If the past 12 months are anything to go by, not even the sky will demarcate the next calendar year in law. By Melissa Coade.
Cirque du Soleil could take a few cues from the legal profession for its next big-top production. With all the near misses, twists and tumbles, the last 12 months have been at once awe-inspiring and bizarre.
Political pundits were treated to a breathtaking series of sideshows, with the presidential election of Donald Trump in the United States and the emphatic opt-out of Britain from the European Union in Brexit. Former Australian prime minister Kevin Rudd even fancied himself a dark horse in the running to take on the role of UN Secretary-General, until pollies on home turf refused to support his nomination.
Elected representatives in our nation’s capital put on a number of show-stopping performances themselves, a notable display being the stoush between two legal strongmen, Australia’s first and second law officers. The height of the politicised showdown came in October, when Commonwealth Solicitor-General Justin Gleeson SC resigned in the wake of an uncomfortable Senate committee inquiry.
The committee quoted Lewis Carroll’s Humpty Dumpty character in its final report to evoke the fanciful tone of the circumstances that led to the finding that the A-G had failed to properly consult the Solicitor-General: “When I use a word, it means just what I choose it to mean, neither more nor less”.
The legal and constitutional affairs committee was convened to determine whether a Senate direction, which concerned the way that the Solicitor-General can be briefed, had been tabled by Attorney-General George Brandis QC without proper consultation. That issue became moot once Mr Gleeson stepped down from his post and the direction was quietly withdrawn.
In his letter of resignation, the Solicitor-General cited an “irretrievably broken” relationship with the A-G. Mr Gleeson went on to reiterate that his departure was in no way a step back from the stance he took on matters of controversy before the Senate committee.
The use of whimsical riddles rolled into government reports was certainly not the last time that language took centre stage in 2016. Spectators watched with bated breath as section 18C of the Racial Discrimination Act was offered up as a volunteer for a disappearing act. The crowd divided over concerns for free speech on one side and a desire to ensure that legal protections from discrimination remain robust on the other.
Professor Gillian Triggs, another federal statutory office-holder, was subjected to sustained attacks by the media and government. As if she was in a death-defying knife-throwing routine, the president of the Australian Human Rights Commission had a range of near brushes with blades of all shapes and sizes in 2016. From the proposed carve-up of section 18C, to the gay marriage plebiscite, 501 visa cancellations and the scores of asylum seekers detained in offshore detention,
Professor Triggs has been pilloried for either speaking out of place or defending the commission’s role of mediating the plethora of issues it has a legislated mandate to handle.
Policy and the profession
The detention conditions for youths in the Northern Territory drew special attention from the profession in 2016. This issue, which many had considered an elephant in the room for some time, came crashing back onto the scene when a Four Corners report aired shocking CCTV footage that shone a spotlight on the mistreatment of young offenders in correctional facilities such as the Don Dale Youth Detention Centre.
Evidence of guards using a heavy-handed tactics against young inmates and the dehumanising practice of restraining children by strapping them to chairs in spit hoods had onlookers aghast. The president of the Law Society Northern Territory went on the record to say that mistreatment in the Don Dale Youth Detention Centre had been on the government’s radar for years.
The federal government swiftly moved to appoint a royal commission to investigate the territory’s juvenile justice system, with hearings still underway.
A critical analysis of the Indigenous incarceration rate in the NT is one of the key objectives of the royal commission, with the Law Council of Australia (LCA) continuing to champion the nationwide scrutiny of the issue. The latest evidence-based indictment hit in November, when the Productivity Commission revealed that the imprisonment rate of Indigenous Australians has risen by as much as 77 per cent over the past 15 years.
The issue of Indigenous incarceration unavoidably intersects with another of 2016’s key concerns: the funding of legal aid services.
A chorus of voices across the profession returned attention to the alarming precipice that many say faces vulnerable communities. The LCA, National Legal Aid, individual practitioners and community legal centres from coast to coast described the funding situation facing state-aided legal services as teetering on the edge of a “funding cliff”. Many groups expressed alarm at the lack of certainty over the source and extent of future funding for legal aid services.
The flashpoint of that conversation came earlier in 2016 when the government responded to the recommendations of the Productivity Commission report Access to Justice Arrangements. Of the 83 recommendations to improve the accessibility of Australia’s civil justice system that were published in the report, the government was only moved to respond to 16.
National Legal Aid hit out at the response, labelling the government’s pledge to boost funding for legal assistance by $15 million “disappointing”. When responding to the report’s recommendations in May, the A-G cited a “tight fiscal environment” and said the government was “doing what it [could]” to increase the level of funding.
In July, the A-G said that over the next five years, community legal centres (CLCs) can expect funding under the National Partnership Agreement, which made the states and territories responsible for the allocation of $1.6 billion in federal funds. The CLCs warned that a shortfall of $34.83 million will hit the sector under the plan.
Court crises
Criticism was also hurled the other way in Canberra, when Queensland senator Pauline Hanson gave a scathing assessment of the family law system in September.
The One Nation leader used her maiden speech in the upper house to decry the “unworkable” courts that decide family law matters.
She also slammed family law practitioners as being the greedy beneficiaries of a broken system, who are “rubbing their hands together, watching the thousands of dollars coming their way”.
The vocal politician called for a tribunal of citizens to replace the judicial framework that oversees family law in Australia.
Another controversial issue to take centre stage in 2016’s political arena was the promise of a national vote on same-sex marriage.
In response, the Law Institute of Victoria (LIV) wrote an open letter endorsing the LCA’s position against the proposed plebiscite, which it said would be “effectively discriminatory”. The LIV also backed the Australian Human Rights Commission’s assessment that the plebiscite was an inappropriate instrument to resolve fundamental human rights issues.
Baker & McKenzie, Marque Lawyers, Maurice Blackburn and Squire Patton Boggs all endorsed the LIV letter, with Bakers issuing a statement on behalf of the firms saying there was no justification for the “social dislocation” that a plebiscite on marriage equality would cause. The proposal was ultimately voted down in the
Senate in November, with the majority taking the position that the national vote would have exposed Australia’s LGBTI community to unnecessary harm.
Culture tussle
Equality was an overarching theme in 2016, in both the Australian and the international legal professions. However, even a deft magician knows that a culture shift can be a hard trick to pull off. Just enforcing a costume change can be confusing, as five Victorian barristers learnt.
Earlier in the year Victorian Supreme Court Chief Justice Marilyn Warren AC issued an edict to dispense with a 17th-century convention pursuant to section 9A of the Supreme Court Act 1986. The directive resolved that from 1 May judges of the state’s highest court would not wear wigs “but for exceptional circumstances”. Logic follows that advocates are also subject to the same rules.
When five barristers appeared, wigs on heads, in the common law division of the Victorian Supreme Court, Judge Kevin Bell refused to hear their appearances, saying that the horse-hair wigs were “in open defiance” of the Chief Justice. The barristers apologized to the court and offered to remove their wigs.
Diversity disruption
On a separate matter, but still riding the wave of change, CJ Warren remarked at an admissions ceremony for new lawyers that she likes to think women in Victoria “hold up half of the law”.
CJ Warren, who was the first woman to be appointed Chief Justice in Australia, told the group of new lawyers that over the course of her career she has watched as gender representation among the ranks of legal practitioners has dramatically shifted to more accurately reflect that in wider society.
“This change in diversity is something that must be remarked upon. It is also a sign of the future,” she said at a special ceremony hosted at the Banco Court in Victoria last year.
The Law Society of NSW rolled out its Charter for the Advancement of Women in the Legal Profession in 2016. The document aims to encourage strategies focused on retaining women in the profession and promoting the career progression of women lawyers. Ninety-six NSW firms have signed on to the charter to date, including heavy hitters such as Allen & Overy, Ashurst, Herbert Smith Freehills, MinterEllison and Spark Helmore.
Many captains of the profession also led the push for diversity over 2016, such as HSF’s Australia and Asia regional managing partner Sue Gilchrist. She threw her support behind a range of gender equity initiatives in the profession and took on a new role as the firm’s pay equity ambassador to the Workplace Gender Equality Agency (WGEA). “It is pleasing to see the proactive actions to ensure talented women have equal opportunities in the profession,” Ms Gilchrist remarked.
The release of the WGEA’s annual data set revealed a 34.4 per cent pay gap between women and men in the legal services sector. In terms of equal pay, the numbers placed women in law behind those in other Australian sectors, who on average face a 24 per cent wage gap. While they continue to be paid less than men, women made up the majority of the national sample group of more than 28,000 legal services staff. Since 2014, the gender pay gap in law has been reduced by a mere 1.2 per cent.
Damning headlines hit desks last year with an analysis of incomes reported to the Australian Tax Office. Looking at raw data, a research group at the Australian National University showed that Australian barristers contend with a larger gender pay gap than any other occupation. On average, the ANU found that male barristers reported earning 184 per cent more than women.
While the findings came as no surprise to the legal fraternity’s representative bodies, divergent views about the best way to address the issue soon emerged.
Victorian barrister Fiona McLeod SC, the next practitioner to take the helm of the LCA, launched a revamped equitable briefing policy in June, which includes a number of non-mandatory targets that are intended to be met by 2020. Within four years, the policy hopes to see 30 per cent of all matters briefed out to women barristers, and women barristers earning 30 per cent of the total value of all brief fees.
In November, 11 mid- and top-tier law firms endorsed the LCA’s equitable briefing policy and major corporations such as Telstra, Woolworths and Westpac soon came on board. Not long afterwards, NSW Attorney-General Gabrielle Upton also indicated that she was considering whether the policy might be suitable for state government agencies.
Although the Australian Bar Association (ABA), the NSW Bar Association, the South Australian Bar Association and the Northern Territory Bar Association signed on to the LCA’s policy, their Victorian and Queensland counterparts are yet to follow suit.
Similarly, the law societies of NSW, Victoria, Western Australia, South Australia, Tasmania and the Northern Territory endorsed the equitable briefing policy in 2016. The Queensland Law Society (QLS) is notably absent from the list.
QLS president Bill Potts articulated his position in the September edition of Proctor, suggesting that for smaller firms it would be “difficult” to forecast the number and type of briefs that would arise a year in advance. He added that a working party had determined that the LCA’s data collecting requirements would impose a “significant administrative burden” on solicitors, and on sole practitioners in particular.
Lawyers in the sunshine state responded to the discord in their own ways.
Hemmant’s List was established in June, marking the state’s first clerk-led barristers’ list model. The online list has co-ordinated the briefing of 27 counsel around Queensland, and was founded to facilitate a more equitable briefing regime. Eleven of the list’s counsel are women. According to the latest ABA figures, women make up 241 of Queensland’s 1,098 practising barristers.
A curated list of all female barristers practising in the state went live in September. The project is co-ordinated by the Women Lawyers Association of Queensland, which adapted content from the Queensland Bar Association website to curate a more searchable profile of women barristers by practice area. Institutional progress slowly continues.
Next gen
The business of law in 2016 was an intensive exercise in looking forward, fortune-telling and future-proofing. Driven by the PM’s innovation agenda and by clients craving innovation, top-tiers moved to harness the concept in different ways.
Some, like Sparke Helmore, opened independent outfits to take innovations to market and offer as much malleability as possible. The national firm launched its innovation hub Bright Sparke in November, with a view to using the new entity as a vehicle to bring customisable solutions to clients. Its focus has now pivoted to offering “solution-driven” products.
In a similar spirit, other giants such as Allens and HSF concentrated on client collaboration as the magic ingredient for their innovation formulas. The popular belief is that one size does not fit all, and law firms have realised that their value propositions need to extend beyond the realm of legal practice.
In October, months after the spectacular Panama Papers data leak, Allens announced that it would open a new end-to-end data governance and data services practice. The firm said its decision to launch the new group was a response to clients looking to exploit opportunities and navigate the complexity of data environments. The move was part of a wider trend, where managing cyber risk and security is now a priority for businesses.
HSF continued to expand the innovative model that is its alternative legal services (ALT) business branch. In 2016 the legal powerhouse opened a new office in Melbourne, and what was originally intended to be a temporary “ALT services pop-up” in Perth has continued to operate into 2017.
Firms also reimagined how their service offerings might contort and soar with the same acrobatic qualities that clients want to hone for themselves. To achieve this, relationships with clients are increasingly being cultivated not at the time that a legal problem arises, but well beforehand. For innovation-conscious professionals, this means more work alongside clients and other allied professional services.
In 2016 Corrs Chambers Westgarth took the challenge to a whole new level, courting a selection of start-ups as a matter of “strategic investment”.
Corrs entered a partnership with an accelerator based at the University of Melbourne. Under the agreement, the firm will deliver a number of masterclasses and half-day clinics to participants in the Melbourne Accelerator Program (MAP).
Corrs teamed up with the tertiary sector after forming the view that start-ups represent a number of high growth companies, and on the back of a successful partnership in 2015, when the firm sponsored an entrepreneurs’ course offered by the Wade Institute.
Beyond legal processes, 2016 also saw firms cleverly leverage technology to identify the best candidates for their workforce. In what might hint at technology’s future reach on the legal hiring front, a contextual recruitment system (CRS) developed in the UK was adapted for the Australian market and for the first time was used to hire this year’s batch of summer clerks by one major firm.
The CRS tool, Rare CRS, provides a more complete picture of would-be lawyers using sophisticated metrics and a data ‘scraping’ method.
Henry Davis York and King & Wood Mallesons plan to deploy Rare CRS for their clerkship recruitment in 2017. Allens implemented the data-driven recruitment algorithm to complement its summer clerkship selection process in June.
And what of the novice members of the profession, who are about to step beyond the hallowed halls of university and into this brave new technological world?
They’ve been put on notice. Core knowledge is essential, as it has always been. But they must be engaged and creative about the routes that their careers may take.
Firms want business-savvy juniors with interesting back stories. They are increasingly being attracted to graduates with dual qualifications in law and technology, and the coveted spots in the competitive job market demand that candidates demonstrate lateral thinking and are open to change. The truly brilliant ones are able to demonstrate the entrepreneurial streak that clients prize.
Australia’s law schools, about 40 nationwide, are certainly paying attention to emerging changes. According to the 2016 chair of the Council of Australian Law Deans (CALD), Professor Carolyn Evans, five years ago there may only have been a handful of law schools that offered electives that integrated technology. Now, she said, universities across the board are tackling the issue with much more serious pragmatism.
The focus is to equip new lawyers with the practical skills that will allow them to successfully engage with the digital environment. Everybody is bracing for a future where artificial intelligence will play a bigger role in the administration of justice and the way clients interact with the legal system.
Bond University law dean Professor Nick James echoed this sentiment, saying that graduates need to be aware of the different kinds of legal roles tomorrow has in store, including more “behind the scenes” roles. He said graduates must complement their intellectual rigour with an understanding of how NewLaw entrants have changed traditional legal services.
The CALD also collected hard statistics to settle once and for all just how many students are graduating and eligible to enter the legal profession. In part, the initiative was taken to dispel the hype around the so-called ‘glut’ in graduating law students. The CALD confirmed that 7,583 students graduated with an LLB or a juris doctor in 2015.
Whatever state the jobs market is in, there is no question that the competition for work is fierce. The promise of more opportunities for would-be lawyers caused a stir in 2016, with new global entrants announcing that they would dive into Australia’s legal market. The star attraction of the year was the landing of US giant White & Case on Aussie soil in December. After the firm headhunted a team of 10 partners from HSF in September, spectators are keeping an eye out for the next round of major hires.
And so the high flyers continue to soar, morphing every so often but at a much more rapid pace.
