Report on the National Round Table Meeting of the Law Council of Australia Addressing Sexual Harassment in the Legal Profession

On the 8^th of July 2020, Peter Roney QC, along with 36 other participants from various branches of the profession, attended the National Round Table Meeting of the Law Council of Australia addressing sexual harassment in the legal profession. Attendees also included the Chairs of equal opportunity, inclusion and diversity representatives from legal professional associations, regulators, women lawyers’ associations, law student representatives and the Sex Discrimination Commissioner. The only other participant from Queensland was Megan Mahon, the current Legal Services Commissioner in Queensland. The outcomes of the meeting will be published at a later date.

The aim of the Roundtable was to provide a conducive forum for those with relevant expertise to refine policy positions for specific legislative reforms and to further develop approaches that can be adopted within the legal profession to address sexual harassment.

The meeting went over several hours and there were contributions from a wide range of individuals who were represented. It was observed that numerous sources of statistics relating to the prevalence of sexual harassment within the Australian legal profession have been published, including:

• In 2007, the Law Society of Tasmania’s Employment and Equal Opportunity Committee’s survey on sexual harassment and inappropriate workplace behaviour in the local legal profession, completed by 132 men and 89 women, where 47 respondents (that is, 21%) stated they had been subjected to inappropriate workplace behaviour;

• In 2012, Changing the Rules: The Experiences of Female Lawyers in Victoria where 24% of the female lawyers who responded to the survey reported having experienced sexual harassment;

• In 2014, the National Attrition and Re-engagement Study (NARS) Report where 24% of the female lawyers and 8% of the male lawyers who responded to the survey reported having experienced sexual harassment;

• In 2017, the International Bar Association’s Women in Commercial Legal Practice where 27% of the female lawyers and 7% of the male lawyers who responded to the survey reported having experienced sexual harassment;

• In 2018, the Victorian Bar’s Quality of Working Life Survey where 16% of the female barristers and 2% of the male barristers who responded to the survey reported having experienced sexual harassment;

• In 2018, the Women Lawyers Association New South Wales survey of 242 respondents, 96% of which were women, where 71% of respondents reported having experienced sexual harassment;

• In 2018, the NSW Young Lawyers Human Rights Committee’s survey on the incidence of sexual harassment in the legal profession, distributed to the NSW Young Lawyers membership, where 51% of the respondents reported having experienced sexual harassment.

It was recognised that lawyers who experience sexual harassment in the workplace are reluctant to make a formal report or complaint. Changing the Rules found that 66% of women lawyers who experienced workplace sexual harassment in Victoria did not make a complaint, and 29% did not tell anyone at all. A recent survey of young lawyers in New South Wales found that, of the 51% who disclosed experiencing sexual harassment, less than 30% made a complaint. The IBA is reporting that 77% of sexual harassment cases in legal workplaces across Australia go unreported.

Reasons for low rates of reporting of sexual harassment within the legal profession were identified as including that people:

• ‘did not think that anything would happen so there was no point in complaining’;

• ‘lack of confidence in protocols’;

• ‘little perceived benefit in reporting sexual harassment’;

• ‘did (informally) report to the CEO and the President … nothing was done and I no longer work there’;

• fear repercussions;

• ‘were concerned about negative repercussions for their career; and they were concerned their reputation would be negatively affected’;

• ‘were concerned there would be negative repercussions for their career … that their reputation in the legal profession would be jeopardised … they would lose career opportunities … they would be ostracised … demoted … transferred …’;

• ‘… [they] were too terrified of the repercussions … Each had peers warn them not to report the situation in case whistleblowers were treated unfavourably …’;

• ‘on the one occasion I did I found myself ostracised and then made redundant’;

• The perpetrator has been promoted and their conduct has been dismissed as ‘just what boys do’;

• ‘incidents being endemic to the workplace’;

• ‘did not think that the matter was serious enough to warrant a complaint’;

• ‘I was an article clerk and he was pretty senior. I didn’t mention it as, at the time, it was the sort of thing that people joked about and you were supposed to take in your stride’;

• ‘because in my experience the harasser has been a senior associate or partner, making comments or jokes they think are fine, and making a complaint would just label you as sensitive or weak or not having a sense of humour …’;
  
• ‘The behaviour was pretty openly displayed and accepted by all. I felt uncomfortable about it but as a graduate there was not much I could do and the behaviour seemed tolerated at the top’;

• ‘felt that the complaint process was too daunting’; and

• ‘It could escalate beyond what I would feel comfortable with. Also hard to establish evidence.’

As it stands the existing regulatory framework applying to lawyers sets out a number of core standards to be observed. Lawyers are subject to professional and statutory obligations that are designed to promote the highest standards of professional conduct and ethical standards in the provision of legal services to clients. Generally, these obligations are set by legal profession legislation such as the Legal Profession Uniform Law (Uniform Law) and the Legal Profession Acts in each state.  While some variation still exists between the aforementioned Legal Profession Acts, some states participate in the Uniform Law scheme, where the Uniform Law and the Uniform Rules are applied in both those participating jurisdictions by local application Acts.

The regulation of the legal profession is overseen by the relevant designated local regulatory authorities in each state or territory.

In addition to any avenues under federal or state workplace or discrimination law, complaints regarding sexual harassment can be made to the relevant designated local regulatory authority as a breach of Australian Solicitors’ Conduct Rules (ASCR). The ASCR were endorsed by Law Council Directors in June 2011 and have been adopted as the professional conduct rules for solicitors in: South Australia, Queensland, New South Wales and Victoria (and shortly Western Australia), and the Australian Capital Territory.

Similarly, the Australian Bar Association (ABA) has developed professional conduct rules, which have existed in various iterations since 1993. The National Conduct Rules were implemented in New South Wales and Victoria, Queensland, South Australia, Western Australia, and Tasmania. The Northern Territory has maintained earlier conduct rules. Relevantly, rule 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 states:

123 A barrister must not in the course of practice, engage in conduct which constitutes:

• discrimination,
• sexual harassment, or
• workplace bullying.

A number of options were developed and discussed to attempt to address sexual harassment in the legal profession in light of recent events. At the end of last year and this year, the Law Council’s Equal Opportunity Committee, with the assistance of Peter Roney QC, engaged in internal consultations to develop practical solutions to sexual harassment in the legal profession. It involved developing a national model sexual harassment policy and guidelines.

There was a consensus that the Law Council should develop national guidelines on sexual harassment, and that these would be developed in close consultation with stake holders, including constituent bodies such as the Bar Association of Queensland.

There was also consensus on developing a centralised source of information and a suit of educational tools which highlighted relevant resources and services currently available through the various constituent bodies and national initiatives.

Facilitated Consistent Complaints Process

There was consensus that the Law Council had a role to play in ensuring information about effective complaints processes, and to facilitate ongoing development of best practice procedures on this issue.

Complaints regarding sexual harassment can be made to the relevant local Legal Services Commission in each state, including in Queensland. The Legal Services Commissioner and other equivalent Commissioners in other states and territories have stated that in effect,  there just aren’t any complaints. Individuals are not willing to come forward to make those complaints, and that was understandable having regard to the fact that there are very often negative consequences for those individuals who make those complaints. The ACT Bar currently has an anonymised complaint and report form, and the Victorian Bar has an internal confidential complaint and report grievance process. There is currently no such process in Queensland and most of the other states.

There will be therefore, some knowledge sharing between the various professional associations to work with understanding the complaints processes that are known to work, and develop options for alternative processes on this issue.

Professional Development Training

There was a broad consensus that the Law Council support constituent bodies in developing continuing professional development (CPD) materials and training and encouraging, in some cases, compulsory CPD’s on this issue.

The Law Society of Western Australia endorsed the Australian Women Lawyers ‘Seven Strategies to Addressing Sexual Harassment in the Legal Profession’. The discussion was around whether the inclusion of the CPD would be compulsory or elective. The feeling is it is likely to be an elective.

There was very clear concern, however, that those who might be most likely to require a change in attitude in this area, might not receive the necessary training.

Judges’ Associates

There was also broad discussion about the role of Judges’ Associates, the role of those Associates, that despite the fact they were employed by the state or Commonwealth, that they were seen, in some cases, to be some sort of personal assistant to the judges, and the problems that causes.

Amendment to the Sex Discrimination Act 1984

There was also in this context, agreement to support the amendment to the Sex Discrimination Act 1984 (Cth) to prohibit entirely sexual harassment of another person, in any environment, not just the work environment as is presently the situation, or in the provision of services. There was some discussion about the prospect that this could full fail of difficulties. Constitutionally, however, it is thought that these could be overcome.

Interestingly, the proposed redraft of section 28A of the Sex Discrimination Act 1984 (Cth) effectively adopts the language which defines sexual harassment and the circumstances in which it is prohibited under the Anti-discrimination Act 1991 in Queensland, which is the only act in Australia which prohibits sexual harassment outright, in any environment, whether work, public or whatever.

The focus of the prohibition is on defining sexual harassment as making unwelcome sexual advancements or requests for sexual favours, engaging in unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

The circumstances to be taken into account in relation to the latter issue include the sex age, sexual orientation, marital or relationship status of the individual as well as other matters. For the first time conduct of sexual nature would include the making of a statement, not other blatant sexual conduct.

Going forward

The Roundtable acknowledged that law reform must be accompanied by cultural change in the legal profession, which could be achieved through measures including: a national model sexual harassment policy and guidelines; a centralised source of information and suite of educational tools; the facilitation of consistent complaints processes across Australia; and the development of appropriate training.

There was also consensus that the establishment of a Federal Judicial Commission — long called for by the Law Council — has merit.

The Law Council will now developing a blueprint for addressing sexual harassment in the legal profession, based upon the above agreed measures, in consultation with our constituent bodies and relevant stakeholders. The Law Council has also been in discussions with the federal courts about the development of a Judicial Protocol addressing judicial conduct setting out a procedure whereby all lawyers may raise concerns about the conduct of a judicial officer. A draft Protocol has recently been provided to the Court for discussion and the Law Council will progress that avenue in addition to the measures discussed at the Roundtable.