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Hulls moves on briefing practices

News

Cite as: (2003) 77(10) LIJ, p.18

The campaign to raise the level of appearances for women barristers has produced results with positive action by the state government and Law Institute. The issue has also entered the federal stage.

The campaign to raise the level of appearances for women barristers has produced results with positive action by the state government and Law Institute. The issue has also entered the federal stage.

The state government will introduce measures to encourage equal opportunity briefing practices in two of its statutory bodies in a significant step towards providing more briefs for women barristers.

In a move long lobbied for by the Victorian Bar, state Attorney-General Rob Hulls announced on 28 August that he has asked the Transport Accident Commission (TAC) and the Victorian WorkCover Authority (VWA) to implement ways “to ensure greater levels of gender equality”.

The announcement came during a promising week for Victoria’s women barristers.

On the same day as Mr Hulls’ announcement, the Law Institute Council finally endorsed the Victorian Bar’s Model Briefing Policy – more than three years after its release.

And on 2 September, federal Revenue Minister and Assistant Treasurer Helen Coonan announced she would promote the adoption of an equitable briefing policy within the departments under her ministerial control. (For more on Senator Coonan’s announcement, see below).

However, it was Mr Hulls’ announcement that carried the greatest hope of making inroads into what has been so far an intractable problem – the less-than-fair amount of senior work given to women barristers.

Mr Hulls said he has asked the TAC and VWA to provide him with advice on the implementation, timeframes and reporting arrangements on outcomes relating to the application of three sets of guidelines, including the Bar’s Model Briefing Policy.

The other guidelines are the Model Litigant Guidelines and the Policy Guidelines for the Delivery of Pro Bono Services for Approved Causes. These three sets of guidelines were included in the contracts signed last year by the 33 law firms chosen to be on the Government Legal Services Panel.

Mr Hulls said the guidelines should apply to in-house legal services, such as TAC Law (a division of the TAC), as well as services supplied by private sector firms or legal practitioners acting for the TAC and VWA.

“The TAC and VWA compensation schemes create significant levels of legal work in the private and public sectors,” he said.

For example, TAC Law directly employs about 60 in-house lawyers who generate substantial work for barristers in the County Court and the Victorian Civil and Administrative Tribunal.

“TAC Law has been asked and has indicated a willingness to make practical changes.

“I am keen to ensure a more formal approach is adopted, including regular reporting to the government so progress can be measured.”

While the final details of the plan were still being worked out at the time of writing, legal groups have welcomed the announcement as a significant step toward addressing the briefing imbalance.

Law Institute president Bill O’Shea said Mr Hulls’ plan tackled the issue of “significant underachievers” in meeting the Model Briefing Policy requirements.

He said the move would bring both organisations in line with the firms on the Government Legal Services Panel.

“Why shouldn’t the government’s own lawyers have to do the same? It should be stretched across the board. Fair to one, fair to all.”

Women Barristers Association (WBA) convenor Fiona McLeod said having the TAC and VWA brief more women should allow women barristers to get more work in the common law jurisdiction, which has traditionally been a difficult area for women to break into.

Victorian Bar’s Equality Before the Law Committee chair Frances Millane said the Attorney-General’s announcement implements one of the recommendations contained in the final copy of the Bar’s survey into appearances by barristers.

This appearances report, released on 21 August, adds a further five recommendations to the list contained in the draft report, which was released exclusively to the LIJ in early August. (See September 2003 LIJ, page 26.)

With regard to the state government’s role, the appearances report called on the Attorney-General to extend the Government Legal Services Panel’s briefing practices reporting requirement to the panel members’ government and private briefing practices.

It also asked that all government agencies and departments formally adopt the Model Briefing Policy and include in their annual report the percentage of fees paid to male and female barristers and the percentage of matters briefed to male and female barristers.

Other new recommendations in the appearances report also aim to tackle senior barristers and clerks.

Under the recommendations, clerks would receive a copy of the appearances report and training in equal opportunity briefing practices. Clerks would also be asked by the Bar to formally adopt the Model Briefing Policy.

The report also calls for the Victorian Bar to conduct entry and exit interviews with barristers and to publish the results, as well as arranging a seminar with mentors and senior mentors on ways they can assist with appearances by women barristers.

Ms Millane said Mr Hulls’ announcement was an important first step towards fairer briefing practices.

“I’m happy with the fact that people are now taking notice of what we’ve been trying to say for quite a long time.

“There is momentum, but outcomes are what we are still looking for.”

The victory has encouraged groups such as the WBA to continue their campaign. Already, the WBA and the Equality Before the Law Committee want Mr Hulls to extend his announcement to include criminal law bodies, such as the Office of Public Prosecutions and Victoria Legal Aid.

When asked about this, a spokeswoman for Mr Hulls said she was unable to comment on the Attorney-General’s intentions at this point. Instead, she said public sector organisations should be keen to take the lead on this matter and they were being encouraged by Mr Hulls to do so.

Groups such as WBA have also been buoyed by prominent media coverage given to the issue since July, which has in turn placed public pressure on the decision-makers.

Since the LIJ’s July 2003 cover story “Keeping gender on the agenda”, the issue has received widespread media coverage including front page articles in The Age and the Australian Financial Review.

The Institute has also taken action in support of women barristers to address concerns regarding unfair briefing practices by firms.

At its 28 August meeting in Bendigo, Institute Council voted to endorse the Model Briefing Policy, which was released in April 2000. The Council also voted to send a joint letter with the Bar to all member firms enclosing a copy of the policy. The letter was scheduled to be sent last month.

Mr O’Shea said the Council endorsement was significant, especially for women barristers.

Ms Millane confirmed the endorsement sent an important message to the Institute’s members.

“One would assume that if the Institute represents their members then their members are obliged to take notice of the sorts of policies and the directions they take on their behalf.”

Jason Silverii

Gender on the federal agenda

Federal government minister Senator Helen Coonan has put pressure on her ministerial colleagues to brief more women barristers by committing her departments to a more equitable briefing policy.

Senator Coonan, who is the Revenue Minister and Assistant Treasurer and was a barrister in New South Wales before entering politics, said she would promote the adoption of an appropriate equitable briefing policy within her two departments.

Her initiative came as the Equal Opportunity for Women in the Workplace Agency (EOWA), a federal statutory body that administers legislation covering equal opportunity for women, joined the chorus calling for attitudinal change within the legal profession.

But it was Senator Coonan’s announcement that has placed what has been to this point a Victorian issue on to the national agenda.

Speaking to the Women Lawyers Association of New South Wales on 2 September, Senator Coonan pointed to the Victorian Bar’s appearances survey as proof women barristers were chronically under-represented. She said it was her feeling a similar survey in New South Wales would show the same findings.

It was her experience that adopting an equal opportunity briefing policy would act as an incentive for legal professionals to change their behaviour.

“In this case there would be real commercial advantages for firms that promote the advancement of women, not only at the Bar but from within their own organisations.

“If government departments, public sector and large organisations choose law firms that can demonstrate a commitment to allocating a fair proportion of work and fees to qualified women, I suspect there will be a dramatic surge in the profile of women doing significant legal work.”

She said she would also raise the plan with federal Attorney-General Daryl Williams and other portfolio ministers whose departments were prolific sources of legal work.

“Rather than trying to change to fit someone else’s stereotypes, let’s change the way that the work is allocated,” she said. “For that we need to go to the source of the work.”

EOWA director Fiona Krautil said despite a large number graduating from law schools over the past 30 years, women still lacked a fair presence in the upper echelons of the profession.

She said the only way to rid the imbalance was for clients, such as governments, to drive change.

“We cannot sit back and assume that time will fix it,” she told the LIJ.

“There used to be an assumption within organisations that the cream will rise to the top without help. What we know now is that it is not the case.”

While media reports contended that Senator Coonan’s announcement raised the ire of the Attorney-General, a spokeswoman for Mr Williams said he welcomed the Senator’s initiatives.

The spokeswoman said that Legal Services Directions issued by Mr Williams in 1999 “encourage commonwealth agencies and legal service providers to brief a broad range of counsel and, in particular, women”.

Those directions, which advise departments on the allocation and provision of government legal work, have been under review for more than a year.

In its discussion with the Attorney-General regarding the directions in August last year, the Victorian Bar’s Equality Before the Law Committee urged Mr Williams to adopt the Model Briefing Policy and ensure that all departments and agencies complied with its principles.

The Attorney-General is yet to make a decision on the adoption of the Model Briefing Policy, although he has ruled out supporting a prescriptive model that imposed quotas.

Mr Williams’ spokeswoman told the LIJ that the Attorney-General was currently considering a departmental discussion paper stemming from the review of the Legal Services Directions.

The paper will form the basis for consultations by Mr Williams’ department with legal groups, law firms and government agencies.

The spokeswoman would not put a timeframe on the release of the paper, except to say that it would be released “shortly”.

Jason Silverii

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