This is particularly extreme at the Bar. Fairfax reported that the average male barrister declares a taxable annual income of $168,766 and the average female barrister just $59,436. Adjusting for the fact that male barristers work on average 44 hours a week, compared to 37 hours for female barristers, the pay gap shrinks to 141 per cent, the most significant pay gap of any other occupation in Australia. You also need to question what these hours actually reflect - do women work fewer hours because they want to or because they aren’t given the same amount of work as men?
Everyone has their own theory why the pay gap persists: men assumed to be better advocates, entrenched and biased briefing practices, women preferring less lucrative practice areas, outdated assumptions about female barristers’ priorities, female choice, women feeling they need more prep time, women’s difficulty accepting last minute briefs because of child care inflexibility.
Wouldn’t it be fascinating to do a doco half This Life, half Life at 7? It could follow a group of new barristers throughout the Readers’ Course, their choice of mentor, chambers and clerk, who takes them for lunch at the Essoign, who invites them for drinks at the Mint with solicitors, how they react to judicial criticism, how many briefs they feel comfortable holding at once, what briefs they take on and what briefs they refuse, how peers respond to their success, conversations with their partners should they decide to have a child. When would the earning differential start? Would they realise it? Would they feel this was the fair consequence of their individual choices? Would they feel empowered to change it?
But even if we could identify the causes of the pay gap, how do we go about changing it?
Hats off to the Victorian Government for appointing more women to judicial and public office. Last year, the Premier committed to ensuring at least half of all Victorian judges, magistrates and major public board members will be women. And in the last 15 months, we’ve seen an unprecedented number of top women appointed in Victoria – Jane Dixon QC and Mary-Jane Ierodiaconou to the Supreme Court, Andrea Tsalamandris, Sarah Hinchey, Amanda Chambers, My Anh Tran and Sharon Burchell to the County Court, Megan Aumair, Meagan Keogh and Carolene Gwynn to the Magistrates Court, Melinda Richards SC as Crown Counsel, plus Jennifer Kanis as Director of Victoria Legal Aid and Moana Weir to the Victorian Equal Opportunity and Human Rights Commission.
This is huge. In all organisations, the best way to maximise capacity for great ideas is to prioritise merit-based appointments, which leads to diversity and equity. But it is particularly important when talking about those institutions that represent the public. The people who head up these institutions need to reflect the balance of society if they are to have true moral authority, given that they make decisions that affect and need to be respected by everyone. It also shows society that women can do really senior legal jobs and it shows junior women that they too can one day hold high office.
But starting at the top does not fix the inequality that we see in the pay gap. It does not address the pathway to those top jobs as it does not change barristers’ everyday working lives and career development. To make things fairer faster, we need to work on changing perceptions and realities at all points along a barrister’s career path.
Again, the State Government is doing great things. The Attorney-General is requiring private firms contracted by the State Government to report regularly on their briefing of female barristers, comply with the Victorian Bar’s Equal Opportunity Briefing Policy, and report on their equal opportunity arrangements in the workplace. The Women Barristers Briefing Report 2009/10 – 2014/15 female barristers received around 25 per cent of these fees paid to barristers by the State Government so we are excited to see how this changes in light of the above initiatives.
The Law Council’s equitable briefing policy is another step. It sets a voluntary target of women barristers being briefed in at least 30% of matters and paid 30% of all brief fees by 2020. Underpinning it is the idea that barristers should be chosen on the basis of merit and without bias, or as Fiona McLeod SC was quoted as saying in the Age recently that the Law Council’s policy involves ‘encouraging participants to seek out women barristers appropriate for the relevant matter’.
But maybe the answer lies in helping solicitors make better choices about who they brief? We asked Michael Symons, barrister and founder of Legal Economy, whether the Legal Economy platform, which will allow solicitors to directly compare and then engage barristers, could help in this respect.
‘I hope so. We need to find ways to make sure that solicitors are briefing women and that they are doing so in the knowledge that they are briefing the right barrister for the job. This isn’t a weak statement about equality of opportunity - we need to find ways to achieve substantive equality for men and women through an unbiased marketplace for legal services.
This is the only way to make sure that men and women at the bar are getting much the same work, pay, and time in court. And that’s the only way to ensure that men and women can be certain of enjoying similar career progression and similar pay.’
The greatest power lies with individual solicitors. They choose who to brief. They can’t decide who the next Magistrate or Supreme Court judge will be, but they can educate clients about the merits of the available barristers and encourage them to select the right barrister for the job. So solicitors, be the change that you want to see in the law, and let’s hope that it’s not long until we can consign this ‘pay gap’ conversation to irrelevance.