Model advocates or a model for change? The model equal opportunity briefing policy as affirmative action.

• Jurisdiction: Australia
• Author: Bartlett, Francesca
• Date: 01 August 2008

[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...