In a statement accompanying the findings, the LCA welcomed the success of the policy in achieving briefing rates targets and driving change but added that it is “concerned by the continuing gender pay gap” faced by women barristers.

The report’s release comes two weeks before the Workplace Gender Equality Agency’s annual report about gender pay gaps in Australian businesses, including law firms. To see last year’s results for Australian firms with 100 or more employees, click here.

Encouraging signs

The report found that, in the 2023–24 financial year, women received 31 per cent of the 35,041 briefs reported by briefing entities, matching the share of briefs received in the last financial year.

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This marks the third consecutive year that the policy’s target for briefing women barristers has been met and is a stark increase on the 20 per cent of briefs that were going to women in the 2016–17 financial year.

Broken down by seniority, senior women barristers received 22 per cent of briefs (1 per cent up from last year and 10 per cent up since the beginning of the policy), and junior women barristers received 40 per cent of briefs (1 per cent down from last year, but 12 per cent up since the policy started).

Other encouraging findings included: barristers reported being briefed with women barristers 44 per cent of the time (an increase of 2 per cent over the previous year) and that women barristers were being recommended by another barrister 59 per cent of the time.

Speaking about the report, LCA president Juliana Warner (pictured) said there are some “very positive takeaways”.

“I commend the adoptees of the policy for the impact they are having on optimising opportunities for all barristers. We can see that these efforts are making a real difference,” she said.

Shortcomings on fees

However, Warner continued, “despite the progress that has been made since the policy’s inception, there is still more to be done – especially when it comes to overall briefing fee value”.

The report detailed that $1,803,529780.25 in fees were paid to barristers in FY24 by reporting briefing entities, with just under $389,000 of those fees being received by women barristers – accounting for 22 per cent.

Warner noted that this is “well below” the target of 30 per cent. However, it does amount to a 2 per cent increase on last year’s figures and a 7 per cent increase from the beginning of the policy, at which time the percentage of fees that briefing entities paid to women barristers was a mere 15 per cent.

As the LCA identified, this is indicative of a “persistent” gender pay gap issue.

Not only, the report said, did most fees go to men at the Bar, but the percentage of brief fees paid to male barristers (78 per cent) was greater than the percentage of briefs they received (69 per cent).

There are limitations with the data collected for the report under the policy, the LCA conceded, such as fees paid to seniors and juniors, and the types or calibre of matters. This, it said, is something it intends to keep exploring as part of its second review of the policy.

“Progress has been made since the introduction of the policy in 2016, but the pay gap remains too wide,” Warner said.

“While the report explores possible reasons for the gap, and a number of entities reported paying more than the target of 30 per cent of all brief fees to women barristers, this remains a significant concern.”

Reasons

The report also showcased commentary from briefing entities, which shed some light on the success or otherwise of the profession in ensuring the targets can be met, as well as whether the policy is fit for purpose in fostering holistic equality profession-wide.

There were, for example, challenges faced in being able to effectively implement the policy, including the limited availability of women barristers. One entity said: “There were many instances where we tried to brief female counsel; however, they were unavailable. Our research to identify women in the areas in which we operate showed that there was a much lower percentage of women available compared to the targets that are set.”

Meaningful tracking of matters recommended also presents a hurdle, with one barrister commenting: “As in previous years, I have not kept records of numbers of men and women recommended because recommendations are so hard to keep track of (frequently being made over the telephone or in, in-person conversations.”

And, of course, there remains the issue of having clients express a preference for male barristers. One entity reported: “On occasion, clients (such as liquidators) will specify which counsel they wish us to brief. This is always (read: always) a male barrister.”

“The large majority of the fees attributed to male barristers is a result of a client-led decision to brief the male barrister based on a client’s previous relationship with them,” the entity said.

Moving forward

The report suggested there are positive signs of greater gender inclusivity at the Australian Bar, given that barristers have continued to report that they have worked, or appeared with, women barristers at rates exceeding the 30 per cent target.

“Further, more junior women barristers are being briefed, giving them the opportunity to gain exposure and experience to develop their career at the Australian Bar,” the report said.

Looking ahead, Warner mused that while the findings around the value of briefs are “disappointing”, without the Equitable Briefing Policy, the legal profession would not have access to this data.

“The information and insight provided through the annual reports provides us a time series through which we can see where improvements are being made and where focus is still required,” she said.

A review of the Equitable Briefing Policy is currently underway, she pointed out, to ensure that it is appropriate and adapted to achieve its purpose.

“I thank the Law Council’s equal opportunity committee for its ongoing efforts regarding the Equitable Briefing Policy and our broader diversity work.”