A few weeks ago, the Attorney-General’s Department released the Legal Services Expenditure Report for the 2021–22 financial year (the report).

Last week, Lawyers Weekly reported on the volume of pro bono hours being undertaken by the Whole of Australian Government legal services panel members – which law firms are meeting the National Pro Bono Target and which ones are not – and how that might influence the government’s decision making, now that the tender process for the new WoAG panel has opened.

The report detailed, among other things, that the Commonwealth’s total legal services expenditure increased by almost 13 per cent from the previous financial year, for a total of $1.19 billion in FY22. External expenditure in this time was up 17 per cent to $658.26 million, with professional fees to solicitors and other providers up nearly 21 per cent, to $520.98 million.

Expenditure on counsel also rose, albeit by less: $88.29 million in FY22, an increase of 1.4 per cent. The number of briefs to counsel decreased by almost 17 per cent, down from 5.732 in FY21 to 4,761 in the following year.

Equitable briefing results

The report outlined the Commonwealth’s targets to brief: senior female barristers (that is, women barristers with either 10 or more years’ experience at the Bar or those who are silks) for at least 25 per cent of briefs (or 25 per cent by value) and junior female barristers for at least 30 per cent of briefs (or 30 per cent by value).

In FY22, the Commonwealth exceeded these targets:

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• More than two in five (43.8 per cent) of briefs to junior barristers went to women.
• Nearly three in 10 (28 per cent) of briefs to senior barristers went to women.
• Almost half (48.4 per cent) of the value of briefs to junior barristers went to women.
• One-third (32.7 per cent) of the value of briefs to senior barristers went to women.

Reactions and implications

Responding to the report’s “illuminating” figures, Australian Bar Association president Peter Dunning KC said that the Commonwealth – as a “significant user” of the bar – “has made real progress and continues to make gains on the issue of ensuring equitable briefing of counsel, especially in the area of remuneration”.

With briefs to juniors almost at parity (44 per cent to junior women barristers compared to 56 per cent for males), Mr Dunning said: “Equality is firmly on the horizon” – especially when considering that, four years ago, that split was 37 per cent to 63 per cent.

However, he continued: “At least as important [and] arguably more notable, is the encouraging news the statistics reveal in relation to the rates of remuneration women are achieving.”

As had been the case in the previous two years, Mr Dunning listed, the average value of briefs to female counsel exceeded the average value of briefs to male counsel in the most recent reporting year.

Georgina Schoff KC, who is the president of the Victorian Bar, deduced that the report makes clear that “the independent bars of Australia are a trusted source of legal expertise to government”.

Targets have been effective, Ms Schoff went on, in driving a more equitable approach to briefing.

“The experiences of the Commonwealth demonstrate the benefit of policies that drive more equitable briefing practices. Such policies will encourage more women to pursue a career as a barrister,” she surmised.

The Women Barristers Association made the same point, noting it is hoped that the policies of the Commonwealth and Victorian government (which recently adopted briefing targets of 50 per cent by number and value for panel firm work) will continue to drive more equitable briefing practices, which in turn have the effect of encouraging more women to join the Bar and remain there”.

It is further hoped, WBA added, “that both government and private briefing entities consider diversity more generally in their briefing practices”.

Melbourne-based barrister Dr Kylie Weston-Scheuber (who recently appeared on The Lawyers Weekly Show to discuss progress in equitable briefing) noted that the Commonwealth’s reported figures “compared favourably” with the Law Council’s latest publicly available data, which showed reporting entities briefing women in 31 per cent of matters, but only 23 per cent of fees going to women.

The report highlighted, she proclaimed, that “when gender equitable briefing targets are at the forefront of briefing practice, and there is a commitment to complying with them, targets are not only met, but exceeded”.

Dr Weston-Scheuber added, however, that despite a significant commitment to gender equitable briefing across the board, “statistics consistently show that overall private firms do not achieve the same in equitable briefing as government”.

“It would be great to see these kinds of figures being achieved by private firms,” she noted.

Carmel Lee, who won the Barrister of the Year category at the 2023 Australian Law Awards, and who noted that the increased volume and value of briefs were “particularly pleasing”, supported Dr Weston-Scheuber’s comments.

“The Commonwealth’s notable positive performance … sets a welcome example for other legal sectors, particularly the private profession,” Ms Lee posited.

Room for improvement for senior barristers

This all said, there remain gaps.

Australian Women Lawyers president Astrid Haban-Beer said it is “disappointing” that senior women barristers are still receiving a “significantly lower” number of briefs (28 per cent compared to 72 per cent).

Ms Haban-Beer pointed to the fact that the number of senior women barristers briefed is not changing significantly year on year – between 2018 and 2019 and the most recently reported financial year – the volume of briefs received by senior women barristers has hovered between 27.4 per cent and 29.8 per cent.

That high point came in 2020–21, meaning that this past year’s figure of 28 per cent marked a decrease in briefs going to senior women barristers.

This suggests, she said, that (given three in four government briefs come through a legal service provider) law firms undertaking Commonwealth work are “not widening their pool of barristers”.

Mr Dunning also pointed to the lack of a “marked shift” in the split of briefs offered to senior barristers.

“There will be an inevitable time lag for the split at the senior level to approach equality and the figures reflect that,” he mused.

“That said, as former chief justice Susan Kiefel has observed a number of times this year, hopefully the sense of obligation on female silks to take an early judicial appointment is passing as courts themselves are moving closer to equality, which should have a positive impact in this regard.”

Further effort needed

Ultimately, despite overwhelmingly promising results, the federal government cannot rest on its laurels.

Looking ahead and while the report showed “some somewhat pleasing figures” regarding the exceeding of stated targets, Ms Haban-Beer noted that AWL would support a “much more ambitious target” for the volume and value of briefs, as well as consideration for upping the pool of barristers who undertake Commonwealth work.

“Equitable briefing must also be intersectional and AWL supports initiatives that reflect briefing with broader diversity attributes also in mind,” she suggested.

“We also know that often government work is remunerated below prevailing market rates and fee increases are rare and often capped. This may be inadvertently exacerbating the gender pay gap.

“The Attorney-General has already signalled his interest in promoting equitable briefing and we look forward to consulting on this issue in the year ahead.”