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The ugly face of gender in the law

The ugly face of gender in the law

There are still too few women with speaking parts in the courts, reports Kate Gibbs. Recent statistics are certainly not pretty.WHEN THE president of the peak national body representing…

There are still too few women with speaking parts in the courts, reports Kate Gibbs. Recent statistics are certainly not pretty.

WHEN THE president of the peak national body representing Australian female lawyers was told she shouldn’t “mother” a certain opposing junior male advocate, she knew for sure there were entrenched gender issue affecting the work of female advocates in Australia.

Her view has recently been supported by a comprehensive national gender appearance survey undertaken by the AWL.

In an interview with Lawyers Weekly, Australian Women Lawyers (AWL) president Caroline Kirton said there are preconceived notions that seriously hinder both the access women advocates have to trials, as well as their future careers.

As her memory serves her, Kirton recalls that she was contacted up by a man who briefed her on a matter. But he gave her a stern warning about the way she was to conduct her work. “He told me that the fellow I would be opposed to had only just come to the Bar and I was not to ‘mother’ him. It was so patronising. I was so offended, after I had been at the Bar for 10 years, that a male took it upon himself to tell me not to ‘mother’ a young advocate, and that I still needed to go hard on him.”

It is exactly this sort of anecdotal evidence that in 2004 spurred the AWL into a nationwide survey of the appearance of advocates in various courts across the states. The newly released Gender Appearance Survey 2006 reveals two worrying trends, according to Kirton.

First, women are not appearing in the superior courts at the rates that they have been coming out of law schools for the past 20 years, she said.

“They have been coming out of schools at 50 per cent plus, and we are at the situation where in the supreme courts of all the states, you are not getting 50 per cent of the appearances, or anything like that, by women.”

In the survey of advocates appearing in courts between 2004 and the first half of 2005, it is revealed that, for example, in the NSW Supreme Court just 15.6 per cent of all appearances were by women. In the ACT, this number is 12.5 per cent, and it is 7.2 per cent in the same Court in Queensland. The highest appearance of women was 40.8 per cent, in Tasmania.

But more than this should be creating worry lines on the fairer sex, as women are also not getting access to the longer trials, as their male counterparts are.

“The figures in relation to the length of hearing are very disturbing. When women are getting work as advocates — and we not looking at barristers but women coming into court rooms with speaking roles — they are generally getting shorter cases,” said Kirton.

Of course, longer matters are more lucrative, but that is also where junior advocates are able to gain experience if they are to become accomplished advocates of the Supreme Court, the Court of Appeal and the High Court. Kirton argued that women need that experience on their CVs if they want to apply for silk, noting that it is “particularly disturbing”.

In the Federal Court the average length of hearing for male senior counsel was 119.7 hours, whereas for female senior counsel the average length of hearing was 2.7 hours. Things are not much better in the Federal Court, where the average length of hearing for a junior male to senior counsel was 223.6 hours, whereas for a female junior counsel in the same position it was 1.4 hours.

Statewide, statistics are also ugly, the survey suggests. In the District Court of Queensland, the average length of hearing for a male who was junior to senior counsel for criminal hearings was 115 hours, whereas for a female junior counsel in the same position it was 1 hour.

At the 10th anniversary of Victorian Women Lawyers late last week, the Chief Justice of the Supreme Court, Maralyn Warren opened her speech by confirming that the situation of women’s speaking parts is also dire in that state. This, agreed Kirton, is a “grassroots issue”.

“We need to get women being briefed for junior briefs, where they are getting long experience, watching their leaders, and if they are not getting briefed on those types of matters, they are being deprived experience that their male counterparts are being given.”

As her own experience showed her, the “mothering” instance just being one shining example, women in law have been experiencing a bias towards selecting men to appear in courts. Stories like Kirton’s have made their way around the echelons of women lawyers and barristers.

According to Kirton, women on the bench were asking “where are the women?”. She noted that “women report back and tell us about these issues”.

“It’s the experience of women who are appearing in court in litigation. The board in 2004 was very concerned about what they were consistently hearing not only from practitioners but also from the bench.”

Kirton urged law firms and government to turn their heads to this issue, and to use female advocates where and when it is appropriate. Rejecting a notion that all men belong to an old boys’ club, she saw it that in many cases there is “simply a failure to turn your mind to these issues”.

She stressed, however, that there are in fact “a lot of very good men on the bar”, noting one particular male silk who has four daughters. “He makes it his business to make sure than he recommends female juniors as well as male juniors,” she said.

Former High Court Justice Michael McHugh also put it eloquently. “So why, to use Justice Kirby’s words, do women have so few speaking parts in the High Court? The inescapable conclusion is that it is the product of the discriminatory, systemic and structural practices in the legal profession that have been well-documented in recent years and which prevent female advocates from getting the same opportunities as male advocates. It can’t be lack of ability or numbers.”

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