Editors --- "Equality Before the Law (ALRC 67 and 69)" [2003] ALRCRefJl 23; (2003) 83 Australian Law Reform Commission Reform Journal 37

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Reform Issue 83 Spring 2003

This article appeared on pages 37 – 39 of the original journal.

Equality before the law (ALRC 67 and 69)

By Jonathan Dobinson*

In 1994, the ALRC completed its inquiry into equality before the law for women with the release of the report Equality before the law: Women’s equality (ALRC 69 Part II). The ALRC report identified a number of issues that hinder women’s equality before the law, including the extent of women’s participation in the legal profession. This is a summary of the report and its implementation to date.

The inquiry commenced in February 1993 as part of the then federal government’s New National Agenda for Women. The inquiry conducted extensive consultations, receiving more than 600 submissions—including hearing submissions in person in every State and mainland Territory and Norfolk Island. The key issues identified for consideration were women’s access to justice; women’s legal rights in family life and relationships; legal rights to social security; the position of women in employment and in the unpaid workforce; and media portrayals of women.

A number of major recommendations came out of the inquiry, including: the passage of an Equality Act; establishing national standards for the administration of justice that enshrine the principle of equality; and the establishment of a National Women’s Justice program to coordinate reforms necessary to ensure women’s equality before the law. Of particular relevance to this issue of Reform was the ALRC’s finding that, for gender bias in the law to be corrected and lawyers to become more responsive to women’s needs, there must be training for the legal profession to understand issues relating to women.

The ALRC found that legal education has a critical role in helping future lawyers detect and eradicate gender bias from the common law and statutes. Therefore, a number of the ALRC’s final recommendations were aimed at tertiary legal education. These recommendations had two components: the introduction of feminist legal theory as a subject in the law curriculum and the integration of the experiences of women into the content of courses.

After the completion of an undergraduate law degree, a graduate generally is required to undertake practical legal training or articles to be eligible for admission to legal practice in Australia. The ALRC identified a number of strategies that could be implemented at this stage of legal education to assist in combating gender bias in the law, including that: all practical legal training should be required to include content on the experiences and perspectives of women; and (in practical legal training courses using simulated training) hypothetical cases and trials should avoid the use of gender specific language and avoid stereotyping the roles of women and men. Parallel recommendations focussed on continuing legal education¹ and specialist accreditation.²

In 1994, women made up 50 per cent of law school graduates, and 25 per cent of the legal profession as a whole. However, the ALRC found that women leave the profession at a much higher rate than men and are clustered in its lower ranks. The ALRC report examined the reasons for the situation of women lawyers, including discrimination, sexual harassment, and structural and cultural barriers. The ALRC noted that equality for women cannot be achieved using anti-discrimination and affirmative action legislation alone. Submissions received by the inquiry called for professional associations to become more actively involved in changing the work practices and culture of the profession. The ALRC recommended that professional associations should:

• play an educative role on the obligations of legal firms under the federal Sex Discrimination Act;

• collect information on and monitor the career patterns and experiences of women lawyers;

• encourage increased compliance with affirmative action obligations;

• promote women’s full and equal participation in their governing bodies, councils and committees;

• develop codes of conduct dealing with sex discrimination, including sexual harassment, in consultation with the federal Sex Discrimination Commissioner;

• develop model equal employment policies and promote their benefits to the profession;

• provide employers with appropriate interviewing guidelines; and

• establish complaint mechanisms—for example, through the appointment of equal opportunity officers or senior counsellors.

Submissions received by the ALRC inquiry commented on the relative absence of women in the legal system. Women felt excluded by the all-male environment of the law, especially in the judiciary. The ALRC’s research at the time found that men held over 90 per cent of all federal judicial offices.

The ALRC noted that more women judges are needed to increase public confidence in the judiciary—the community cannot be expected to respect a judiciary that is drawn from a narrow sector of society and does not represent the diversity of the community. Further, there is also the potential of women judges to bring different perspectives, experiences and methods to their work. Women judges may be able to help eliminate gender bias in the law by using their understanding of women’s experiences in their decision making.

The ALRC recommended that a body should be established to advise the Attorney-General on suitable candidates for judicial office. The ALRC stated that the advantages of this model would be the independence from the political process; the provision of a forum for increased consultation with the community; and the identification of candidates who may not otherwise have been considered—promoting a judiciary more reflective of the diversity of Australian society. The ALRC stated that membership of the advisory commission should reflect the ethnic and cultural makeup of the community, with a balance of women and men.

The ALRC also recommended that selection criteria for judicial appointment should be identified and publicised; and that federal judges should be able to be appointed on either a full-time or part-time basis—to enable women and men to take proper account of their family responsibilities.

Although many of the recommendations made by the ALRC were accepted by the then federal government and have been implemented, men continue to dominate the legal services industry—especially in the upper reaches of the profession and the judiciary.³ The report’s findings were recently echoed in a paper published by the NSW Law Society:

The [legal] profession is failing to recognise that there are flaws in the profession that mitigate against women securing senior positions within it. Further, the profession also needs to recognise that it is incumbent on the profession to identify and fix the flaws or risk losing a significant segment of their profession. As the professional association, the Law Society has a leadership role to assume to assist the profession to work through these complex issues to ensure substantive and sustainable change.⁴

* Jonathan Dobinson in the ALRC’s Manager, Policy and Secretariat.

Endnotes

1. CLE is offered to practitioners in all jurisdictions. It is education undertaken after admission to practice and not part of a degree. Some Australian jurisdictions require practitioners to undertake a number of hours of CLE annually in order to maintain a current practising certificate.

2. Accreditation is a procedure by which a legal practitioner, with expertise in a particular field, may apply to the professional association to become formally recognised as a specialist in that area.

3. At the end of June 1999, 73.3 per cent of all legal practitioners were male. This is despite the fact that approximately equal numbers of males and females graduate from law school. The gender division is particularly pronounced in specific parts of the legal profession. For example, 84.1 per cent of all solicitors who were sole practitioners or partners were male and 89.3 per cent of all barristers were male: Law Council of Australia 2010 A Discussion Paper: Challenges for the Legal Profession, September 2001. See also Fergus Shiel “Old boys’ bar code doesn’t scan well on gender equality’ The Age 22 August 2003, 1; Kate Marshall ‘Highest Courts Still Lack Women’ The Australian Financial Review, 31 May 2002; George Williams ‘Diversity and Australia’s highest court’ The Australian Financial Review, 22 August 2003.

4. Law Society of New South Wales, After Ada: A New Precedent for Women in the Law, 29 October 2002, 19.