The path to gender equality requires removing cultural & structural barriers in the profession By Justice Sam Doyle

JUSTICE SAM DOYLE

Having earlier completed a Commerce degree, I completed my Honours degree in Law at the University of Adelaide in 1995. I spent a year working as an Associate to the Honourable Justice Lander of the Supreme Court, and a year undertaking post-graduate study at Oxford University. I commenced full-time work as a commercial litigation solicitor at Fisher Jeffries in 1997.

I worked for five years as a commercial litigation solicitor, before joining Jeffcott Chambers and the Independent Bar in 2002. I worked as a barrister for about 14 years, taking silk in 2012. In December 2015 I became a Judge of the Supreme Court. I have spent the last five years in that role, hearing a range of civil and criminal matters of an interlocutory, trial and appellate nature. From 2021 I will be sitting on exclusively appellate matters as a member of the newly formed Court of Appeal.

On a personal front, I am married with four youngish daughters (a 15-yearold, an 11-year-old, and twins who are eight-years-old). My wife, Susannah, is also a lawyer. She has worked in various roles in both civil and criminal practice, including at a couple of firms, the DPP and most recently in a government department. Despite us having the financial capacity to pay for some childcare assistance, and significant help from our parents, Susannah has been prepared to spend significant periods out of the workforce, or in part-time employment, while our children have been growing up, with the obvious implications for her own career.

I realise there is a risk of over generalising when speaking about matters of gender and culture in the legal profession. What follows are no more than some comments based upon my experiences and observations. I am also conscious of the limited perspective I can provide – particularly given that I am a male who comes from a family of lawyers, who has had the benefit of a very supportive spouse and extended family, and who has had a very fortunate career thus far. However, I hope some of my comments are nevertheless of some interest.

THE CULTURE OF LEGAL PRACTICE AND THE IMPLICATIONS FOR GENDER EQUALITY

Speaking generally, and with a focus upon my experience as a solicitor, barrister and judge working in those areas of the legal profession focussed upon litigation, there is no doubt that the legal profession is a hard-working, competitive and stressful environment. In part this is a function of the complex and demanding society in which we live. But in part it is also a function of the adversarial and hierarchical nature of the legal profession, and the sorts of personalities it attracts.

It seems to me that some of these cultural features of the legal profession are particularly evident amongst those practising at the Bar. Perhaps it is because barristers spend such a large proportion of their time engaged in the adversarial aspects of legal practice. But I think there are also some structural considerations that contribute. While barristers generally practise from chambers, they are selfemployed and largely independent. This seems to me to allow, if not encourage, certain personality traits to flourish in a way that might not be permitted to occur in the more controlled and accountable environments of a law firm or within government.

I do not think it takes a dominant, aggressive or arrogant personality to succeed at the Bar. Indeed, not only can one succeed without any of these personality traits, they are usually more of a curse than a blessing. It is often the calm, careful and considered personalities who thrive at the Bar. But there persists a perception of practice at the Bar that perhaps attracts a disproportionate number of people with such tendencies, and perhaps deters those who do not wish to work with people with such tendencies.

But even putting these undesirable personality traits to one side, I do accept that practice at the Bar attracts, and generally requires, people who are dedicated and hardworking. Further, it can be a fine line between being very dedicated and hardworking, and becoming obsessed and losing perspective and balance in one’s life. The latter is probably an inevitability at least during some periods, such as during the course of a trial, or

in the period leading up to a significant hearing or deadline. In the era of 24/7 communications, and pressure for almost immediate responses and availability, even the most organised of barristers are regularly subjected to significant, and at times oppressive, demands and pressures in their work life.

The implications of these demands and pressures are obvious. They are virtually incompatible with part-time work, and make it very difficult to maintain stability and control – let alone enjoyment – in one’s personal life. That is particularly so in a family setting, in the absence of a very supportive spouse or partner who is prepared to make sacrifices in their own career in order to provide that stability and control.

Unfortunately, these realities of life at the Bar have generally impacted women disproportionately. Historically, it has been the case that relatively more men have been in a position to, and prepared to, subject themselves to these work demands and pressures. In some respects this reflects poorly on those who choose this path and simply expect others in their life to accept the implications of their path; and in some respects it reflects well on those who choose a path that is more conducive to family life and more likely to bring them personal fulfilment. But looking at it in this way is to sugar coat the unsatisfactory reality that often this is not a matter of ‘choice’ in any real sense. Many people (disproportionately women) are discouraged or prevented from pursuing, or pursuing as fully as they would like, the career path of their choice by reason of some of the structural and cultural barriers to a successful career in the law.

Even more unfortunately, there are no easy or immediate answers to this dilemma. But I do think that there are some steps that can be taken.

A significant step would be to encourage lawyers to set boundaries around their time spent working. This involves encouraging individuals to identify, declare and observe such boundaries; and correspondingly ensuring that the profession more generally respects and encourages those boundaries.

The applicable boundaries will depend on the individual. For me, the significant boundaries to which I tried to adhere included no work from Friday evening through to Sunday morning; trying to ensure that my court hearings did not commence before 9.15am so that I was available to take the children to school in the mornings; being home by 6.30pm in the evenings (even though it meant working late at night from home), so that I could be present for, and help with, dinner and the children’s evening and bedtime routines; and making sure I took at least a week off during each of the school holiday periods.

The point is not so much how the boundaries are defined, but to ensure they are encouraged and respected. This requires that members of the profession – both colleagues and the courts – create a culture in which lawyers feel comfortable explaining, and seeking accommodation for, their boundaries; a culture in which lawyers feel comfortable requesting that the timing of a meeting or ‘deadline’ be adjusted, or that a court hearing commence later, finish earlier or take place on a different day.

Such requests may not always be able to be accommodated, given the impact they sometimes have on clients, other lawyers, the courts and the cost of litigation. But it is important that lawyers feel comfortable making a request, because often they can be accommodated with little or no inconvenience to others. Importantly, this is an area in which men can assist to change the culture of the legal profession – and, indeed, do so to the benefit of their own families and personal happiness and mental health – by taking the lead in requesting accommodation in order to meet family or other personal commitments, and thereby begin to normalise such requests. While I cannot speak for all judges, I understand that most of my colleagues understand

the need for such accommodation where possible, and would look favourably upon appropriate requests.

The importance of diversity at the Bar and on the Bench is obvious. It is important as an end in itself, and indeed as part of the progression towards that end. The legal process, and in particular legal decision making, can only benefi t from involving a greater range of people and perspectives. In striving for outcomes that will be respected and approved by the community, the legal system benefi ts from having its processes carried out by people more refl ective of the community.

At the same time, there is a balance to be struck. In order to maintain the quality and status of the legal system, the primary criterion for progression and promotion must be merit. Unfortunately, adherence to this criterion against a background of the cultural and structural barriers to which I have referred, has made for painfully slow progress in terms of gender diversity and equality within the legal profession. For a number of years there have been at least equal female representation in graduates from law schools, and in relatively junior roles within legal fi rms. But the same progress has not been seen as uniformly in more senior roles within the legal profession, and in particular at the Bar. This suggests that some of the cultural and structural barriers that exist within the profession have been continuing to stall the progress of women in this respect.

While some progress has been made in addressing the diffi culties confronting women, the slow progress to date suggests that more needs to be done. I do not think the answer lies in promotion simply on the grounds of gender. To the contrary, I think that such an approach would risk undermining the progress that is otherwise being made. Rather, it lies in continuing to try and identify and address the cultural and structural barriers that exist within the legal profession, and particularly at the Bar.

I am sure that more could be done in this regard to ensure that women are given fair opportunities for progression and promotion within the legal profession. The more active implementation and enforcement of equitable briefi ng policies would be an important example. The Supreme Court has a “Step up to the Bar”program which aims to assist women to transition to the Bar. But more active mentoring of female junior barristers by senior members of the Bar could potentially provide similar assistance to a larger number of women. I understand that some Chambers have been exploring the possibility of rent “holidays” and other more fl exible rental arrangements intended, for example, to soften the fi nancial impact of barristers taking parental leave. Attempts to mirror some of the interstate developments in this area would no doubt assist. So too would a determination on the part of the profession to capitalise upon the experience of the pandemic by accepting the (now proven) reality that a signifi cant proportion of legal work can be done remotely.

While I would prefer to see more female judges, and for this bolstering of judicial ranks to occur sooner rather than later, my view is that practice at the Bar remains the best training ground for potential appointees. I do not have any diffi culty with solicitors and academics being appointed where appropriate, and I certainly accept that not all good barristers make good judges. But I consider that experience in the courtroom is a very important part of becoming a judge, and those with the most experience in that regard generally come from the Bar.

It has been pleasing in recent years to see a signifi cant number of women appointed to this State’s courts and tribunals. However, an unfortunate by-product of this has been a continual thinning of the ranks of senior female barristers through the (meritorious) appointment of women to the judicial ranks. While this has perhaps served as something of a handbrake on the progress towards achieving gender equality on the bench, particularly at the most senior levels of the judiciary, I am not sure there is any easy answer to this dilemma. But at the very least it serves to underscore the importance of efforts towards identifying and addressing the cultural and structural barriers to which I have referred so that the female contingent of the Bar is replenished and bolstered at a faster rate. B