NARRATION:

An important outcome of the Hunter McElvie report was the recommendation of an equality of opportunity model briefing policy, which was endorsed by Victorian Attorney-General Rob Hulls in late 2000 and formally adopted by the Victorian Bar Council in April 2004.

Kim Knights, WBA convenor 2005-06

I’ve definitely inherited the benefit of the WBA, and I’d also like to say I’ve inherited the benefit of the (Bar) Equal Opportunity Committee and the Equality before the Law Committee prior to that, which is a committee of the Bar Council. And one of the big changes has been the model briefing policy. The WBA has made great progress, but we still suffer actually from a lot of misinformation out there, that there is a belief that there is a quota system from the government for briefing women, and that breeds a lot of discontent. It breeds a view that we are taking food out of other people’s mouth, that we are getting briefs in circumstances where we are less qualified for them. So yes, we’ve made great progress, but there really are still some very large cultural issues that need to be dealt with.

Judge Frances Millane

Women were getting less well-paid briefs and not getting briefs that were senior and not getting briefs in areas where traditionally the males dominated, such as commercial work and not progressing and that was still the case in 2003. One of the achievements for women barristers is that we managed to not only win over many of the men within the Bar, the men with power, but we went outside the Bar and we approached government directly and asked them to support us and to stand behind their equal opportunity laws and implement it appropriately. So we went from moral persuasion, which was the model briefing policy that came out of the (Hunter McElvie) report and we moved to commercial persuasion and that commercial persuasion has had some effect. But from where I sit as a judge it hasn’t had enough of an effect because there still aren’t women briefed in trials before me in civil matters and I don’t know why. I despair. I don’t know what my colleagues’ experiences are. But in the common law jurisdiction, I rarely have a woman running a matter before me.

Judge Liz Gaynor

Because I’m sitting up on the bench now and I’m now seeing in five years as a judge, I have had four women defend a trial. Right. Plenty of women prosecute. Four women have defended trials – it is absolutely disgraceful and disgusting. I had actually no idea. If it’s a government department controlling the briefing such as Office of Public Prosecutions or TAC or Workers Comp, there will be women there, usually if it is in civil, as juniors. But where it is private enterprise, which is defence work in crime and plaintiff work in civil, it’s blokes, wall to wall, shag-pile carpet blokes, I’m telling you and it’s really disgraceful.

Samantha Marks

When I was convenor in 2004, I opened up the Financial Review. Reminded of this, I was looking at it today to see a table of where the Commonwealth work had gone over the previous two years and the (Financial Review) article by Chris Merritt made a number of points about who was getting the work but I was prompted to write on behalf of WBA and I commented that one aspect of this table was very clear. Of the 46 names listed as having been the barristers who had received $5.5M in Commonwealth work over the last two years, only two appeared to be female. It got even better. The two were at the very bottom and the eighth of the bottom of the list which set out earnings in descending order, the two earned a total of $9484.00 out of the $5.5M, a proportion of 0.17%. And to put it in context, I pointed out that the women currently made up approximately 14% of the New South Wales Bar and 18% of the Victorian Bar - being the two largest bars in Australia. Now in the letter, I went on to say “this is why we have the model briefing policy - not to ask people to brief any sort of quota, but to consider whether there might be an equally meritorious female barrister on occasion as well as the males”.

Frances O’Brien SC

Institutions have to be prepared to give to everybody at the Bar the same opportunities as they give to the men. They were briefing Felicity (Hampel) and Lillian (Lieder) and Betty (King) because they were bloody first rate, having learnt their job, not on the support of the Legal Aid Commission of Victoria but by sheer dint of having someone brief them, God knows who. But they’d got to the top and suddenly institutions would brief them. But for the men, it was a different kettle of fish; they got institutional support from the beginning. And that is the fundamental point. There has to be institutional support for everybody, not just for the men. It’s a matter of simple equal opportunity.

Juliette Brodsky

The (Victorian) Bar I know introduced a directory of women barristers and obviously with the view that solicitors can no longer plead ignorance of which women are available and what areas of expertise happen to be, but from what you are saying, Fran, it’s not making a great deal of difference.

Frances O’Brien SC

The figures speak for themselves. It is distressingly so, but they seem to. I must say, during the report process, I was the representative sent to the Legal Aid Commission and during the discussions, I was aware that they knew what their situation was - this was in 1998. They knew that their figures were very, very bad and I knew that because I had someone on the inside who had done some research and I knew a report had been prepared, and when we went to them, we said, we understand there has been a report and the new then-director said, “Oh, we’ve looked and we’re searched, there is no report, no, there is no report”. (Laughter) “No, no, we are wonderful and we are heroes and no, of course, we brief women”. And they do, in the Children’s Court and the Magistrates Court, fantastic, good on them, so they ought. That’s not the point. The point is that if you’re not getting the Court of Appeal work, you’re not getting the trial work, that’s really the import of all of that.

Juliette Brodsky

Judge Lewitan, you had a point to make?

Judge Rachelle Lewitan

I just want to say (that) in the County Court, I think that the model briefing policy has kicked in, has it?

Frances O’Brien SC

Has it? (Laughter)

Judge Rachelle Lewitan

I think so, because I see women being briefed by Legal Aid in the criminal jurisdiction. I see them being briefed in the serious injury jurisdiction. I have just finished a jury trial where the barrister was a female. So I think that it has kicked in but probably not at a Court of Appeal level and probably part of the reason why they are being briefed by Legal Aid in the criminal jurisdiction is that it is not very well paid and perhaps the women are more prepared to undertake that work than the men.

Judge Frances Millane

Because I think the model briefing policy has worked to a point and it’s now groaning I think under the stress of us all trying to reinterpret it and say “How can we make this better?” I don’t think we can make it better because they all say they’ve adopted it. But the results, if the surveys that Caroline has done and others have done, are not there.

Juliette Brodsky

Well, actually, just let’s just touch on this survey that you did, Caroline. You are immediate past president of the Women Lawyers Association - you are also assistant convenor of the WBA at the moment. What are the main findings of this survey?

Caroline Kirton, WBA convenor 2007 – present

The main results nationally were extremely disappointing, that women were not appearing in any significant numbers in the superior courts around Australia and I think the statistics in the Federal Court were particularly disturbing where they looked at number of appearances and also length of time of appearances, because length of time is a direct correlation to monetary outcome, the amount you’re paid. And in the Federal Court, silks - male silks - were appearing on an average of say 200 plus hours within the survey period and female silks one or two hours within that survey period. The same situation was in relation to juniors in the Federal Court during that period. And it is very disconcerting if appearing as a junior in a long commercial trial or any sort of trial is your teaching ground and if women are not being given the opportunity to learn in these big commercial matters, that’s quite detrimental. But all the other courts, senior courts, women just weren’t appearing and we’re talking about ten years post, well 7 to 8, 9 years post the VWL, the Vic Bar survey and I just don’t think a lot has changed since the Hunter Report in 1998.

Juliette Brodsky

So you are saying, in other words, the trickle up theory is not working?

Caroline Kirton

It is not working and I don’t know exactly why it’s not working. I’ve got a variety of theories which we all talk about and ideas, but I really think that more empirical research, more academic research needs to be done into why these – why this is happening. It is all very well for us to sit round the table here and speculate why this may be but we need more research into why this is.

Edited transcript of interviews conducted by Juliette Brodsky on March 30 and April 10 2007 in the Neil McPhee Room, Owen Dixon Chambers East, and filmed by Sarah McLeod, Stewart Carter, Branden Barber and Bonnie Elliott.