Flagrant But Legal Discrimination in the NSW Law Society. By Janet Albrechtsen.

The latest NSW Law Society Journal reports that it awarded its annual President’s Medal to a lawyer who says he only briefs women barristers and, wherever possible, aims to brief barristers who are women of colour.

Nicholas Stewart, the recipient of this award, is, no doubt, an upstanding member of the legal profession. … The Law Society boffins who bestow awards clearly regard Stewart’s briefing practice as a fine thing.

“Virtuous” discriminator

There is another view. Sounding good is not the same as doing good. Celebrating someone who says he only briefs women barristers is an absurd way to fight discrimination.

One might, by the way, question whether a solicitor who deliberately briefs only women barristers is fulfilling their duty to their client to brief the best person for the client’s case. No doubt a GP who, on principle, only sent their patients to female neurosurgeons would face some tough questions. However, let’s leave that thorny duty-of-care issue for another day. …

In Australia, in 2023:

… discrimination is openly celebrated, and particular forms of diversity are used to exclude less favoured groups of people. …

Laws allow for “special measures”, legalising discrimination against men in this case.

Equal opportunity is so yesterday:

Prior to 1994, the federal Sex Discrimination Act was premised on equal opportunity; if a person did something that discriminated against a person on the basis of their sex, but it was done to ensure equal opportunity, that would not be unlawful discrimination under the SDA.

When the SDA was changed in 1994, the sentiment in the new section 7D appeared, at first glance, to be noble. Given historical and structural barriers to equality, a lower hurdle was introduced to make positive discrimination easier. Section 7D introduced the idea of “special measures” — a person would not contravene the Act if they were engaged in “special measures”, which, at least partly, sought “substantive equality” between men and women.

Today, it’s equality of outcome:

However, there is a time limit. Under section 7D(4), special measures are only permitted until “substantive equality” has been achieved. The clincher, and where this has all gone so wrong, is that “substantive equality” has come to mean equality of outcome. That means special measures taken by firms to discriminate in favour of women to achieve substantive equality can be cemented, effectively permanently, until a workplace is split 50-50, or substantially 50-50, between men and women.

Permanent bias:

What if some jobs don’t appeal to as many women as men? Women’s choices about what sorts of careers and hours of work they prefer became irrelevant when quality of opportunity is jettisoned for equality of outcome.

And the unfairness and inequality for men from the SDA’s sledgehammer measurement of “substantive equality” is obvious. If fewer women may want to enter a certain profession that appeals more to men, the pools of available talent in that profession may be very different for men and women. For quite legitimate reasons of personal choice, the available pool in a particular profession may be, say, 70 per cent male and 30 per cent female. But the law says an employer can ignore that reality and hire on a 50-50 split, thereby giving women preference to women out of proportion to their percentage of the pool of available labour. …

Positive discrimination is an inherently risky business. One person’s affirmative action is another person’s oppression. For example, when law firms positively discriminate in favour of women, that means they will necessarily brief a female barrister who comes from a privileged background and attended a private school over a Sudanese immigrant male barrister who overcame a desperate childhood and poor educational opportunity.

The author doesn’t go there, but there’s this fact too:

So under a fair system, most barristers would be male. And as for race, just look up the IQ stats.