Introduction: Law Society of NSW and NSW Bar Association Equitable Briefing Networking Function
Environmental and Planning Law & Public and Administrative Law
NSW Bar Association Common Room
Diversity, equality, respect, inclusion.
Justice, integrity, equity, and excellence.
These are the values which the Equitable Briefing Policy[2] aims to pursue. In so doing, the Policy recognises that public confidence in our justice system is enhanced when choices for legal practitioners and their clients are maximised by a Bar that reflects the composition of society and where those choices are driven by merit. In turn, such measures assist in creating a judiciary that is a microcosm of society, thereby enhancing public confidence in our judicial system.
It is important to recognise that we are in a period of transition. It is an exciting time to be a part of this movement for change. The days when it was acceptable to say "you know there are a lot of solicitors who won't brief you because you're a woman" are long gone. It was with these words of encouragement many years ago that I embarked upon my career at the bar. Gone also are the days where as a woman it was assumed that you would practice in family law or wills and trusts. While I have every respect for those who practice in these difficult areas, when I joined the bar I was determined to practice in areas where women were not then represented and to demonstrate (although it sounds odd to say today) that there were no areas of law which were too difficult for a woman.
The challenges now lie more usually in subconscious bias from which none of us are immune. It is for this reason that the self-assessment, transparency and accountability that the Equitable Briefing Policy recommends are so important. Training tools, such as the online cultural diversity training program developed by the Judicial Council on Cultural Diversity[3], also have an important part to play in assisting us to recognise subconscious biases which may influence our decisions. For example, sometimes people assume that they need an aggressive advocate, and falsely stereotype this as a male characteristic. Yet judicial officers are persuaded and assisted by careful and thorough preparation and analysis. Aggression has no place in that process.
To change things then, we need to start with ourselves. This may mean that we need to face up to uncomfortable truths about the assumptions we might make when it comes to briefing choices.
So let me posit two scenarios.
- Scenario 1: I've put forward the names of three barristers who we might brief and this includes Ms Lee who I've heard is very good. But we have used Tom Smith in the past and he's never let us down. And this is an important case for the client. I know Tom personally. He works well with the team. And no doubt there'll be another opportunity to brief Ms Lee.
- Scenario 2: I've put forward the names of three barristers who we might brief and this includes Mr Smith and Ms Lee. I know we usually brief Tom in this kind of matter and no doubt he would do an excellent job. But I've also heard excellent things about Ms Lee. I saw her recently in court and she was well prepared and really knew her area. I think we should recommend her to the client this time. It's a good opportunity for us to expand our pool and work with new counsel.
I could posit similar conversations when silk's advice is sought on a junior to brief, or a junior's advice as to a silk, or between solicitors and clients.
The challenge, if we are to effect change, is to take scenario two seriously. I'm not talking about Captain Risky in the tv ads, splashing about in his hot tub on the balcony with exposed electric cords. I'm speaking of prudent, open-minded briefing practices. We simply can't make promises that we'll brief a woman next time that we know, in our heart of hearts, we don't mean to keep.
As a practical example, when, as a solicitor, you see an advocate on the other side do a fine job, consider briefing them next time. Similarly, senior counsel have a vital role in bringing juniors into cases and mentoring them. As an aspect of this, senior counsel should consider whether it is appropriate for junior counsel to present contentious aspects of the case, such as handling objections to evidence, cross-examining witnesses, and appearing on interlocutory arguments. Such practical steps give clients and solicitors the opportunity to see just how talented some of the junior members of the Bar are, both women and men, and to assist juniors in gaining essential experience on their feet.
The Policy also recognises the important role that clients may play in driving change, and corporate and government clients increasingly require the demonstrated application of equal opportunity principles in the composition of their legal teams.
By adopting approaches such as these, and encouraging merit as a fundamental tenet of briefing practices, I believe that everyone benefits, including the public. It encourages competition, it encourages excellence, and it assists in achieving equality.
On that note, I wish to welcome you all to the third in this successful series of networking events. I hope you enjoy the evening and that some of the contacts which you make tonight herald the beginnings of long-term professional relationships.
[1] LL.B (Hons)(Adel), LL.M, PhD (Cantab), FAAL.
[2] Law Council of Australia, Equitable Briefing Policy (2016): https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/equal-opportunities-in-the-law/national-model-gender-equitable-briefing-policy (viewed 7 November 2017).
[3] A link to the Cultural Diversity E-Learning program can be found at: Judicial Council on Cultural Diversity, Resources (2017): http://jccd.org.au/resources/ (viewed 7 November 2017). See also the Hon Wayne Martin AC, "Introducing the national online cultural diversity training program" (2017) 29(5) Judicial Officers Bulletin 39.
