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Spring 2003 cover

National Observer Home > No. 58 - Spring 2003 > Legal Notes

Female Barristers and Their Feminist Supporters

Recent differences between Mr. Daryl Williams (the then Attorney-General) and Senator Helen Coonan (the Assistant Treasurer) raise questions whether Senator Coonan can be regarded as balanced in regard to women barristers and feminist issues.

The differences arose through unfortunate comments by Mr. John Rush Q.C., the then Chairman of the Victorian Bar Council, suggesting that women barristers were not being adequately briefed. Mr. Rush had become to some extent a proponent of political correctness, and it would have been better if he had considered more carefully the reasons why some women barristers are not sought after.

Although there are exceptions, the great majority of successful barristers are assertive and aggressive, as is often necessitated by their duties, and for this reason are more likely to win for their clients than those who are less assertive. For temperamental reasons most female barristers are relatively low in assertiveness and aggression. Often they are more "feminine" and restrained (and of course they should not be criticised for this). However solicitors have a duty to select barristers who are most likely to obtain a favourable result for their client. Solicitors are indeed astute in this regard. In the minority of cases where female barristers may be more successful than men, the female solicitors are briefed. (Indeed, already female barristers receive preferential treatment from feminist solicitors and by some government departments which under feminist pressure have introduced "affirmative action".1) However, where, as is often the case, female barristers are less able, they are not briefed. This is entirely appropriate.

The process of preferring a special class of barristers - whether they be women, homosexuals, Moslems, Jews or any other group - is to be deplored because it involves sacrificing the interests of clients in favour of ideology and special interests. Thus it is highly probable that a client who is induced to accept a female barrister will be at a disadvantage as against those who can select a barrister freely, based on that barrister's ability.

Senator Helen Coonan

Senator Coonan, the Assistant Treasurer, appears to display undue feminist tendencies. In a recent address to the Women Lawyers Association of New South Wales Senator Coonan was reported as saying,

"Undoubtedly firms undertaking government or agency work could be required, as a condition of getting this work, to abide by an equal opportunity briefing policy.

Nothing induces behavioural change like incentive.

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."

It was reported that Senator Coonan "favours a system that requires law firms to agree to equal opportunity briefing principles and to report to government on how they allocate legal work". But Senator Coonan's comments were disingenuous in so far as they referred to "an equal opportunity briefing policy". In fact, current pressures (both ethical and commercial) upon solicitors to brief barristers who are most likely to achieve success for their clients are non-discriminatory except in regard to ability. And indeed, discrimination in favour of the less able would be an undesirable and dangerous route.

What Senator Helen Coonan was in fact advocating was, not the freedom to select counsel by ability, but a system that would skew selection in favour of female barristers of lesser ability. Thus the feminist proponents of her views would assert that "equal opportunity" requires that female barrister should obtain per capita the same proportion of briefs as male barristers, regardless of ability.

In the long term Senator Helen Coonan’s partisan feminist agenda would not be sustainable. If a particular government department selected - under pressure from her - less able barristers to defend that department’s policies, that department would be less successful in court proceedings than would otherwise be the case. Sooner or later that position would be recognised and remedied in due course.

Consequences of Affirmative Discrimination

For these reasons opponents of "big-government" might, for completely different reasons, welcome Senator Helen Coonan's discrimination in favour of female barristers. This discrimination would lead to the Government's loss of cases in which it would otherwise have been successful. Senator Coonan's discrimination would thus be welcomed by taxpayers who would be more likely to succeed against the Government. Conversely it would also be welcomed by aboriginal groups and "refugees" advocacy groups since those groups also would be more likely to succeed against the Government. Therefore sooner or later balanced analysis would reject Senator Coonan's agenda - and that of her feminist allies at the Bar - and restore a system of briefing that is based solely on ability. No other system is fair to clients, or indeed to barristers themselves.

One of the reasons why feminists (in the law and elsewhere) have had some successes in advancing women otherwise than on the basis of competency has been a lack of fortitude in those they pressure. There is a regrettable tendency for men in particular not to oppose unreasonable feminist demands, but to take the easy course of giving way. It is high time that both in the law and elsewhere those in positions of authority should proceed according to principle and not give way to special interest groups with self-promoting objectives.

The word "feminazis" has sometimes been used to describe feminists who apply sustained pressure to use the legal system, including the criminal law, to punish those who do not provide "affirmative action" in favour of women. For reasons set out here, these extreme feminists should be systematically opposed.

I. C. F. Spry

1. Indeed, a widely held view in the legal profession is that some of the female barristers who have been made Queen's Counsel or Senior Counsel have received this benefit as a matter of affirmative discrimination, because they are women, and not by reference to their abilities. Likewise there is a widely held view that some female barristers obtain briefs by relying on their attractiveness.

Further, women barristers are commonly less committed to their work than male barristers, in view of family and social commitments and attitudes.

National Observer No. 58 - Spring 2003