A. INTRODUCTION

The Present Position

10.1 At present, barristers in New South Wales wear a special dress when appearing as advocates in the higher courts. The dress comprises a wig, gown, bar jacket, wing collar and neck bands. Barristers who are Queen’s Counsel wear a different type of wig (on ceremonial occasions), gown, and bar jacket from that which is worn by other barristers. Solicitors, however, do not wear special court dress when they are appearing as advocates in the higher courts or on any other occasion.

10.2 The Bar Association is of the view that barristers should continue to wear their present court dress. ¹ It appears, however, that there may be a considerable difference of opinion within the Bar on this question. A referendum conducted by the Bar Council in 1975 produced the following result: ²

	Barristers favouring Abolition	Barristers favouring Retention
Wig	136	212
Gown	75	273
Bar Jacket	126	222
Wing Collar	170	178
Bands (bibs)	133	215

In 1977 Sir Garfield Barwick, then Chief justice of the High Court of Australia, referred to this referendum and said:

“I think the day will come when the wigs will go. That is a matter of time. I doubt whether the day will come when the robes will go.... I think there is value in at least the robe.” ³

10.3 The Law Society is of the view that, whether barristers or solicitors, “advocates appearing in all the Courts of this State should not be permitted to wear wigs and gowns, other than on ceremonial occasions.” ¹ It says, however, that “this question has produced a great deal of division of opinion amongst members of the solicitors’ branch”. ² The Public Service Board of New South Wales, an employer of some hundreds of solicitors and non-practising barristers, submitted to us that “wigs, gowns and/or distinctive dress should not be worn by barristers or other advocates”. ³ We refer later in this chapter to a number of other views concerning court dress.

10.4 The present position concerning court dress in Queensland is similar to that in New South Wales. In all other parts of Australia, and in New Zealand, the special court dress is similar to that which is worn in New South Wales but all practitioners are admitted as “barristers and solicitors” and wear the same court dress when appearing as advocates. in those Federal courts and tribunals where special court dress is worn, it is worn by barristers (but not solicitors) from New South Wales and Queensland, and by all practitioners from other States or Territories who are appearing as advocates. In England, the position concerning barristers’ court dress is similar to that in New South Wales, but, unlike their New South Wales counter-parts, solicitors wear gowns and bands when appearing in some of the courts where they have a right to be heard. The solicitors do not wear wigs, and their gowns and bands are different from those of barristers. ¹

10.5 The question of court dress was considered recently in New Zealand by the Royal Commission on the Courts. ¹ The Department of justice in New Zealand submitted to that Commission that wigs and gowns should no longer be worn. The Law Society, however, said that opinion in the Profession was divided and it expressed no firm view on the matter. The majority of the Royal Commission recommended that the present court dress in the higher courts should be retained, but the minority considered that only gowns should be retained. All members of the Commission were of the view that special court dress should not be introduced into the proposed District Courts, and this recommendation has been adopted. Neither of the recent Royal Commissions on Legal Services in the United Kingdom made any recommendations in relation to court dress. ²

Our Discussion Paper

10.6 In Part I of the Discussion Paper, The Structure of the Profession, we suggested that wigs, bar jackets, wing collars and neck bands should cease to be part of the special court dress worn by barristers. ¹ One of us also favoured abolition of the gown. We suggested that solicitors appearing as advocates should wear the same court dress as barristers. But we said that we saw no objection to a Queen’s Counsel continuing to wear a gown of different material and design from that worn by other practitioners.

10.7 In Part II of that Paper, our colleague, Mr Conacher, suggested that for barristers the gown, but not the wig, should be retained and the bar jacket, collar and bands should not be required. ¹ He suggested that the Law Society should be asked to consider, in consultation with the judiciary, whether solicitors should wear a special dress in the superior courts. If the Society favoured a gown, consideration should be given to a gown of common pattern for barristers and solicitors, but with some distinction to show that the wearer is either a barrister or a solicitor. Mr Conacher favoured the retention of a distinctive gown for Queen’s Counsel.

10.8 In response to the Discussion Paper, the Law Society referred to the views which it expressed to us in its earlier submission (see paragraph 10.3 above). The Society said that whilst it “does not regard court dress as an important practical issue [it] is of the view that in relation to court dress there should be no distinction between barristers and solicitors.” ¹ The Bar Association’s response to our Paper did not express any views on the question of court dress. Other responses to our Paper vaned from favouring abolition of all special court dress, including gowns, to a preference for retaining status quo. Some agreed that gowns should be retained; others considered that, although barristers’ dress should remain the same, solicitors might wear gowns when appearing in some courts. We mention in the following paragraph some examples of the spectrum of opinion.

10.9 An editorial in the Daily Mirror said: “let’s scrap these preposterous wigs and gowns;” ¹ while an editorial in The Australian “commended” our “suggestion to phase out wigs and butterfly collars”. ² The Australian Legal Workers Group supported abolition of the wig. ³ Mr Justice Needham submitted that, generally speaking, the present position should be retained, although he approved of barristers changing the present collar and bands for “other similar garb” and of solicitors wearing gowns, different from those worn by barristers, in the higher courts. ⁴ The Liberal Party (NSW Division) submitted that “the role played by barrister’s wigs and robes as an expression of the ideals of professional independence and respect for the law [should] be recognised and, accordingly, [should] be retained”. ⁵

B. SOME RELEVANT CONSIDERATIONS

10.10 There are a number of considerations to take into account when deciding whether wigs, gowns or the other accoutrements of present court dress should be retained. We refer to them under the following headings:

(i) formality, solemnity and tradition;

(ii) neatness, uniformity and fairness;

(iii) expense, inconvenience and discomfort;

(iv) the position of solicitor advocates.

Formality, Solemnity and Tradition

10.11 Various points of view on these issues have been summarised in a submission to us by the Law Society. The Society says that

“there is a considerable body of opinion [amongst solicitors] that supports the traditional view that the wearing of wigs and gowns in Court is part of the historical tradition and ceremony of the Courts and has contributed to the dignity of the profession and the respect for both judges and members of the profession.” ¹

The Society refers also to the argument that

“in criminal cases the mystique generated by wigs and gowns adds that extra ‘something’ which helps to maintain and continue respect of the Court, particularly by criminals.” ²

10.12 On the other hand, the Society says that

“there is a considerable body of opinion [amongst solicitors] that feels that the wearing of wigs and gowns or other distinctive dress is archaic and outmoded and cannot be supported in present day society.” ¹

When commending the suggestion in our Discussion Paper that wigs and wing collars should be abolished, an Editorial in The Australian said:

“There was a time when they served a purpose, when the law needed a mystique and to be seen as a higher, greater-than-thou authority.... In the 1980’s the greater need is for law to be seen as contemporary and understanding.” ²

Another argument against the degree of formality and solemnity induced by the present dress of barristers was referred to in the Public Service Board’s submission to us. in the Board’s view:

“The wearing of distinctive dress by barristers results in an unnecessary and (at least, at times) undesirable ceremonial and formal atmosphere in the courts. Such an atmosphere may operate to the disadvantage of witnesses.” ³

10.13 It is relevant to note here the views of Lord Justice McKinnon:

“Wigs are not really part of the legal uniform, as robes are. Wigs are simply a fashion in head dress that was once universal for gentlemen, and was given up by all of them except bishops, judges and barristers, towards the end of the eighteenth century. Bishops, with the permission of William IV, gave them up in 1832, judges and barristers retain them still.... It is because I have thought that a wig is only a masculine fashion, and not a part of the forensic uniform, that I have never felt any scruple upon a very hot day, in removing my wig and inviting counsel to do the like.” ¹

It should also be mentioned that two justices of the High Court of Australia have made a general practice of sitting without a wig, ² although we know of no instances of barristers being invited to remove their wigs in the High Court. In the judicial Committee of the Privy Council, which remains for some Australian cases the highest court of appeal, the judges wear suits without any wig, gown or other special accoutrements.

Neatness, Uniformity and Fairness

10.14 The Bar Association says that barristers

“should be required to wear the same dress so as to avoid distraction as a means of reducing the personal quality which one counsel may have to the prejudice of his opponent. A good looking advocate should not have, thereby, an unconscious advantage. A wig serves to conceal what may be otherwise regarded as an unattractive or conversely an overly attractive feature. Gowns do the same to multi-fareous clothing choice, covering the garish, the vulgar, the ill-taste and the superb raiment of a person of wealth and taste.” ¹

10.15 If the present requirements concerning special court dress were abolished, it might become necessary to have detailed rules about the style and colour of clothes which advocates are permitted to wear. This might lead to invidious and somewhat risible distinctions being drawn between different colours, styles and fashions.

Expense, Inconvenience and Discomfort

10.16 The cost of the present court dress of barristers is substantial. For example, for Queen’s Counsel the cost of a new wig, bar jacket and gown is in the vicinity of $950, $250 and $375 respectively. For other barristers the cost is in the vicinity of $400, $180 and $150 respectively. Shirts with detachable collars are no longer commonly worn as part of every day business dress, even by barristers, and therefore most barristers must buy special shirts which they wear only when in court. On many occasions the superior court in which a barrister is appearing is close to his or her chambers, and the barrister is permitted to wear court dress while walking between court and chambers. But there are many other occasions, especially in relation to the District Court appearances, where barristers must carry their bulky dress to court and change into it in the court precincts.

10.17 The disadvantages to which we have referred in the previous paragraph would be exacerbated if the present court dress for barristers was required also of solicitors. First, the expense would be a special barrier to those solicitors who might be competent and willing to appear as advocates in the higher courts on an occasional basis, but who do not wish to appear in those courts on a regular basis. Secondly, the District Court is more likely than the Supreme Court to be an appropriate venue for solicitor advocates, yet, as we have mentioned, the inconvenience of transporting bulky court dress applies especially to appearances in the District Court, which sits in many places throughout the State.

10.18 The present court dress can be uncomfortable, especially in hot weather. Some judges remove their wigs on extremely hot days, and they may invite those appearing before them to do likewise. But we understand that this practice remains rare, and depends entirely on the particular judge involved. It is relevant to note here that, according to Sir Bernard Sugerman:

“Israel is a country in which the British tradition has been carried on but with the qualification that those ingredients which are uncomfortable in a hot Country -the wig and the starched collar and bands have been dropped; so that the uniform common to both judges and counsel is a black gown worn over a dark suit with a black tie, but without head covering of any kind.” ¹

The Position of Solicitor Advocates

10.19 The Law Society submitted to us:

“Many solicitors... feel that the wearing of wigs and gowns by barristers and judges may operate to discriminate against solicitors who appear in Court in opposition to barristers. Whilst this question is one which has generated a lot of discussion and division of opinion, it is, in the Law Society’s view, a matter of little real importance in relation to the community at large.” ¹

Despite the latter comment, the fact that barristers’ special dress “could operate to the possible disadvantage of the client of a solicitor advocate” ² was one of the principal reasons which the Society gave for submitting that wigs and gowns should be abolished.

10.20 The Public Service Board, having referred in its submission to the distinction in dress between barristers and solicitor advocates, said:

“It may be that the wearing of [the present distinctive dress] by barristers results in some reluctance on the part of some solicitors to appear in the role of an advocate.” ¹

The distinction may also contribute to the view held amongst lawyers and clients that barristers constitute a “senior branch” of the profession, and are necessarily more learned and skilful, at least in relation to the conduct of cases in court, than any solicitor. We referred to these perceptions, and their undesirable consequences, earlier in this Report. ² We also referred earlier to the view expressed to us by a number of solicitors, and by some court officials, that some judges are less favourably disposed towards solicitor advocates than towards barristers. ³ The likelihood of such unfair discrimination occurring is increased by the present distinctions in court dress, indeed, if those distinctions were removed it might become common for judges to be unaware whether an advocate appearing before them is a barrister or a solicitor.

10.21 We recommended in Part II of this Report that all practitioners should be admitted under a common title, such as “barrister and solicitor”. ¹ Implementation of this recommendation would remove the basis for the present distinction in court dress between barristers and solicitors. We also looked at a number of existing distinctions between barristers and solicitors, and we recommended that, even if separate admission is retained, each of these distinctions should be abolished. Implementation of these recommendations would substantially weaken the arguments for retaining a distinction in relation to court dress.

C. OUR VIEWS

Barristers and Solicitors

10.22 In our view, the present distinction between barristers and solicitors in relation to court dress is inappropriate and unfair. It is an undue deterrent to solicitors who are competent and willing to act as advocates in appropriate cases, and it increases the possibility of some judges, jurors and others being less favourably disposed towards solicitor advocates than towards barristers. These consequences can have adverse effects for clients as well as for their solicitors. And whether or not unfairness actually results, many people whose advocates are solicitors, not clad in special dress, cannot but feel that they are disadvantaged if their opponents are represented by barristers who are clad in special dress, particularly when the judge is in similar attire.

10.23 We recommend that the court dress which is required, or permitted, to be worn by advocates appearing before a particular court should not vary according to whether the advocate is a barrister or a solicitor. Nor should it vary according to whether the advocate is subject to the governance of the Bar Council or of the Law Society Council. This recommendation applies not only to whether or not a practitioner wears a particular item of dress, such as a gown, but also to distinctions in relation to the design or colour of a particular item.

The Gown

10.24 In our view, significant advantages can be obtained by requiring advocates to wear a gown. It hides inappropriate dress and thus reduces the need to prescribe what must not be worn. It reduces the likelihood of unfair distinctions being drawn between advocates on the grounds of differing quality or style of dress. It emphasises the seriousness of the business of the courts and lends some support to their dignity and authority. It identifies the wearer as an advocate and thus can be of assistance to other participants in the proceedings. At least in some courts, however, these advantages may be outweighed by the need to avoid excessive formality. At present, for example, gowns are not worn by advocates in courts of petty sessions, the Family Court of Australia, the Land and Environment Court, or in most tribunals.

10.25 We recommend that all practitioners should be required to wear gowns when appearing in the courts of this State in which gowns are presently worn by barristers. But we do not oppose gowns being dispensed with in those courts in particular cases, or being dispensed with in any new court which might be created. This recommendation should be read in the light of the views expressed by one of us, Judge Martin, in paragraph 10.32 below.

The Wig

10.26 In the course of our Legal Profession Inquiry we have seen much evidence of people questioning the relevance and value of many aspects of the legal system. in our view, the wearing of wigs in court contributes towards this tendency to regard the law, and lawyers, as out of touch with the thinking and needs of the community. Moreover, the wearing of wigs can increase the likelihood of some witnesses being so overwhelmed by the formality and strangeness of court proceedings that the accuracy and comprehensibility of their testimony is impaired. Furthermore, wigs are expensive, especially from the point of view of practitioners who are starting their career or who do not appear regularly in the superior courts, and they are uncomfortable for many people, whether in hot or cold weather.

10.27 We have recommended that gowns should continue to be worn. We consider that they provide sufficient formality and solemnity, and a sufficient degree of neatness and uniformity, in the court dress of advocates. Accordingly, we recommend that the wearing of wigs by advocates appearing in the higher courts of this State should be discontinued.

Other Items of Dress

10.28 For many people wing collars are uncomfortable and their use involves a change of shirt before and after appearing in court. Neither they nor neck bands serve any useful purpose. As with wigs, they can contribute to a view that the judicial system, and the legal profession, is to some extent irrelevant to contemporary society. We recommend that wing collars and neck bands should cease to be worn by advocates in court.

10.29 Bar jackets are neat, but they are not cheap and their use requires practitioners to change from their ordinary work-day dress, no matter how neat and formal that dress may be. If bar jackets, but no wing collar or neck bands, were required, the ordinary work-day dress of most male practitioners would enable them to change into court dress without significant inconveniences but the same is less likely to be true for female practitioners. We do not regard it as necessary to require the wearing of the bar jacket in order to ensure that advocates dress in a manner appropriate to the seriousness of court proceedings. Accordingly, in view of their disadvantages, we recommend that bar jackets should no longer be worn by advocates in the courts of this State.

Queen’s Counsel

10.30 The recommendations which we have made apply to Queen’s Counsel as much as to other advocates. But we see no objection to Queen’s Counsel continuing to wear a gown of different material and design from that which is worn by other advocates.

Federal Courts and Tribunals

10.31 As a State body, it is beyond our function to make recommendations in relation to the court dress to be worn by advocates appearing in Federal courts or tribunals.

A Further Step?

10.32 Judge Martin joins in the above recommendations on the ground that their implementation would constitute a substantial improvement on the present position. But he considers that a greater improvement would result from abolishing the gown as well as the wig and other items of the present court dress. He considers it important that lawyers should cease to wear headdress and outer wear fashionable in a past century and carrying the suggestion that justice can only be done by the initiates of an ancient mystery. On the contrary they should dress in the ordinary fashion of the day, as litigants, witnesses and jurors do, in order to show that the doing of justice, though an arduous task in which training may help greatly, is nevertheless a down-to-earth one free from mystique and not incapable of being understood by ordinary people. He agrees with that committee of the Auckland District Law Society ¹ which wrote that courts do not exist to provide archaic pageants but to resolve disputes and every effort should be made to show that they are modern, business-like places rather than ones removed from the mainstream of society.

Para.
10.2	1 Submission No.80 (“Division of the Legal Profession into Two Branches”), p.136.
	2. New South Wales Bar Notes, (May, 1977), p.5.
	3. Oral Evidence to the Royal Commission on Legal Services, (London, 1977), p.7.
10.3	1. Submission No.219 (“The Solicitors and Barristers Branches of the Legal profession”), p.18.
	2. Id.
	3. Submission No.88, p.1.
10.4	1. See Royal Commission on Legal Services, Report (1979, Cmnd.7648), paras.33.95-33.96.
10.5	1. See Royal Commission on the Courts, Report (Government Printer, Wellington, 1978), pp.272- 275.
	2. But see the discussion in the Report of the Royal Commission on Legal Services in England and Wales (Cmnd.7648), paras.33.94-33.100.
10.6	1. Part I, chapter 9.
10.7	1. Part II, pp.371-372, 448-449.
10.8	1. Submission No.402 (“The Structure of the Profession”), p.44.
10.9	1. 16th June, 1981, p.11.
	2. 16th June, 1981, p.7.
	3. Press Release, 15th June, 1981.
	4. Submission No.405, pp.19-23 and Appendix.
	5. Submission No.404, p.5.
10.11	1. Submission No.219 (“‘The Solicitors and Barristers Branches of the Legal profession”), p.18.
	2. Id.
10.12	1. Id.
	2. 16th June, 1981, p.7.
	3. Submission No.88, p.1.
10.13	1. “Wig or Biretta: Miss Buzfuz - or Portia” (1945) Law Quarterly Review, vol.61, p.12 at 12.
	2. Mr Justice Murphy and Mr Justice Starke.
10.14	1. Submission No.80 (“Division of the Legal Profession into Two Braches”), p.130.
10.18	1. “The Wearing of the Wig”, (1973) Australian Law Journal, vol.47, p.39.
10.19	1. Submission No.219 (“The Solicitors and Barristers Branches of the Legal Profession”), p.18.
	2. Id.
10.20	1. Submission No.88, p.1.
	2. Paragraphs 3.55, 6.90-6.91.
	3. Paragraphs 6-88-6.89.
10.21	1. paragraphs 4.7-4.9.
	2. Chapters 4 and 6.
10.32	1. Committee on public Issues, “Lawyers, Wigs and Gowns” (1979).