The Australian superior courts surveyed were the High Court of Australia, the State and Territory Supreme Courts and Courts of Appeal, the Federal Court of Australia, the Family Court of Australia and the Family Court of Western Australia.
The term “appearances” was defined as “those occasions in which a legal practitioner raises legal argument or adduces evidence while defending or presenting a case”, and thus did not include matters in the nature of directions hearings and mentions.
The survey findings provide comparative data about the rate of appearances of categories of barristers with the rate at which they could be expected to appear given their representation at the Bar.
EXTENT OF THE SURVEY
Most of the survey data was collected during the four week period between 4 and 29 May 2010. However, where necessary, the survey was also conducted during modified timeframes.
Nationally, the survey covered 2,320 matters involving 5,462 appearances by legal practitioners, 4,165 by males (76%) and 1,297 by females (24%). In Queensland, it covered 596 matters (that is 26% of the 2320 matters surveyed nationally) involving 1216 appearances by legal practitioners in Queensland (that is, 22% of the 5462 appearances nationally).
The survey involved a total appearance time for practitioners nationally of 15,177 hours while the total appearance time for Queensland practitioners was 1,876 hours (or 12% of the 15,177 hours nationally).
Nationally, civil matters accounted for 77% of the matters, while criminal matters accounted for 23% of the matters. In Queensland, 73% of matters surveyed were civil and 27% were criminal matters. Appearances arose from applications in 36% of the matters nationally and in 51% of the matters in Queensland. Nationally, 43% of matters were hearings while in Queensland 40% of the matters were hearings. Trials constituted 10% nationally and 4% in Queensland, and appeals constituted 12% nationally and 6% in Queensland. Nationally, 88% of matters were heard by a single judge and 12% by more than one judge, while in Queensland, these figures were 93% and 7%, respectively.
THE SURVEY POPULATION
At the time of the survey, the survey population was as follows:
Australia
Queensland
Male
Female
Male
Female
Total barristers (Australia = 5,487; Queensland = 932)
81%
19%
81%
19%
Total Silks (Australia = 827; Queensland = 94)
94%
6%
96%
4%
Total Junior Counsel (Australia = 4,660; Queensland = 838)
78%
22%
80%
20%
Silks (15% of all barristers nationally) constituted 18% of appearances while junior counsel constituted 59% of appearances. Solicitors/advocates constituted 24% of appearances of which 62% are male and 38% are female. However, it was not possible to quantify the solicitor/advocate category from any records kept and therefore no comparisons or conclusions can be made about this segment of the survey population.
MAJOR FINDINGS
Some of the more significant findings may be summarised thus:
- There was no significant difference between survey appearance rates and the actual Bar population of both male and female barristers;
- Nationally, the average appearance time for male barristers was 3.8 hours but only 2.8 hours for female barristers;
- In Queensland, the average appearance time for male barristers was 2.2 hours, whereas the average appearance time for female barristers was 1.5 hours; hence, average appearance time for male barristers was 46% longer than for female barristers;
- Although “other entities” (see below) brief female barristers in higher proportions than private law firms and in higher proportions than they exist in the Bar population, there is a significant gap in the length of their appearances relative to their male counterparts.
Appearances Relative To The Bar Population
Appearances relative to the bar population was as follows:
Australia
Queensland
Male
Female
Male
Female
Total barristers
81%
19%
81%
19%
Total Silks
91%
9%
95%
5%
Total Junior Counsel
78%
22%
78%
22%
Appearances By Time Duration
Appearances by time duration was as follows:
Australia
Queensland
Male
Female
Male
Female
Total barristers: per cent of hours
86%
14%
86%
14%
Total barristers: total average hours
3.8 hrs
2.8 hrs
2.2 hrs
1.5 hrs
Total Silks: total average hours
4.9 hrs
4.1 hrs
Total Junior Counsel: total average hours
3.8 hrs
2.8 hrs
Appearance by Briefing Entity
There are two categories of briefing entity, namely “private law firm”1 and “other entities”2.
Nationally:
- Private law firms briefed male barristers in 86% of matters and 87% of appearance hours while female barristers accounted for 14% of matters in 13% of appearance hours;
- Male barristers were briefed by “other entitles” in 70% of matters, whereas female barristers were briefed in 30% of matters;
- On average male barristers briefed by private law firms appear for 3.9 hours and females for 3.4 hours (a difference of 15%).
In Queensland:
- Private law firms briefed male barristers in 87% of matters and female barristers in 13% of matters;
- Male barristers were briefed by “other entitles” in 66% of matters, whereas female barristers were briefed in 34% of matters.
CONCLUSION
In my opinion, this survey confirms the need to develop strategies to increase (1) the proportion of woman at the Bar; (2) the number and quality of briefs provided to female barristers, particularly from private law firms; and (3) the advocacy role of female barristers to ensure access to silk where appearance work is more concentrated.
The Law Council is presently developing a response to the survey results.
Dan O’Gorman SC 30 April 2010
Footnotes
- includes incorporate legal practices and sole practitioners
- includes, for example, government departments and community legal services
