The Legal Profession Welcomes Another Benchmark

For just over two months this year – from 2 October 2017 until the retirement of Canada’s Chief Justice on 15 December 2017 – four women will hold the position of chief justice (or its equivalent) in the following originating members of the Commonwealth: Australia, New Zealand, the United Kingdom and Canada. These women, and the courts over which they preside, are:

  • The Honourable Susan Mary Kiefel AC – Chief Justice of the High Court of Australia (HCA), appointed on 30 January 2017.
  • Dame Sian Seerpoohi Elias GNZM PC QC – the 12th Chief Justice of New Zealand, assumed office on 17 May 1999.
  • Brenda Hale, Baroness Hale of Richmond – the Deputy President of the Supreme Court of the United Kingdom, appointed June 2013. On 2 October 2017 she will take office as the first female President of the Supreme Court of the United Kingdom.
  • The Right Honourable Beverley McLachlin PC – Chief Justice of Canada, appointed on 7 January 2000. She is the longest serving Chief Justice of Canada in history. Her retirement from the bench will be effective on 15 December 2017.

Female representation in Australian courts and the legal profession in general

Australian superior courts have a high proportion of female representation in leadership roles. With three female justices of the HCA, four female chief justices of superior courts, and (until very recently) three female presidents of the courts of appeal (see table below for details), there appears to be a slow but steady change occurring to the make up of the bench. This trend is supported by the most recent available Australian Bureau of Statistics figures (released August 2016), which report that the proportion of female Commonwealth judges and justices is steadily increasing, rising from 24% to 36% over the last ten years. However, these same statistics also reveal that male justices still significantly outnumber female justices:

  • In 2016 there were 56 female and 100 male Commonwealth judges and justices (in the High Court, Federal Court, Family Court and Federal Circuit Court).
  • The gender difference is lowest in the Family Court (54% male, 46% female), while male Federal Court judges and justices outnumber female judges and justices by three to one (75% male, 25% female).
  • The gender difference was similar in state courts: In 2016, there were 133 male and 39 female State Supreme Court/Court of Appeal justices and judges (77% and 23% respectively).

More encouraging is the recent analysis of The Law Society of NSW, which reveals that in 2016, for the first time, the number of female solicitors in nationally has increased to overtake the number of male solicitors (50.1% to 49.9%).

Despite these figures, however, women are under-represented at leadership levels in law firms despite being equally represented at the senior associate level. The data shows that the average female partnership representation sits at 25 per cent; female equity partner representation sits even lower at 18 per cent.  Women are also underrepresented as barristers in Australia. Australian Bar Association statistics show that at June 2015 the number of male barristers nationally was 76.87% compared with 23.13% female barristers. These statistics also note that women make up only 10% of Australian senior counsel. For more information, see Australian Bar Association Statistics 2015.

The Thomson Reuters 2017 survey of its own legal customer base has revealed that more women than men rated their organisation as “poor” or “very poor” for diversity and inclusion (21 per cent compared with 11 per cent), whereas more men than women rated their organisation as “very good” to “excellent” for diversity and inclusion (59 per cent compared with 39 per cent). For survey results, see Thomson Reuters Legal Australia Women in Legal Diversity and Inclusion customer survey results, March 2017.

Gender diversity initiatives at the bar

In an effort to counteract unconscious bias in the briefing of barristers, the Law Council of Australia in June 2016 instituted the Equitable Briefing Policy. This policy is aimed at improving the number of female barristers that are briefed in Australia, by encouraging those who brief or select barristers to use reasonable endeavours to brief or select female barristers who have relevant seniority and expertise, experience or interest in the relevant practice area. This policy intends that by 2020, in accordance with international benchmarks concerning the retention and promotion of women:

  • Women are briefed in at least 30 per cent of all briefs.
  • Women receive at least 30 per cent of the value of all brief fees.

For more information about the policy, see The Law Council of Australia’s National Model Gender Equitable Briefing Policy.

Telstra general counsel for Dispute Resolution, HR and Risk, Sue Laver, said that women “remain under-represented in senior levels within the industry and at the bar. Telstra values diversity and strongly believes that the profession, and society as a whole, benefits from giving men and women equal opportunities. Telstra has been actively leading equitable briefing for many years now and has a strong record in this space. By measuring who we brief and the value of the matters briefed we have focused on a broader pool of barristers, and have actively been encouraging our panel law firms to recommend and brief a more diverse team”.

Other initiatives in the legal profession

Given that the business case for diversity has been proven, Thomson Reuters is focusing on tangible efforts that law firms can make to achieve gender diversity. In May 2017, Thomson Reuters launched a new diversity program called Change Makers in Australia, a global initiative that brings together key business leaders to make commitments and take action to improve the gender balance at the top of organisations. The first Australian event in the Change Makers’ series was held in May 2017. Titled “You Can’t Be What You Can’t See – Transforming Women’s Leadership in the Law”, this event featured insights from two female managing partners, one female partner and one male partner from leading Australian law firms.

The latest Change Makers’ event, “A Client’s Perspective: Gender Diversity & The Path to Success” was held in July 2017. This event explored the perspective of leading corporates (Telstra, Deloitte and Thomson Reuters) on their gender diversity journey. These events, and future Change Makers’ events, have the express purpose of galvanising individuals to make commitments and take action to address the lack of women in senior executive roles and focus on the development of the female talent pipeline.

Jackie Rhodes, Managing Director Legal Australia/New Zealand said at the recent Change Makers event, “Organisations cannot afford to be complacent in the move to achieve gender equality.  In a legal profession heavily dependent on female talent, each organisation’s success in achieving gender diversity will be increasingly vital to their commercial success”.

Women in leadership roles in Australian superior courts (past and current)
Role Name Date of appointment
Chief Justice of the HCA The Honourable Susan Mary Kiefel AC 30 January 2017
Justice of the HCA The Honourable Michelle Marjorie Gordon 9 June 2015
Justice of the HCA The Honourable Virginia Margaret Bell AC 3 February 2009
Chief Justice of Queensland The Honourable Catherine Ena Holmes 11 September 2015
Chief Justice of the Australian Capital Territory The Honourable Helen Gay Murrell 28 October 2013
Chief Justice of the Family Court of Australia The Honourable Diana Bryant AO 5 July 2004
Chief Justice of Victoria The Honourable Marilyn Louise Warren AC 25 November 2003 (retiring October 2017)
President of the New South Wales Court of Appeal The Honourable Margaret Joan Beazley AO 1 March 2013
Former President of the Western Australia Court of Appeal The Honourable Carmel Joy McLure AC QC November 2009, resigned July 2016
President of the Queensland Court of Appeal The Honourable Margaret Anne McMurdo AC 30 July 1998, resigned 24 March 2017

Written by Catherine Roberts, Director and Kate Merrifield, Senior Writer – Corporate, Practical Law Australia

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