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According to merit: one step forward

Every Issue

Cite as: (2009) 83(02) LIJ, p.83

In the gender equality stakes, it seems that progress is never consistent.

In the gender equality stakes in the legal profession you always hope that things are progressing in the right direction, but at the end of 2008 I was saddened with retrograde news.

However, first the good news.

By the end of the year, there was some good news on the flexible work practices front,1 with almost a third of all special counsel working part-time and a quarter of senior associates working part-time, an increase from 8.5 per cent to 9.1 per cent. However, the number is far lower for partners working part-time.

They say that in these economic times, the availability of flexible work practices should increase as a way to retain staff until the economy turns itself around. So the good news is that the opportunities for part-time work are, and will continue, increasing for women and men.

Other good news was that all the individual winners of the Corporate Lawyer Awards were women.2 The winners were: Sinclair Knight Merz corporate counsel Helen Gillies (Australian Corporate Lawyer of the Year); Special Broadcasting Service Corporation general counsel Lesley Power (Australian Government Lawyer of the Year); and BlueScope Steel legal counsel Louise Leaver (Australian Inhouse Lawyer Young Achiever of the Year).

This news, however, is at odds with the bad news that while women are being recognised in this context, we still have ludicrous newspaper headlines such as “Why gender trumps talent”3 in the context of the decline of women on boards.

That article exposed the subjective appointment process of directors, including a dangerously false perception that women directors are of lesser value and appointed for their gender and not for their skills.

In my column in December 2007,4 the statistics were 8.7 per cent of directors on boards were women, but as I write this, the statistics are 8.3 per cent.

Mooted solutions for companies include linking CEO pay to promotion of women for the top 200 ASX companies.

Former Coles Myer, OPSM, Westpac and Pacific brands director Helen Lynch said she was against quotas but targets should be set for senior ranks, and that it was against the nation’s interests for the talents of 50 per cent of the population to be under-used.5

Norway has taken “a big stick for getting women on boards” and in 2003 legislated to give public companies five years to ensure women held 40 per cent of board positions on listed companies or risk closure, and that just kicked in for January 2008.6

The result was that by mid-February last year, 39 per cent of board representatives were women. And others are following, with Spain passing similar legislation (in full effect by 2015) and Sweden proposing fines for companies that do not have 40 per cent of women on main boards.

To my mind, we should aim for a target of 40 per cent for women senior counsel and senior women partners, as well as women on boards.

The 2008 Bar Council elections saw women voted to the Bar Council but no women voted in for the senior category.

Women comprise 20 per cent of the Bar and having no representation on the Bar Council at the senior category is a shocking loss for the Bar as a whole.

In this column in December 2007,7 I wrote about the proposed resolution for two senior positions on the Bar Council to be reserved for women, and how this resolution was ultimately rejected by the Bar.

One of the arguments advanced was that the resolution was not needed as at that time there were two women in the senior category on the Bar Council. I said then and I say again “that good women get elected anyway is a fallacy – sometimes they do and sometimes they don’t and sometimes there are senior women who do not gain recognition and an opportunity to contribute to the decision making process”.

Victoria University School of Communication, Culture and Languages head Jenny Rea said just over a year ago that Australia is particularly slow to change and if it continues at the current rate of change it could be a century before women are represented in proportion to their population on governing bodies.

If things are moving backwards now, how long is it going to take?

The economy cannot wait a century. In a 2007 Catalyst study8 (“The bottom line: corporate performance and women’s representation on boards”) found that companies with the highest numbers of women on top management teams performed better than those with lower numbers.

And the inspiration for Norway’s lead came from Ansgar Gabrielsen, a Norwegian businessman who was concerned less about gender equality and more about “the fact that diversity is a value in itself, that it creates wealth”.

And those words leave us with much food for thought in these economic times.

SIMONE JACOBSON is a committee member of the WBA and former WBA convenor.

1. See “Women in legal profession in rush to work part-time”, The Australian, 7 November 2008,,28124, 24613422-5018061,00.html.

2. See

3. Australian Financial Review, 12 November 2008.

4. “Firm opinions”, p95.

5. “Link CEO pay to promotion of women”, The Age, 13 November 2008.

6. See “Norway’s big stick for getting women on boards”,

7. Note 4 above.

8. See


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