At the senior counsel level, the court’s research shows that, a decade and a half ago, just 5.6 per cent of such appearances were by women, and today, it is under 13 per cent, her honour said.

“I must say, I had thought the figures would be better,” Kiefel CJ remarked.

“There always seems to be a substantial representation of women in the courtroom for hearings, or perhaps I just noticed them more. I had perhaps assumed that female representation on the bench and a female chief justice would’ve had a greater impact, but at least the figures appear to be improving.”

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“Whilst these statistics on female silks appearances are quite low, they are largely consistent with the percentage of female silks at the bar, and representation at the bar table cannot improve much more until there are higher numbers of female silks at the bar,” Kiefel CJ said.

There is at least one obvious reason, her honour pointed out, for the numbers of female silks not increasing more significantly.

“Since the 1990s, most state and federal attorneys-general have pursued a policy of appointing women as judges. So far as concerns courts, this often means depending on the appointment process, offering appointment or encouraging a woman to apply for appointment quite soon after a woman takes silk,” Kiefel CJ said.

“This may be good for the courts and society more generally, but the bar and the women in question pay a price.”

“The bar loses female mentors and examples to younger women, lawyers, of senior women appearing in the highest courts and assuming leadership positions at the bar. The female silks who quickly accept appointments may also lose the experience of leading a litigation team and the responsibility of being the principal advisor and decision-maker. Experiences such as this are very important to [one’s] confidence, which is necessary to carry out the office of a judge,” her honour explained.

The Australian Bar Association’s perspective

Reflecting on Kiefel CJ’s recent remarks, ABA president Dr Matt Collins QC said that the statistics cited by her honour demonstrate that structural impediments remain in place as they pertain to the briefing of women in the nation’s highest court.

“Independent referral bars should be places where talented and hard-working barristers succeed irrespective of background, attributes and connections,” he posited.

“Measuring appearances is one means of assessing the extent to which that metric is being achieved.”

There is, Dr Collins mused, no simple answer to this complicated question of how best to improve the number of female silks appearing before HCA.

“Solicitors who brief barristers need to be aware of unconscious bias and entrenched views when making briefing decisions or recommendations to clients about which barristers to brief,” he said.

“They should strive to draw upon the full array of talent available at Australia’s bars when making briefing decisions or recommendations. And they should respectfully engage with clients who express a preconceived preference for a male silk, encouraging instead the briefing of the best barrister for the particular case, irrespective of gender or other personal attributes.”

Lawyers Weekly recently asked the bar associations in every state and territory what they are doing to improve the number of women at senior counsel level in their jurisdictions and what more the broader profession can do to support this.

As of the time of filing this story, the Victorian bar, Northern Territory Bar Association and Tasmanian Bar Association had not responded.

West Australian Bar Association

In conversation with Lawyers Weekly, West Australian Bar Association president Martin Cuerden SC said that it is “almost impossible” not to agree with the comments made by Kiefel CJ.

Many solicitors and clients, Mr Cuerden said, are taking steps to actively promote women at the bar.

“There is a long, long way to go, but the culture is slowly changing,” he said.

At present, he detailed, just 13.6 per cent of silks at the independent bar in Western Australia are women, but this does not include senior counsel who are not members of the West Australian Bar Association and practise in government departments.

Western Australia’s bar has signed up to the Law Council of Australia’s Equitable Briefing Policy and last year adopted a formal grievance procedure to assist in combating discrimination, sexual harassment and workplace bullying at the bar and in connection with barristers’ practices.

However, Mr Cuerden added, “the causes of this run much deeper, and to some extent reflect underlying systemic issues and sexist attitudes which cannot hope to be properly addressed by the adoption (alone) of procedures and policies”.

“There is certainly anecdotal evidence that some solicitors and clients prefer, unconsciously (and, in some cases, consciously) to brief men rather than women at the bar,” he proclaimed.

Formal policies and procedures are important for various reasons, he reflected, but the issue is “fundamentally a systemic one, which cannot be wholly addressed by such means alone”.

“Addressing unconscious (and, of course, conscious) bias against briefing women barristers is necessary. Senior barristers need to ensure that they assist both male and female barristers to develop their talents at the bar, and to provide the opportunity for speaking roles to women barristers,” he advised.

The Bar Association of Queensland

In a statement, the Queensland Bar Association said that it is seeing a “steady decline in gender disparity” among the state’s barristers.

As at the end of the recently concluded financial year, women make up 25 per cent of barristers in Queensland, the association said, with five of the 20 silks appointed since 2018 being women. Twenty per cent of Queen’s counsel appointments have also been women, which is “relatively proportionate” to the overall gender composition at the bar.

“Of note, 123 female barristers are presently eligible to apply for appointment as Queen’s counsel, with applications currently open for submission.

“It is pleasing to see that, of the 108 barristers issued their first practising certificate between 1 July 2020 and 30 June 2022, forty per cent are women and 60 per cent are men, indicating the gender equality gap is steadily decreasing,” the association noted.

It said it has also adopted the Law Council of Australia’s Gender Briefing Policy and is committed to continual efforts to close the gender equality gap.

NSW Bar Association

In the nation’s most populous state — both in terms of citizens and legal professionals — there has also been a “steady decline” in the gap between men and women at the bar and serving as silks.

As the NSW Bar Association noted, the male to female ratio of silks in 1993 (when it took over senior counsel appointments) was 99.5:1.

Now — with the association’s senior counsel selection committee reviewing applications, with extensive peer review, there has been a “considerable improvement” in gender balance, with the ratio now at 6:1.

Year on year, NSW has seen incremental improvement in the number of women barristers and silks. In 2021, women made up 24.5 per cent of barristers in the state and nearly 14 per cent of silks.

The association did note that of the 89 women senior counsel appointed since 1993, thirty-two accepted judicial appointments — “although a few have since returned to private practice”.

The NSW Bar Association said that it conducts annual surveys of barristers, and from time to time, asks which courts and tribunals they appear before and whether they have had a speaking role.

“Our data broadly supports the views expressed in her honour’s speech,” it said.

Bar president Gabrielle Bashir SC also noted that, last year, seven out of 20 senior counsel appointments in the state were women.

“It is crucial that we increase the number of women who come to the bar and who remain in order to gain the experience and confidence to apply for silk,” she stressed.

“The importance of equitable briefing cannot be overlooked.”

South Australian Bar Association

In a letter to Lawyers Weekly, South Australian Bar Association president Marie Shaw QC and Women at the Bar Committee chair Michelle Barnes said that, at present, 18 per cent of practising silks in the state are female.

In line with Kiefel CJ’s observations, the pair said that the South Australian bar “has seen a number of its female silks appointed to the bench in recent years, which is indeed a benefit for the courts but, as a small jurisdiction, is a loss for the bar and those members of the junior bar who would be mentored by those senior women”.

The Women at the Bar Committee, the pair said, offers active mentoring of female solicitors and junior barristers to provide pathways and support, while the SABA has adopted “clear policies and ongoing education” to eliminate bullying, discrimination and harassment.

“In SABA’s view, it is important in attracting and retaining women to the profession, both locally and nationally,” Ms Shaw and Ms Barnes submitted.

The state has seen a “significant increase” in women commencing at the bar in recent years, they said, with this year’s Bar Reader’s Course made up of over 50 per cent female participants.

They urged broader adoption of the LCA’s Equitable Briefing Policy, noting that the “continued promotion of equitable briefing by law firms and government agencies remains an important driver of opportunity for female advocates, with visibility and opportunity the best way to achieve future senior appointments”.

Elsewhere, SABA has a “Step Up to the Bar” program, implemented by the state’s supreme court, which encourages female solicitors to join the bar by providing increased exposure to litigation and advocacy skills ahead of the move.

It also worked with the superior courts in relation to the court’s issuing a notice to the profession re junior counsel in March 2022, advocating for the active participation of junior counsel in the presentation of argument before the superior courts. 

“This is anticipated to have a positive impact for female junior counsel, and facilitate a greater demonstration of their skills and ultimately, it is hoped, increased appointment of female silks,” Ms Shaw and Ms Barnes posited.

ACT Bar Association

Elsewhere, the association representing the nation’s capital listed the pursuit of a “larger, more inclusive bar” as one of its three strategic objectives for 2022–26.

The ACT Bar Association’s recently-published, inaugural Canberra Counsel Uncovered document profiles 13 female counsel at the private bar in the territory. In the publication’s welcome, Kate Eastman SC wrote: “It is very pleasing to see the number of women barristers in the ACT increasing. The profession as a whole has a responsibility to promote equitable practices, including by promoting inclusive briefing practices to address the gender imbalance at the private bar.”

In his president’s message in the publication, Andrew Muller wrote that the association has been “working tirelessly to promote women joining the Bar in the ACT”.

“The number of female barristers in the territory has increased in the last five years to 25 in total, of which 13 are at the private bar, and 12 hold a government practising certificate. The increase in female members is all the more impressive when I reflect on the fact that five female barristers have been elevated to the bench or the ACT Civil and Administrative Tribunal since 2017,” he outlined.

“The ACT Bar Association has played its part in achieving a positive shift in the gender balance, although there is always more that can be done.”

The bar’s initiatives in recent times have included, he detailed, the yearly scholarship for Women at the Bar; the annual event during Law Week designed to attract interested female candidates; the provision of financial assistance to eligible female barristers in their first year of practice; and assistance to new members in finding suitable chambers.

The Bar Council is committed, Mr Muller went on, to ensuring that women in the law are “provided with every encouragement to assess and understand the opportunities that a career at the bar may present, and that those who elect to pursue a career are given our full support to best achieve their goals”.

ABA’s own actions

The national body for barristers, Dr Collins explained, does not have the same direct, day-to-day relationship with individual barristers as the constituent body associations. With this caveat in mind, he noted that ABA supports the many initiatives that have been undertaken by those state and territory bodies, noting they can and should adopt the LCA’s Equitable Briefing Policy and conduct unconscious bias training.

Moreover, he went on, the ABA will shortly launch a national database of Australia’s barristers, establishing for the first time a “one-stop shop” that will enable solicitors and clients to search for the best barristers in particular practice areas, irrespective of location or personal attributes, and will also enable targeted searches to identify, for example, women and First Nations barristers of differing seniorities and with expertise in particular practice areas.

Other reflections

Mr Cuerden noted that his comments were not suggestive that the disparity in numbers between men and women at the bar, especially at senior counsel level, was attributable to any overt bias in appointment processes.

On the contrary, he mused, his experience has been that the state’s Chief Justice Peter Quinlan is “acutely aware” of the need to ensure that women barristers are treated fairly and equally in the process of being appointed.

“The causes are likely to be more systemic,” he said.

However, he added, the numbers they stand “can’t be ignored”.