Australia’s legal profession has long struggled to reflect the diversity of the community that it serves. While there has been progress in increasing the overall representation of women in the law, the statistics often ignore the intersections between gender and other power structures – and so tell only a fraction of the story. Without this lens, policies that aim to increase women’s representation in the legal profession risk replicating the systems of discrimination that many of us entered the law to combat.
As reported in “Closing the leadership gap: How women are driving change in Australia’s legal profession”, there are now more women than men in the Australian legal profession across law firms, the Bar, the judiciary and the public sector. But progress in senior leadership is mixed. Recent research by the International Bar Association and Law Council of Australia reported that 36% of law firm partners are women. At the Bar, only 30% of barristers and 16% of ‘silks’ (the most senior barristers) are women. In the judiciary, just under 50% of all Australian judges are women.
This is a familiar story. Countless reports, inquiries and surveys have documented gender inequality within the law. We have celebrated significant milestones in achieving gender parity and lamented the slow progress in the upper echelons of the profession. But unspoken in this analysis is the assumption that within the sisterhood, we are all the same, and progress for one means progress for all. That is simply not the case.
Women of colour across industries report that race and culture are the most significant factors in discrimination in the workplace. This is reflected in my own experience in the law – a government decision-maker assuming that I was the applicant in a visa application interview (I was actually the lawyer), a promotion that could not be announced internally as it was considered too controversial (but the promotion of my white, male colleagues a few months later was apparently not). Colleagues across the legal profession have countless other examples, many far more invidious.
And while gender equity in the legal profession is meticulously counted and evaluated, very little data is publicly available about the gap in representation, pay or promotion for people of colour. If we cannot fully identify the problem, then how can we hope to find meaningful solutions?
For too long, policies that aim to address systemic barriers and increase diversity within the law have ignored intersecting forms of power and oppression that many women lawyers experience. To create real change for all women in the law, our conception of equity must evolve to better encompass the rich textures of our identities and the systems that we work within.
As lawyers, one way we can start to shift the scales is through equitable briefing practices that extend beyond gender to set measurable targets for briefing diverse barristers. At the Human Rights Law Centre, our equitable briefing policy is one of the only in the country that sets targets for briefing people of colour, Aboriginal and Torres Strait Islander people, members of the LGBTQIA+ community, women and gender diverse people and people living with disabilities.
Our policy was developed in 2022 in consultation with a range of stakeholders across the legal profession. We consistently heard that equitable briefing practices have helped increase the number of briefs to women, but to achieve real equity we must confront the reality that only some women have been the beneficiaries of these policies – and many others have been left behind.
For the first time last year, the Human Rights Law Centre exceeded each of our equitable briefing targets including 50% of all briefs to women or gender diverse barristers, and 22% of briefs to Aboriginal or Torres Strait Islander people, people of colour and people with a disability.
Our equitable briefing policy continues to evolve and we have recently set more ambitious briefing targets to:
- Include barristers who identify as part of the LGBTQIA+ community in response to feedback from the Bar;
- Increase our overall targets for briefs offered and accepted by diverse barristers to continue to improve our briefing practices; and
- Introduce new targets for briefing the most senior barristers (‘silks’) in recognition of the barriers that diverse barristers face to progression at the Bar.
Even with these changes, our policy does not encompass all aspects of diversity, intersecting forms of privilege and oppression or all barriers to equal participation in the workforce, such as caring responsibilities or socio-economic background. But it is an important step in starting to build a more nuanced understanding about inequities within the law, and the strategies to address them. Pursing equity in the workforce must be a process of continual improvement and learning.
Real change means uplifting all women in all areas of the legal profession. And that would be a story we could all celebrate.