A new survey of court and Victorian Civil and Administrative Tribunal (VCAT) appearances by female barristers, released last week by the Victorian Bar Council, shows discriminatory briefing practices continue to dog their legal careers. Despite the attention that a 1998 survey of the same issue attracted, little if any progress seems to have been made.
“When women were 15.8 per cent of the Bar, the 1998 court appearances study found that 13.6 per cent of the total recorded appearances were by women barristers,” said Victorian Bar chairman Jack Rush QC in a statement. “It is alarming to note that, in 2001 and 2002, when the percentage of women at the Bar increased to 17.3 per cent and 18.6 per cent respectively, women remained significantly under-represented in proportion to their increased presence at the Bar. Of the total of 3,606 barrister appearances recently surveyed only 13.7 per cent were by women.”
These figures put flesh on the bones of anecdotal evidence, provided both by barristers and the judiciary, that opportunities for women barristers have improved very little since 1998. They also raise the questions of how this affects women’s ability to make their way through the ranks of the Bar or even whether they are discouraged from pursuing a career as a barrister in the first place.
The 1998 survey revealed that women barristers were not being briefed in proportion to their numbers or their seniority at the Victorian Bar. Of even more concern was the finding that they were not being briefed to appear in more senior or complex matters. By contrast their appearance in some courts — notably the Family Court — was also disproportionate but in this case there were more women appearing than would be expected from their numbers at the Bar.
The recent survey suggests these trends have continued. In the Supreme Court of Victoria from October to November 2002, for example, there were 714 barrister appearances, only 9.1 per cent of which were by women. Of those 714 appearances, 18.6 per cent were by silks, but only 6.2 per cent of those silk appearances were by women.
By contrast, in the Family Court between September and October 2001, there were 53 barrister appearances, 37.74 per cent of which were by women. This would appear to reflect attitudes that associate women more with domestic matters or issues of ‘care’ (i.e. those raised in the Family Court) and less with complex commercial litigation.
None of these figures, of course, provide cast iron evidence of how the figures influence women’s career decisions. According to the survey, however, it is “reasonable to assume that the knowledge that briefing practices do not provide women barristers with the same opportunities as men does influence women when deciding whether or not to pursue a career or to remain at the Bar.” The survey’s statistics covering gender and seniority (see tables) would certainly support that assumption.
In 1998, women represented 15.8 per cent of the Victorian Bar, but the figures indicate they were not retained. The survey found that there were 74 female barristers with up to five years at the Junior Bar but that this number gradually dropped, with only 42 female barristers with between 10 and 20 years experience and just two females with more than 20 years at the Bar. In percentage terms, that represents a drop from 28.7 per cent to 1.2 per cent.
Male barristers with up to five years at the Bar, however, numbered 184, rising to 321 with between 10 and 20 years experience, while there were 166 male barristers with more than 20 years experience.
In the three years following the 1998 survey, the number of practising barristers grew while the percentage of women barristers with between five and 10 years at the Bar rose to 25.1 per cent. This figure only rose by 0.4 per cent over the following two years, however, prompting the 2003 survey to conclude: “Importantly, so far as the existing Bar is concerned there has been no real growth in the five to 10 years category as might have been expected if the women from the under five-year category were retained and were progressing to more senior work.”
In 1999, the Victorian Bar — and in 2002, the state government — adopted a model briefing policy based on equality of opportunity principles. The promotion of that policy as well as the widespread distribution of the 2003 survey lie at the heart of many of the recommendations of the Bar committee for whom the survey was prepared. It should be interesting to see how much and what sort of progress has been made in two or three years time.