Kate Eastman on the ‘great opportunity’ for equitable briefing
Despite women now outnumbering male judges on the High Court, the Law Council’s equitable briefing targets are yet to be met.
However, that’s something that barrister and chair of the Law Council of Australia’s equal opportunity committee, Kate Eastman AM SC, is hopeful will change moving forward.
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Delivering a keynote at a recent Westpac equitable briefing event, Ms Eastman said that the recent appointment of Justice Jagot to the High Court was a very “significant milestone for the legal profession” and representative of a modern legal profession.
“This should not be surprising because, for at least 25 years, women have outnumbered men in law school. And women now constitute almost two-thirds of law graduates. So, the numbers on the High Court reflect what we’re seeing in terms of law graduates,” she said.
“Women also make up 60 per cent or higher of newly admitted solicitors. And if we look at solicitors from early entry right here, up to 14 years, then women are at least two-thirds of all women solicitors and overall, more than half 53.5 per cent.”
However, in 2021, across Australia, there were 6,371 barristers, of which 1,700 were women, constituting 26 per cent of the bar. In NSW, there were 600 women barristers practising in NSW — a number that doesn’t even make up 25 per cent of the whole of the bar, according to Ms Eastman. Additionally, 4 per cent of the bar were women barristers over the age of 60. Almost a third of the bar were men over 60. Almost half of the bar were men over 50.
When Ms Eastman first started at the bar, there were only 24 silks — and whilst the numbers have risen since then, women barristers in NSW only make up 2 per cent of the whole of the bar across the country.
“We have looked at the bar to say, what is it about the structure of the bar that perhaps doesn’t make it the most exciting place for young women to come? And that’s a whole other conversation for another day. But we’ve also, over the last 10 years in particular, really asked the question about whether the small number of women as a proportion are being briefed commensurate with their overall numbers. And we’ve had initiatives around equitable briefing since 2004, and again in 2009. And those initiatives were not really coming through,” she said.
“A turning point was in 2014, when the Law Council conducted the National Attrition and Re-engagement Study — the NARS report — that had some fairly shocking findings. But in terms of women’s experience at the bar, and briefing practices, women reported being excluded from work [and] losing briefs because they were women and not feeling that they had the same access and opportunities in the way in which you could secure work at the bar. So, there is an issue of women [not being] briefed in the same way.”
Despite this, the evidence of such practices is very anecdotal — which led Ms Eastman to deep dive into 7,000 reported decisions, through a variety of different courts.
“The results of that fairly amateur research were quite surprising. In terms of women appearing in the High Court, women were not appearing in the numbers that they were, at either senior counsel level or junior counsel,” she explained.
“Women were very rarely in a speaking role in the High Court, particularly as junior counsel, and if they were, it was usually because they were there on a pro bono brief. But then, when I went and looked at NSW, I was really surprised that 33 per cent of matters in the Court of Criminal Appeals had women appearing.”
However, comparing it to the Court of Appeal, the numbers were as low as 2 per cent — which Ms Eastman said meant that there was a “good case to say” that female barristers were still not being briefed equitably.
“Yes, I accept there [are] limitations to that research because it’s not picking up cases that are mediation, or other matters, but it did give us a flavour of what the numbers would be. It told us a lot; that women were mostly being briefed by governments and public law cases, rather than private sector cases. It told us that women were more likely to be briefed by mid-tier firms than larger firms. And it also told us about the type of work — and it fell into the stereotype of women’s work, crime, legal aid, public law, and the area that women are really good at specialising in: pro bono,” she added.
“The other thing this work did for us is bring all the little myths up to the surface. So, as we started to think about responding to this, all these things came out, perhaps unintended. And that was that women were better than they’re capable of. Isn’t it demeaning to have to single out women to have a policy? Aren’t you only promoting women who are hopeless anyway, this is going to bring all of us down. But the thing that we found quite extraordinary was a lot of male barristers saying, ‘this is going to take work away from us, and we have families’. And it was interesting that that very unconscious bias came out in a very obvious way.”
In 2016, the Law Council released its equitable briefing policy, which sought to change things in two ways: to set equitable briefing targets for the profession and to report and record whether people were meeting their obligations under the equitable briefing policy.
“We went for the target on the basis that we felt targets would send a very symbolic message about proportionality and representation. But we also thought targets work well for lawyers,” Ms Eastman continued.
“Looking at the current situation, there are 470 adoptees of the equitable briefing policy. Of those 470, three hundred thirty-three are barristers. And 137 are the briefing entities. Our reporting has not been great. Only 38 per cent of all briefing entities and barristers actually report on an annual basis. And I must say that the large clients and the large commercial firms have been exceptional in meeting their reporting obligation.”
In terms of the future of equitable briefing, Ms Eastman said the Law Council will stretch the targets to 2025, at a minimum — but also potentially shift the focus to broader diversity targets moving forward.
“The future for equitable briefing is interesting. We have seen a real push in the last couple of years for the equitable briefing policy to broaden out to other areas of diversity. So, for our colleagues from culturally and linguistically diverse backgrounds, and our colleagues with disabilities, having those opportunities around equitable briefing are also important,” she noted.
“At the Law Council level, we need to do some more research, and we need to think about this a little more carefully. It’s an interesting discussion that we have to have about looking at the intersection experience, but also keeping the focus on merit and excellence.”
Therefore, BigLaw firms should think about why they brief the barristers they do — whether they select barristers based on word of mouth, having a good working relationship, their experience or expertise; but also, what it is stopping them from choosing someone new, and how to overcome that fear, whether contrived or not.
“The Law Council really sees this initiative as one that ensures that clients can get the very best representation. And to try to shift the way we think about people based on appearance or based on assumptions around capacity,” Ms Eastman concluded.
“For us as women barristers, I think it is the opportunity to start to think about working differently. And the way in which we present ourselves does not have to be the same way that our older male counterparts have presented themselves. This great opportunity for equitable briefing will not only allow us to identify excellence, but it will also help us have a discussion about changing our work practices for a broader and more diverse community.”