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