.” The Bar aims to promote collegiality and mutual assistance. How can the Bar adequately “serve all” when a policy it adopts does not on its face serve all its members? Such a motto and aims are difficult to reconcile when a group within is given preferential treatment. Many at the Bar, male or female, thrive. Some struggle. In what appears to be in some areas a shrinking legal market for the Bar, all of the latter group, of whatever gender or diverse background, need the Bar’s help.

Last month, the Law Council announced a major new program to help lawyers understand and address unconscious bias. The socalled gender equitable briefing policy only serves to express a real bias.

Jeffrey Phillips SC is a Sydney

barrister and was a member of the NSW Bar Council in 2015. He spoke against the adoption of the gender equitable briefing policy

To view and article I wrote which was published in The Australian newspaper on the 29th January.

Last year I served as a member of the Bar Council of New South Wales . The Bar Council performs a great deal of important and useful work representing the interests of barristers and also concerns itself with many Bar related disciplinary and regulatory functions. In recent years and last year I criticised some aspects of the Bar’s leadership as intruding into overtly political matters and departing from its guild-like function in furthering the financial and professional lives of its members. Some of this behaviour appears to be pontification by Philosopher Kings and Queens and at worst a form of social engineering.

Late last year a working group of the Bar, led by Arthur Moses,SC and Kate Eastman, SC recommended in a report to the Bar Council that by July 1, 2017 that firms with at least 25 lawyers and all government agencies apply an affirmative action or so-called ‘ equitable briefing’ policy. The broad detail of which was that the firms and agencies should give 10 per cent of all briefs to women silks .The target rises to 20 per cent of all briefs to junior counsel with at least five years’ experience, and 35 per cent of briefs given to less experienced juniors. Silks were also enjoined to ensure that women appear as their juniors in 23 per cent of matters requiring a court appearance. The report was based upon a survey which suggested a substantial disparity between the gross earnings of male and female barristers. The survey was not based upon the earnings of all barristers but just those who responded to a questionnaire with unverified answers.The value of such a survey underpinning such a gross intrusion into the allocation of work to independent individual professionals is doubtful. There probably is a difference in gross fees between the genders. However ,there can be many reasons for that gap which go beyond sexism within the legal market . One senior junior female barrister contacted me to say that she could earn more per annum but for family and social reasons decided not to do so. That was her choice. Another female junior was reported to say that she worked harder and longer at her legal work to pay for an array of domestic staff including nannies, cleaners and cooks. That was her choice but everyone is different.

The report was before the Bar Council last August for consideration and adoption. I opposed its acceptance and was named in the Sydney Morning Herald with two other silks who asked for their dissent to be noted, Alan Sullivan, QC and Paul Menzies,QC.I criticised the reliability of the survey’s findings but more precisely stated that the Bar Association should be assisting all of its members not just a significant well-organised group. I asked rhetorically why stop with providing a bias to women, some of whom attended the best schools and universities or by their own eminence do not need additional assistance to make more money.Why not assist other more seemingly disadvantaged groups. In a paper by the 2015 President of the Bar Association ,Jane Needham,SCentited “ Tipping the Scales: Equity and Diversity at the Bar “ [2015] (Summer ) Bar News 29 Needham referred to the imbalance of numbers at the Bar of an Asian and Indigenous Australian background together particular problems faced by barristers of the LGBTI community . Yet no preferential briefing policy for them. What of the Anglo-Saxon male junior barrister without great legal connections, not the son of a judge or other legal luminary ,struggling to make a living in perhaps one of the toughest market in decades for the Bar? No affirmative action for him . What happened to the professionalism of the Bar , barristers’ clerks and solicitors attempting to get the best or most appropriate person to represent the client ? History has shown in many fields of human endeavour that over time apparent early disadvantages of background, gender,or ethnicity are overcome by brilliance , diligence and personality . See the triumph in the 20th Century of members of the Bar of a Catholic or Jewish background over the Protestant ascendancy .

This is an opinion piece I wrote with Andrew Martin for Lawyers’ Weekly about the restoration of the rank of Queen’s Counsel in New South Wales entitled “God save the Queen’s Counsel”.