You’d think the Law Society of NSW would know better. After all, the guild had a chance in the late 1990s to control the destiny of how those responsible for committing acts of harassment and discrimination would be punished.
History shows that a continued reluctance to take a big stick to racist, sexist and generally intolerant members resulted in lawyers losing a grip on the wheel. Instead of effectively regulating themselves, which according to most lawyers is the way it should be, NSW Attorney-General Bob Debus stepped in and initiated reform via the Legal Profession Act.
To this very day, some lawyers are still bitter about politicians making enforced changes to the rules that govern their behaviour. “Surely we should know what’s best for own!” they cried.
Debus didn’t agree. Resisting high profile opposition and siding with what was perceived to be a vocal minority, he amended the Act to ensure that lawyers guilty of workplace discrimination, harassment and other unsafe practices could be charged with professional misconduct and consequently face the possibility of being struck from the roll.
Years after the changes, the profession managed to survive and all records show it maintained about 18,000 solicitors in early 2002. It was at that time another menace to harmonious practice in law firms emerged.
Whilst anecdotal and hard data obtained by the Law Society’s annual salary and workplace conditions surveys tracked a drop in harassment and discrimination incidence, a parallel rise in bullying was being noted.
The sustained increase in distressing stories, one of which told of a female employee taunted with a condom filled with a mysterious white substance, could not be ignored any longer by those elected to ensure such behaviour be minimised.
Late last year the Society’s Equal Employment Opportunity (EEO) committee, with the help of the Young Lawyers (YL) section, finalised a paper recommending a number of strategies to combat bullying.
Presumably drawing upon the experience provided by the harassment and discrimination debacle, the paper advised that bullying be added to the professional misconduct list. Despite taking months to produce, it was knocked back by council on first sighting in November 2002. The elders said they wanted more information about how to act, a more extensive rationale for the proposed definition, and a better presentation of the state of Australian law on bullying.
In June this year the paper was revamped and resurrected. But just as it was about to see the light of day, it was re-tombed. Not all were happy with the definition and for the next three months further consultation was had.
Finally last week, after a total of 10 months, council sat down to determine what to do with this increasingly troublesome dossier. Twelve recommendations were put forth and the first eleven were duly approved.
But, as they say in the classics — if not the epics — the best was saved for last. The twelfth and final action plan was — of course — the old chestnut: professional misconduct.
How council handled the vigorous competing views on this most controversial recommendation showed, that to some extent, they had learnt a lesson. Thinking the profession is “over regulated” enough some wanted to dispense with the idea … again. Others pointed to the statistics showing professional misconduct sanctions had worked.
Faced with such an impasse, the council retreated in an interesting manner. Instead of scrapping the proposal entirely, it elected to continue to examine the merits. President Robert Benjamin, burdened for much of his term with concerns over how to smoothly implement voluntary membership, wants a consensus, or something at least resembling one.
So, for the next 12 months NSW lawyers of all shapes and sizes will be closely quizzed on their attitudes to being liable to be struck from the roll if found guilty of bullying. By deciding thus the Society has effectively drawn a line in the sand. Come September 2004, people will be expecting answers and Debus will no doubt be one of them. As the paper’s course continued to be frustrated, several of its supporters spoke of approaching the Government again if stalling tactics continued. They are confident politicians are more likely to intervene now having done so already.
Benjamin knows this and plays a peace keeping role of which Kofi Annan would be proud. “Some lawyers didn’t like it when the discrimination and harassment regulations were passed,” he said. “They blamed us [the society] for conditions being thrust upon them by the Attorney-General.”
“We now have a sense of what to do. The Society has to bring this along in the right way.”
The powerbrokers have acted to a certain extent and are considering going further. For the moment they cannot be accused of sitting idle.
Another year has been bought, but delaying the issue may well be a double-edged sword for those wishing bullying would go away. YL and EEO have come too far to forget and it can be guaranteed that, with a further 365 days up their sleeves, the evidence supporting reform will only grow.
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