Lodging reports anonymously and/or as a bystander can help eliminate sexual harassment, discrimination or workplace bullying in Australia’s legal profession, writes Penny Thew.
Recent and historical data discloses an alarming, systemic culture of sexual harassment, discrimination and bullying within the Australian legal profession, highlighted in the May 2019 International Bar Association report, entitled Us Too? Bullying and Harassment in the Legal Profession. The opening words to the executive summary of the IBA report are “[t]he legal profession has a problem”, words that are supported by the stark data revealed.
The IBA report disclosed that Australian legal professionals reported significantly higher rates of sexual harassment and workplace bullying than other countries, with almost half of Australian women respondents and 13 per cent of men reporting that they had been sexually harassed. The IBA report concluded that “bullying and sexual harassment are rife in Australian legal workplaces”.
In 2014, the Law Council of Australia National Attrition and Re-engagement Study Report, or NARS report, showed that 55 per cent of all practising women barristers surveyed across Australia had experienced sexual harassment, and 80 per cent had experienced bullying or intimidation. The subject of the statement issued on 22 June 2020 by the Honourable Susan Kiefel AC, Chief Justice of Australia, regarding former High Court judge Dyson Heydon, without commenting on the particulars of any individual case, again draws attention to this persistent problem.
How can anonymous, confidential reports be made?
Rule 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 prohibits barristers engaging in conduct that constitutes sexual harassment, discrimination and/or workplace bullying, as defined in rule 125. Similarly, rule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 prohibits solicitors engaging in such conduct.
As co-regulator of the legal profession in NSW, the Office of the Legal Services Commissioner is empowered to deal with conduct alleged to constitute a breach of either the Barristers’ Conduct Rules or the Solicitors’ Conduct Rules. In response to the recommendations in the IBA report, in June 2019 the OLSC called for “disclosures of” sexual harassment and bullying in the legal profession. In line with this call for reporting, the OLSC webpage provides links for bystander witnesses to report, for anonymous, confidential (informal) reports, for informal notifications by those who are subject to, or targets of, conduct and for formal complaints.
The OLSC launched an information sheet providing a guide to reporting bullying, sexual harassment or discrimination from anyone with knowledge of it and states that law practices and those who practise from barristers’ chambers “have an obligation to prevent a culture of harassment and bullying”.
Who can make a complaint or anonymous report?
Significantly, any person can make a complaint, or anonymous report, about the alleged breach by a barrister of rule 123 of the Barristers’ Conduct Rules or alleged breach by a solicitor of rule 42 of the Solicitors’ Conduct Rules.
While formal complaints, which lead to investigation and may result in disciplinary action, cannot be made anonymously, informal reporting of knowledge by bystander witnesses, those who are targeted and even those who have knowledge of an alleged breach of the Barristers’ or Solicitors’ Conduct Rules are anonymous and confidential. Given the most commonly cited reason for individuals not reporting, according to the IBA report, is fear of repercussion and a lack of confidence in reporting procedures, the ability for bystander witnesses, those who have knowledge of and those who are the targets of or subject to sexual harassment, discrimination and/or bullying to report anonymously is crucial.
Penny Thew is a barrister at Greenway Chambers and is a tribunal member at the NSW Civil and Administrative Tribunal.