Why Australia’s advocacy model needs to change

It has something of the old break-of-gauge problem on Australia’s railways. Different systems were developed for historical reasons. They may once have reflected local conditions. They made less and less sense as the federation matured. No one would design them that way now. Yet in professional terms, we still tolerate that kind of border problem in advocacy.

I say that from experience in both branches of the profession. Before coming to the Bar in 2009, I spent 19 years as a solicitor in private practice, including as principal of a private law firm and later partnerships. During that time, I regularly appeared as a solicitor advocate in trials and in Court of Appeal matters. I remain a barrister at the private Bar.

That experience leaves me in little doubt that advocacy does not turn on the branch of the profession. It turns on preparation, judgement, experience and the ability to assist the court. The proper question is not institutional. It is functional: who, in this case, is best placed to assist the court?

What is needed is a coherent national standard, and the cultural acceptance to match it. The case for that is practical, not ideological. It would reduce unnecessary costs. It would make better use of existing expertise. It would likely widen the visible diversity of advocates. It would better accommodate senior practitioners who no longer wish to maintain a full-time referral practice, but whose advocacy ability should not be lost to the system. It would also better reflect what clients themselves see and infer in court.^[1]

The cost point is not abstract. Equitable access to justice should be a paramount consideration for institutional reform. Where the solicitor with carriage of the matter is fully capable of appearing, automatic briefing of separate counsel can produce duplication without corresponding forensic benefit. Legal Aid NSW’s criminal fee guidelines now provide that counsel will only be approved for District Court sentence proceedings in exceptional circumstances. Its civil fee guidelines likewise limit payment of solicitor advocate or counsel rates in certain forums unless the matter is complex.^[1] That is not a repudiation of the Bar. It is an institutional acknowledgment that separate counsel is sometimes necessary, but not invariably so.

Expertise is at least as important. Legal Aid NSW’s current role description for a Solicitor Advocate VI (Crime) contemplates advocacy in District Court trials and complex sentences, mandatory case conferences, complex committal hearings, and Supreme Court applications.^[i]

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The gender point also deserves frank recognition. The solicitor profession is now more female than male in NSW. The Law Society’s 2024 profile records 56 per cent female solicitors. By contrast, the NSW Bar’s current statistics record women as 27.17 per cent of practising barristers and 16.29 per cent of senior counsel.^[2] A more neutral advocacy culture will not, by itself, solve the profession’s gender imbalance. But it may widen the pool of advocates by reducing the structural premium placed on a single traditional pathway – one that may be harder to navigate for practitioners with primary caring responsibilities or for those unable to absorb the financial and professional disruption involved in changing branches of practice. Reform will not solve those broader structural issues by itself. But it may remove one unnecessary source of exclusion.

Nor does any of this abolish the relevance and vitality of an independent Bar. The Bar remains indispensable. There are many matters in which the independence, detachment and specialist focus of the Bar are precisely what the administration of justice requires. The point is not to erase that institution, but to stop treating it as the only institution through which serious advocacy can be publicly recognised.

Nor does reform require any new or weakened regulatory architecture. The Legal Profession Uniform Law already identifies as its objectives interjurisdictional consistency, lawyer competence, client protection, informed choice about services and costs, efficient and proportionate regulation, and a co-regulatory framework preserving professional independence. Existing systems of admission, practising certificates, conduct rules, specialist accreditation and disciplinary oversight would remain exactly where they are. The question is not whether standards survive. The question is whether unnecessary symbolic distinctions survive.^[1]

That is why resistance from the Bar, where it rests only on robing, wigs, titles used in front or juries or the preservation of visible difference, is, with respect, specious. It is not really an argument about standards. It is an argument about symbolism. In that sense, it is more anachronistic than substantive.

The present settings in NSW illustrate the point. Current District Court criminal practice notes governing circuit and Downing Centre matters expressly contemplate “Crown prosecutor or solicitor advocate” and “barrister or solicitor advocate” appearing at readiness hearings, trial callovers and other trial management steps. Yet the Supreme Court’s Court Attire Policy is framed for barristers and states, in terms, that it aims to ensure barristers appear before the court in attire that meets the court’s expectations.^[2] That kind of asymmetry sends a message, whether intended or not.

In Western Australia, solicitors robe when appearing in jury trials, and in Melbourne, they are also permitted to wear wigs.

It matters because reform here is directed to neutrality at the Bar table, not to giving solicitor advocates some special advantage over counsel. The point is parity. If robes or other visible markers of forensic legitimacy are used at all, then the question is why they should be monopolised by one branch of the profession when another is already properly before the court.

Clients understand these things instinctively. They do not experience courtroom symbolism as a technical debate about professional structure. They see who robes. They see who sits where. They see how the bench and opposing counsel speak to each advocate. They draw conclusions about status, confidence and value. Those perceptions are part of the administration of justice, whether lawyers admit it or not.

The profession has adapted before. The Federal Court’s current robing guidance provides that wigs are not worn on any occasion, and that robes are reserved for trials, appeals, and other final hearings.^[1] The dignity of the court has not suffered. So the question here is much smaller. It is not whether tradition must be abolished. It is whether tradition should be allowed to perform work that principle cannot justify.

One illustration from criminal practice makes the point vividly. The High Court cases of Bugmy and Munda are often read together for what they say about the interaction between systemic deprivation of First Nations people as a sentencing feature, equal justice and individualised sentencing. The conduct of Munda’s appeal also says something else, indirectly, about professional structure.

I appeared as lead counsel for the appellant in Munda. The High Court’s published reasons record that I appeared “with Dominic Brunello” for Mr Munda. Mr Brunello did not appear as counsel. He was, however, a West Australian solicitor employed by the Aboriginal Legal Service, who sat at the Bar table, was robed, and performed a role closely analogous to that of junior counsel. He had been instrumental in framing our written argument and oral address. That was not incidental. It reflected a more flexible professional setting, but more importantly, it reflected expertise. He had previously appeared in numerous trials and appeals in that state. He was permitted to wear robes. He brought to the case a depth of experience in Indigenous matters and a level of practical knowledge that many comparatively junior barristers would not have possessed. Unsurprisingly, he has since been appointed a magistrate in Queensland, though, in my view, he is worthy of a more senior role in the judiciary.

The broader point is plain. The profession already recognises, when it has to, that expertise is not confined to one branch. The problem is that this reality is still not consistently acknowledged, and still not culturally normalised, across Australian jurisdictions.

This is confined to criminal law. Across civil litigation, there are solicitors with decades of experience in commercial disputes, insolvency, taxation, regulatory enforcement, administrative law, construction and complex interlocutory practice. Many already do work that is forensic in every meaningful sense: shaping arguments, analysing evidence, making strategic decisions, and carrying the case from beginning to end. In such areas, expertise accumulates. It may sit with the solicitor who has run the case for years, rather than with counsel briefed later. A rational system should be able to recognise that openly.

In the same way, a rational system should be able to recognise that not every barrister will wish to maintain the economics or tempo of full-time referral practice indefinitely. A more neutral model would allow some highly experienced practitioners to continue appearing part-time, or in a mixed practice setting, without being culturally downgraded for doing so. That is a practical gain, not a threat.

The case for reform, then, is not anti-Bar. It is pro-coherence. It is pro-expertise. It is pro-client. It is pro-cost-efficiency. And it is pro-neutrality.

Australia does not need to invent a new advocacy model from scratch. Much of the work has already been done, unevenly, across the jurisdictions. What is missing is a consistent national standard and the cultural acceptance to match it.

The entitlement already exists. The profession should now give it a consistent, neutral and modern practical effect. That is a modest reform. In a federation like ours, it should not be a controversial one.

Sources:

^[1]Source note: Legal Profession Uniform Law (NSW), s 3 (objectives) – interjurisdictional consistency, competence, client protection, informed choice about services and costs, efficient and proportionate regulation, and co-regulation preserving independence.

[I] [Source note: Legal Aid NSW, Role Description – Solicitor Advocate VI (Crime); Legal Aid NSW, Criminal Law Conference 2024 speakers list; Hayley Dean, ‘Update on Domestic Violence Law 2024 and beyond’ (Legal Aid NSW Criminal Law Conference 2025); Isaac Morrison, ‘Defending the Right to Personal Liberty’ (Legal Aid NSW Criminal Law Conference 2024); Paul Townsend profile in the 2024 speakers list.]

^[2] Legal Aid NSW, Crime fee guidelines; Legal Aid NSW, Civil fee guidelines.

^[3] Law Society of NSW, 2024 Annual Profile of Solicitors in NSW; NSW Bar Association, Statistics.

[4] Legal Profession Uniform Law (NSW), ss 3 and 43; Legal Profession Uniform Law Application Act 2014 (NSW), s 3; Law Society of NSW, Specialist Accreditation Scheme / About the Program.

[5] Source note: District Court criminal practice notes for circuit and Downing Centre matters (current 2025 versions); Supreme Court of NSW, Court Attire Policy.

[6] [Source note: Federal Court of Australia, ‘Robing of Counsel’.]

Andrew Boe is an Australian barrister and author.