Adopting the policy

What are some reasons to adopt it?

Some reasons for adopting the Policy include:

• a) Assist in maximising choices for legal practitioners and their clients in their choice of barrister;
• b) Be involved in the promotion of the full use of the independent bar and optimise opportunities for practice development of all barristers;
• c) Take steps that involve minimising unconscious bias;
• d) Increasingly law firms and government agencies are adopting the Policy and it is likely they may be seeking barristers who have adopted the Policy;
• e) Increasingly clients, law firms and government agencies are required to report on the status of gender equality in their workplaces. This includes strategies and policies used to promote equality. By adopting the Policy barristers can assist their clients and law firms in meeting their gender equality requirements; [1] and
• f) Take steps that lead to diversity in representation, which in turn promotes better decision making. [2]

I am a junior barrister, should I adopt the Policy?

The New South Wales Bar Association encourages all barristers, whether junior or senior, to adopt the Policy. While junior barristers may well be less likely to be asked for a recommendation compared with their senior colleagues, they are nevertheless likely to be asked for a recommendation from time to time. It is important that data is collected on recommendations made at all levels of experience to measure the retention rates and ascertain any reasons for gender disparity. Furthermore, with the increasing spotlight on gender equality in the legal profession overall, it is likely that law firms, clients and government agencies may only wish to brief barristers who have themselves adopted the Policy.

How do I adopt the Policy?

You can adopt the Policy by registering yourself via email to  ebpolicyreport@nswbar.asn.au.

How will people know I have adopted the Policy?

The public will know you have adopted the Policy as the Law Council publishes the names of those who have adopted the Policy on its webpage. You may find your name and others who have adopted the Policy  here. You may also wish to note that you have adopted the Policy on your email signature so that briefing entities will know you have adopted the Policy. You can also publicise your adoption of the Policy on your profile on your floor website, Linkedin, your CV and Find a Barrister. The NSW Bar Association intends on working with relevant stakeholders to allow members of the public to search for barristers who have adopted the Policy on the NSW Bar Association’s ‘Find a Barrister’ function.

I have adopted the Policy, what do I need to do now?

The Policy sets out reporting requirements for briefing entities and barristers who adopt the Policy. For barristers who have adopted the Policy it encourages all recommendations made of other barristers to include at least one woman, unless there is no qualified woman.

In addition, barristers practising in NSW should provide a confidential annual report to the NSW Bar Association by 30 September each year. A barrister’s report should address the following information, by reference to gender:

• a) the number of barristers briefed as their junior or as their leader during the year;
• b) the number of barristers who were briefed as junior barristers as a result of a recommendation by senior barristers (if known);
• c) the number of barristers who were briefed as senior barristers as a result of a recommendation by junior barristers (if known); and
• d) the number of barristers recommended to briefing entities in new matters.

Barristers’ clerks should work with barristers who adopt the Policy to develop practices and protocols to assist with their reporting obligations. The Policy defines a barrister as a member of any independent State or Territory Bar. A senior barrister under the Policy is a barrister of 10 or more years standing at the independent bar or who is Queen’s Counsel or Senior Counsel, and a junior barrister means all other barristers.

I am a Clerk, how can I help the barristers on my Floor comply with the Policy, once they have adopted it?

While Clerks are not expressly required to adopt the Policy, clerks can work with barristers who adopt the Policy to develop practices and protocols to assist with their reporting obligations. Clerks may assist barristers fulfil their obligations by ensuring all recommendations they make to solicitors or any other briefing entities include at least one woman with relevant seniority and expertise, experience or interest in the relevant practice area. Similarly, if a barrister is looking for another barrister to assist in a matter and consults a Clerk for that purpose, the Clerk can assist by ensuring that at least one woman barrister with relevant seniority and expertise, experience or interest in the relevant practice area is included in any recommendation made.

[1] Legislative requirements under the Workplace Gender Equality Act 2012. See https://www.wgea.gov.au/.

[2] Please see Hunter, R ‘More than Just a Different Face? Judicial Diversity and Decision-making’ Current Legal Problems, Vol. 68, (2015) pp119 – 141; Lynch, A ‘Diversity among judges is matter of legitimacy and equality, but also a help in decision-making’ The Australian, 19 December 2014 and McKinsey & Company, ‘Why diversity matters’ January 2015 (available at: http://www.mckinsey.com/business-functions/organization/our-insights/why-diversity-matters).