Judging between meritocracy and quotas

Examples from the legal profession demonstrate why enforced quotas to increase female participation in politics and business are unwarranted, argues Morry Bailes.

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The Liberal Party of Australia is currently facing the age old question of whether to force gender equality amongst elected members by introducing quotas, or whether to bring about change through other mechanisms.

Exactly the same dilemma has been faced by many industries, including the law.

On boards of public and private companies, the same issue arises time and time over. The protagonists for a quota system assert it is the only realistic way of achieving equality, and lament the slow pace at which change has occurred. Those against argue that appointments would be made on grounds other than merit. Women who have argued for change scoff at the merit argument, and say there are plenty of women entirely meritorious who can be appointed to these positions.

Because the law is all about fairness and equality, it is a particularly poignant argument in our profession. What is sometimes overlooked however is that by enforcing quotas, there is inherent unfairness and inequality for men. It is the reverse of the discrimination we have inflicted on women over many years. So in the greater good is it now time to force a change, even if it means discriminating against boys and men?

When I was elected President of the Law Council of Australia I realised that it was important to analyse what number of men and women comprised our lawyer numbers in our firm. I admit, we had never looked at those numbers before, but we had had a longstanding employment convention of only employing on merit and the best from those who presented.

That was at the commencement of 2018, when the number of graduates from law schools in Australia was about 60% female and 40% male. It remains at about that ratio, although there are gradually more and more females graduates from law. When we analysed our firm, numbers were exactly 60% female and 40% male. Those outcomes were based on a policy of only employing the best, and our numbers reflected precisely the ratio of females and males graduating from law schools. A quota system was not required.

The starting point in our firm when I joined in the late 1980s is that it was very male-dominated. That means that to achieve the 60/40 balance it required us to employ more than 60% of female graduates and lawyers to redress the imbalance. Why was that so easy? It is partly because there are more females, for instance, who practice family law than males. The areas in which our firm practised tended to attract females, and we employed the best people irrespective of gender.

As a managing partner for nearly 20 years I would describe myself as a ‘male champion’ for change in the context of the gender make up of our firm. However it was entirely merit-based, on the strength of who applied for jobs.

We got there without quotas because women are perfectly able to achieve on their own merit. The risk is that quotas, once introduced, may eventually end up preventing meritorious women from getting positions, as well as meritorious men.

Our firm however is regarded as a large firm by South Australian standards. What about smaller firms? That is where the issue becomes immediately more complex, as it does with the question of firm ownership, or for that matter business ownership across the board. In large organisations or public listed companies, there is more opportunity to force equality through policy settings. But 85% of law firms are either sole practitioners or small firms that comprise two or three lawyers.

The law is also an ageing profession. Many lawyers have been practising for 30, 40 and even 50 years. Such people may have owned their business for decades and decades.The idea that a two partner firm formed in the 1970s by two men must somehow achieve ownership equality by selling half of the firm to two females is unrealistic. Indeed offers are frequently made to female employed lawyers to become owners, and are rejected. They are rejected because of family circumstances, the desire not to be encumbered with the responsibility of ownership and for a myriad of other reasons. Men also reject offers of ownership for the same reasons.

On the whole in recent times, because law firm ownership is exactly the same as any business ownership – onerous and difficult – more younger people are inclined to give it a miss and stay on a salary. It is not the rite of passage to partnership that it used to be. Succession has become quite a problem. It takes a special type of person to own and run a small or medium enterprise in Australia because the odds are stacked against you, from our industrial relations laws to our tax system. No quota is going to fix that, only law reform.

Paradoxically, the other problem with quotas is that it cuts both ways. The Law Society of South Australia introduced a quota system for the electing of the position of Vice President and for the metropolitan member category of its governing Council and for its Executive. Entrenched by rule changes was an office holding for one female VP and one male VP, and on the governing Council eight positions entrenched for metropolitan women and eight for metropolitan men.

The problem however has been that there has been insufficient interest from men, so the ‘male’ VP office in this year’s election was unfilled, as were a number of the ‘male’ positions on the Council.

On the other hand there was a contest and election for the eight’ female’ spots. Thus interested and capable women are being prevented from occupying an office, because of the rule. All in a profession increasingly dominated by women and avowed to fairness and equity. Bizarre. In fact worse than that – laughable – that at the election we were unable to form a full Council because of a quota system largely championed by women.

Bit of an own goal by the profession you might think, but it goes to demonstrate the potential absurdity of such mandated systems. A system designed to include women has excluded them. All I can say is that business would not make such a rookie mistake. We want women and would not exclude merit on the basis of an arbitrary rule.

Any quota system only works if there is equivalent  interest from both men and women. The fact of the matter, and a fact often overlooked, is that men are not always interested, just as women may not be interested. To assume equivalent interest is simply incorrect. There can be, but there may not be. I have seen countless examples of both over nearly three and a half decades of being in business.

How can we achieve equality through the use of a quota system if all the applicants or expressions of interest in a position are from women or all of them are from men? Does that sound unlikely? Because it’s not, it happens often. We can’t seem to get male personal assistants in our firm for all the tea in China, and in a recent board recruitment exercise that I was involved in, all of the expressions of interest were from men.

So on occasion, what one is left with is the worst of both worlds. We risk discriminating against men who may be the most meritorious person to appoint to a position, and we are preventing women from appointment because in both examples we are held captive by a quota system.

There is a further misconception underlying the quota idea because it carries with it the assumption that it is always desirable to have precisely even numbers of men and women.

Speaking for our firm, we would prefer to employ on merit even if it means the majority of our lawyers are female because that is who our law schools are graduating out. A quota system in the law will ultimately hold back women, which is bad for business. Should a quota system be extended to law schools, women would again miss out. A quota system is the ultimate two-edged sword.

It is the same in many industries that are either dominated by women, think nursing, or by men, say IT. Quotas are the stuff of idealists who want to shape the world in a way they suggest is their ideal. Superficially there is appeal to the idea of instantly correcting inequality. But reality can work very differently.

Moreover, whilst parliaments and public boards are very transparent, the vast majority of wealth produced by Australians is through small and medium enterprise. These businesses are opaque and are not easily open to this type of policy and equally difficult to examine and hold accountable. Such enterprises are not likely to feel compelled to adopt a quota system when they have managed businesses successfully without the need to take instruction from the quota police on how to run the show. So many of these discussions are held at the ‘big end of town’ level, where there is respectfully a lack of understanding of how small and medium enterprise really works. Whilst they talk about it, we do it.

Quotas are another example of the nanny state at work. It is people who want to dictate to other people how to conduct themselves and their enterprises, when it is frankly none of their business.

An attempt has been made in the law to equitably brief barristers. When I was regularly briefing the bar, I briefed more women than men. It just so happened that I thought the best person to regularly brief was a woman. A quota system would have meant that barrister, now a judge, would have received less work from our firm, not more. It is the inverse of the result that is sought by the sort of meddler that argues in favour of a quota system.

Political parties may be an exception to the rule, however candidates go through a rigorous preselection process so actually it’s up to the members of the party to determine who they wish to choose. If you don’t like your representatives in parliament, then join a political party and change the system. It is extraordinary how many people complain about who is in parliament, but do nothing about seeking to alter that by being democratically involved as a member in a political party.

Incidentally, in the case of the Liberal Party (SA Division) in the latest preselection for candidates for our state upper house for the 2022 election, every person who was pre-selected in a winnable spot on the ticket was a woman, save for Dennis Hood. The probable outcome is that for the first time in South Australian history there will be more females than males in the Legislative Council by 2022; in the case of the Liberals, no quota required.

However I don’t seek to enter that debate, but rather to make the point on behalf of business that by in large we get it right, because we choose the best person for the job, based on the fact that we want the business to succeed. The idea of excluding women does not make business sense at all. It would result in exactly the reverse effect, so I would urge all of those who are inclined to support a quota system, to take a deep breath, and trust their fellow Australians and our innate sense of egalitarian fairness.

Women are perfectly able to get there on their own; there’s no need to force it.

Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia. He is a member and past office-holder of the Liberal Party.

Originally published InDaily 1st April 2021