Remarks made by Chief Justice Allsop

Launch of the CommBar Equitable briefing initiative

Federal Court of Australia, Melbourne

Chief Justice Allsop 11 November 2015

RTF version (184 kb)

1   I am very pleased to be able to be here this evening. On previous occasions, I was not able to attend the workshops.

2   I do not wish to go over matters debated the discussed on those earlier occasions. Rather, I wish to make a few remarks, in particular from the perspective of the Federal Court.

3   The initiative is directed to a problem which is multi-faceted, to a degree entrenched, to a degree fluid and changing, but which is eminently capable of resolution.

4   It is 2015; not 1915, not 1965 and not 1995.

5   One of the facets in the problem which the Courts have a responsibility to deal with is the creation of an environment in which male-club-like-blokeiness in the conduct of litigation is driven out. This is driven out partly by gender balance of the judiciary, and also by how we engage in the room and space that we inhabit: the courtroom. If this room projects the atmosphere of a male-cued and dominated aggression and blokey familiarity, that is seen by the client, the solicitor, and the Bar as the nature of the task and as setting the (male) standard in dealing with that task. It must be made clear by the Court that this is not acceptable. Whether it be commercial litigation, or the hard-fought criminal trial concerning the liberty of the subject, how we present ourselves (judges, counsel and solicitors) as the profession, is crucial. We can alienate, not just women, but people from other cultures, by how we project ourselves.

6   The central values of our society are fairness, equality and the dignity of the individual. There are fault lines in our society where we can question whether these values are properly recognised and vindicated. Foremost amongst those fault lines is the place of women in our central institutions – and that is what the Bar is – a central institution.

7   If we cannot be proud of the fairness and equality in how we work in this institution, what chance do we have to confront, with any success, those whose views and attitudes have at their core the subjection and subjugation of women, sometimes by violence, sometimes by attitude and behavior,  sometimes by belief.

8   No one is calling for the interests of clients to be prejudiced – far from it. These initiatives are likely to benefit clients.

9   I know the Sydney Bar better than the Melbourne Bar. So let me make a statement about it which is no doubt one that can be made about the Melbourne Bar also.

10   If a solicitor in Sydney was putting together a panel or stable of the best 20 commercial barristers in their late 30s and early 40s, especially senior juniors, and that panel did not contain at least 8 to 10 women, he or she either would not know what they were doing, or had a degree of bias. That may be a bias based on ignorance. We should not underestimate the significance of ignorance.

11   It is the obligation, not only of solicitors, but also of the Bar itself, to make sure people know who is in practice, what their skills are, their CVs, their Harvard Masters, their Oxford BCLs, etcetera, and their availability. “Networking” is not entirely a dirty word.

12   The Bar also must make its talent – male and female – known to those who brief it.

13   One thing that should be borne in mind about building these stables, there is a tendency to try and get these people fully formed. Maybe if solicitors reverted to the professional model of an earlier generation of using the junior Bar very early, widely and imaginatively (even on office account) there would be a greater capacity to see the talents of junior barristers – female and male – and realise that, depending on the issue, the case, the best first three barristers to brief might well all be female. Not because you need to brief a woman, but because, for the task at hand, she just might be the best.

14   The charter should be seen as a valuable and important step in fostering the fundamental values of fairness and equality, the application of which is not restricted to gender, and the application of which is the standard by which we as an institution are marked.

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