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Professional bodies ‘failing’ to step up on sexual harassment

In the wake of the announcement of a national workplace sexual harassment inquiry, one HR consultant says the legal services commissions and law societies must more actively police and enforce codes of professional conduct.

user iconJerome Doraisamy 22 June 2018 Big Law
Hand stop, sexual harassment, professional bodies
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PsychSafe founder and principal consultant Dr Rebecca Michalak has levelled criticism at the failure by Australia’s legal professional bodies to seize opportunities to rid the profession of perpetrators, widening the gap between rhetoric and reality on sexual harassment.

Speaking to Lawyers Weekly, Dr Michalak said research consistently showed that the overwhelming majority of victims, around 90 per cent, do not formally report harassment, be it to their employer or an external body, and thus waiting for complaints to be made before acting represented a failure to use existing power to deter such misconduct.

“Various data already demonstrates these behaviours are widespread,” she said.

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“Codes and policies prohibiting it are necessary but insufficient in isolation … when it is known victims typically do not complain for various and validated reasons, including fear of negative professional outcomes and reprisal behaviours, simply pointing to a code’s existence and encouraging lawyers to make a complaint is an ineffective approach to the issue.”

Bodies such as the various legal services commissions and law societies must “step up and flex their muscles”, Dr Michalak argued, by proactively acting when evidence suggests a lawyer is not behaving in ways consistent with being a “fit and proper person” or indicative of “good fame and character”.

“These bodies continue to rely on fearful profession members, victims, the upset public, the media or, indeed, offending lawyers themselves, to trigger the action,” she explained.

“It is unclear why they are not doing more to require firms to report poor professional conduct of current or past employees (or face disciplinary action) and have not increased their ‘own motion’ activities to vigorously target poor personal conduct.”

Undertaking own motions would, Dr Michalak said, send a “clear message that theses bodies are actively engaged with their critical role as guardians of the ethics and reputation of the profession”, while being committed to looking after members’ best interests.

And, with the Human Rights Commission inquiry into sexual harassment in workplaces having just been announced, professional bodies and regulators who don’t use their capacity to address issues have been placed on notice, she added.

Legal professional bodies can, moving forward, play a “vital role” in filling the gap and helping generate change, she proffered.

“[In Queensland and NSW, for example], the legal services commissioners have the capacity to initiate an investigation without a complaint, such as when the external whistle has been blown and the alleged unprofessional conduct has been reported in the media,” Dr Michalak said.

“In not harnessing the power of their jurisdiction over all practicing members and triggering their own investigations, these bodies are part of the problem, when they should be a key part of the solution.

“Waiting for a complaint from a vulnerable party, who may have already taken a large risk and not had an outcome within their firm, is not good enough.”

The focus for these bodies must now shift, she posited, away from data gathering and towards problem-solving.

“We already have plenty of reliable, valid information on what can be done to at least start resolving these issues. Many evidence-based recommendations have been playing on repeat for years,” Dr Michalak concluded.

“These recommendations just need to be adopted. Not at some point in the future – now.”

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