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Tipping the Scales: Equity and Diversity at the Bar1

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Tipping the Scales: Equity and Diversity at the Bar1 Tipping the Scales: Equity and Diversity at the Bar1 ByJane Needham SC On 14 March 1924 Eugene Gabriel Sayegh was called to the bar. His admission was moved before the full bench of the High Court by the attorney general of New South Wales, Sir Thomas Bavin. Sydney’s infamous tabloid at that time, The Truth, described him as ‘the only Syrian barrister in Australia’ and followed up with the superfluous observation that ‘foreign legal lights are few and far between in this country, so Mr Sayegh’s position is rather unique’.2 In fact, Eugene Sayegh was born in Auckland where he attended Sacred Heart College, before moving to Australia and graduating from Sydney Law School. According to The Truth, Sayegh had appeared in ‘several big lawsuits in which his countrymen have figured’, although it’s entirely unclear as to whether this meant Syrians or New Zealanders. As if anticipating disbelief on the part of its readers, The Truth’s correspondent felt the need to assure them of Mr Sayegh’s competence. Fourteen years later, in May 1938, William Jangsing Lee became the first Australian of Chinese heritage to be admitted to practise as a barrister in NSW.3 The Sydney Morning Herald, and at least ten other newspapers across the country, reported any were needed, can be found from the Bar Association’s own his admission. At the time, there were only 10,222 Chinese in records. When asked to identify proficiency in languages other New South Wales out of a population of 1.35 million. Briefs for than English, responses revealed only one Mandarin speaker, juniors were hard to come by in those days, but Lee’s ethnicity one spoke Arabic, one Hindi and there was a solitary Punjabi would have compounded the problem. In a fascinating article speaker.5 The language most commonly spoken by barristers is, published in the Winter 2015 edition of Bar News, Malcolm oddly, French. Oakes SC described how Lee eventually gained a foothold at the bar through connections to the small, but tight-knit Of course, the monochromatic nature of the New South Wales Chinese community: Bar is most keenly felt in the appallingly low representation of Indigenous Australians. It was not until 1972 that Lloyd His practice improved with the formation of the Australian McDermott (Mullenjaiwakka) became the first Indigenous branch of the Chinese Seamen’s Union in 1942. Some Australian to practise as a barrister.6 Nearly fifteen years after 2,000 Chinese seamen became refugees as a result of the the establishment of the Indigenous Barristers Trust and the fall of Hong Kong and Singapore…The connection implementation of the Indigenous Barristers Strategy by a spawned an immigration law practice: briefs in the Industrial Commission seeking equal pay for Chinese dedicated working party, only four members of the bar identify 7 crew; defending Chinese seamen on criminal charges for as having Aboriginal or Torres Strait Islander status. It was desertion; defending Chinese who failed the dictation test; only this year, of course, that Anthony McEvoy SC became the and later refugee deportation briefs. nation’s first Indigenous silk. Recently, I was honoured to represent the Bar Association at the It was only this year, of course, that Anthony launch of the New South Wales chapter of the Asian Australian Lawyers Association, the AALA. Appropriately, the special McEvoy SC became the nation’s first guest speaker was the Hon Michael Kirby, who has spoken Indigenous silk. often of the need for greater diversity in the Australian legal profession. He said, in speaking of the need for hard facts in order to ground the way forward: ‘You can only build the future on what is known in the present’. Data compiled by the AALA For its part, the media has duly reported the arrival and shows that currently, only 1.6 per cent of barristers and 0.8 per undoubted achievements of various ‘pioneers’ at the New 8 cent of judges are of Asian background.4 Further evidence, if South Wales Bar. But these vignettes don’t portray the mere Bar News : The Journal of the New South Wales Bar Association [2015] (Summer) Bar News 29 FEATURES Jane Needham SC, ‘Tipping the scales: equity and diversity at the bar’ absence of equity and diversity during the first century and leave ‘blood on the floor’. Young barristers model a half of an independent referral bar. Rather, they depict a themselves upon those they see as being successful leaders male, Anglo-Saxon or Anglo-Celt hegemony, which not only of the profession. When most of these leaders are by constituted and defined the profession of barrister, but also historical necessity male, stereotypes are perpetuated and 15 determined who was permitted to enter the profession. To be are in turn fed through to solicitor and client perceptions. sure, representatives of each minority, whether successful or not Through the excellent work done by the Bar Association’s at their practice, were tolerated. However, they were always the Equitable Briefing Working Party, and the authors of a recent exceptions to the proposition that a barrister was a tall, white, survey of members, we’ve moved from the anecdotal to the 9 ‘not too young, preferably baritone man’. empirical. The data shows that many female juniors experience Indeed, in 1969 the Right Honourable Sir Victor Windeyer difficulty being briefed, getting time on their feet in court, and KBE CB DSO ED began the Introduction to John Bennett’s getting paid the same as male colleagues. Around 20 per cent History of the New South Wales Bar by saying: of the bar are women. However, a survey of reported cases for the period 1 July 2014 to 30 October 2015 shows that seven The history of the Bar of New South Wales is the story of per cent of senior counsel appearing in the High Court, and men practising as barristers.10 only 4.48 per cent of cases in the NSW Court of Appeal, were This opening statement by Sir Victor wasn’t inaccurate, even in women. Things are a little better in the Court of Criminal relatively recent times. Until 1976 no more than two women Appeal at 37.5 per cent, but that is explicable to an extent commenced at the NSW Bar in any by the Crown prosecutors and public year.11 When I started at the bar in 1990, defenders having a significant number of there were still so few women readers that Gleeson SC and Sofroniou women advocates who undertake appeal we were able to be taken individually to began with the ontological work in crime. I am indebted to Kate lunch in the Common Room by Janet question of ‘what is a barrister’ Eastman SC and Kate Morgan for their Coombs. Now, the Janet Coombs lunch research on this issue. for new women readers fills the Law and focussed on the nature of Sadly, the survey of our members in Society venue in which it is held. advocacy itself. 2014 demonstrates that the gender pay It’s well known that the first woman to gap at the bar is well over 30 per cent – seek admission as a barrister in NSW was way above the differential in other fields. Ada Evans. She graduated from Sydney Law School in 1902 There have to be factored into those but was barred from practising until the passage of the Women’s figures issues of seniority and the fact that 90 per cent of silks Legal Status Act 1918. The bill for that Act had a fraught passage are men, but a significant difference in fees is observable at all through the male-dominated NSW Parliament.12 Evans was stages, and across all cross-correlations of experience, which eventually admitted in 1921 but never practised. The honour tells us that there is a significant problem. of being the first practising female barrister went to Sybil Morrison, who was admitted on 2 June 1924. Diversity and advocacy Until recently, the question of why so few women practised at What, then, is the cost to society of a bar lacking in both equity the bar excited surprisingly little academic research.13 Yet the and diversity? ‘question of women’s experiences at the bar intersect with more In her contribution to the bar’s centenary essays (2002) fundamental questions about survival at the bar, which are Rosalind Atherton (now Croucher) asked the deceptively simple 14 faced by all its members’ – including those who come from question: ‘Why did Evans and Morrison become barristers?’16 disadvantaged socio-economic backgrounds. Croucher’s first explanation is pedigree: both came from legal In 2004 Bar News examined the relationship between equity families. At the time of Morrison’s admission it was said that and diversity. Gleeson SC and Sofroniou began with the ‘her parents were steadfast in their desire that she should ‘follow ontological question of ‘what is a barrister’ and focussed on the in the footsteps of her uncle, who was a famous KC in Dublin, nature of advocacy itself. They argued that: and go one better than her brother, who is a well known 17 Powerful male role models reinforce notions that a cross- solicitor in Queensland’’. examination is there to ‘destroy’ a witness’s credibility or to [2015] (Summer) Bar News 30 Bar News : The Journal of the New South Wales Bar Association Jane Needham SC, ‘Tipping the scales: equity and diversity at the bar’ Croucher also noted that in addition to family ties to the legal practice, fostering tolerance and reflecting the social and law, Ada Evans ‘had a personal mission’.
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