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Abstract

This article considers a recent regulatory initiative formulated by the Law Council of Australia called the Equitable Briefing Policy (‘EBP’), which aims to address the disadvantage experienced by female practitioners at the Australian Bar. This article examines the origins and underlying rationales of the Policy. It contends that the Policy’s potential in deinstitutionalising gendered briefing practices at the Australian Bar is inhibited by Australia’s policymaking avoidance towards any form of ‘affirmative action’. This aversion is due to the conventional understanding that affirmative action and the merit principle are positioned in a dichotomous relationship, and thus remain inherently in tension with one another. It is argued, however, that in the context of briefing practices in Australia, such an understanding is primitive, and using merit as a means of rejecting other policy approaches only serves to inhibit the Policy’s application and effect.

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