Bills

Statutes Amendment (Legal Profession Review Recommendations) Bill

Introduction and First Reading

The Hon. C. BONAROS (16:44): Obtained leave and introduced a bill for an act to amend the Judicial Conduct Commissioner Act 2015 and the Legal Practitioners Act 1981. Read a first time.

Second Reading

The Hon. C. BONAROS (16:44): I move:

That this bill be now read a second time.

I have another release here which I could also read in full which would summarise the need for these reforms, except this time the media release is actually signed off by the chief judicial officers of the court, who thank the Commissioner for Equal Opportunity for undertaking and reporting on the review of harassment in the South Australian legal profession and the important work which will guide ongoing efforts to put an end to harassment in all its forms.

The bill that I am introducing today seeks to implement the legislative reform recommendations from the commission's 2024 review of harassment into the legal profession. The review followed the 2021 inquiry into harassment within the legal profession. While the equal opportunity commissioner, Ms Jodeen Carney, noted that there have been positive steps forward since the initial review, it was noted unlawful behaviours remain prevalent and victims continue to distrust complaints bodies and pathways—the subject of another debate we had in this place yesterday, particularly in relation to the chilling effect on victims in terms of actually making complaints in the first place.

The findings from the 2024 review continue to be deeply concerning. More than half of the survey respondents reported experiencing sexual harassment, discrimination or bullying in the workplace over the past three years, with one in two also having witnessed that sort of behaviour. Alarmingly, almost 73 per cent of those affected were women. Bullying was the most frequently reported behaviour affecting nearly two in five respondents, discrimination was experienced by one in five and sexual harassment was reported by three in 20. Harassment overwhelmingly occurred in the victim's workplace, but two in five who reported experiencing sexual harassment said it happened at work-related events. Bullying was most commonly reported in offices, social media or during legal proceedings.

The latest review has provided us with 14 recommendations for reform, and while some require further consultation or fall outside the legislative sphere, this bill addresses the clear legislative reform needed to establish better protections and improve accountability. Clause 7 amends the Legal Practitioners Act 1981 to empower the Legal Practitioner Conduct Commissioner to impose interim conditions on a practitioner's certificate where the commissioner determines that the practitioner poses a serious risk to others, that restrictions are necessary to protect public health and safety or that such action is in the public interest.

Currently, while complaints can be lodged through a more user-friendly online portal, the commissioner cannot take interim steps to mitigate risks while an investigation is ongoing. That is a critical element of this bill. In contrast, health practitioners are always already subject to immediate action powers in similar circumstances where there are risks. Victims have recorded feeling frustrated that while their complaints were being investigated the harassers remain unrestricted in the workplace. The bill provides a necessary safeguard to address that gap.

Clause 8 of the bill amends the Legal Practitioners Act to ensure that the South Australian Bar Association has similar reporting obligations as those that already apply to the Law Society of South Australia. This is intended to make sure that certain reports of suspected bullying, discrimination, sexual harassment by barristers or about barristers are, indeed, referred to the commissioner. Additionally, when a referral is made by the bar or the Law Society, the complainant must be informed of the referral and any subsequent action unless they have expressly stated they do not wish to be contacted further.

The Law Society indicated it is generally supportive of the proposal to keep complainants informed, in its response to the most recent review, so this amendment seeks to address concerns raised during the review where individuals who lodge complaints with the Bar Association were actually unaware of whether their complaints had been referred to the commissioner or not. That is not a good outcome for somebody who finally comes up with the courage to go and make one of these complaints, only to be left in the dark about what happens to it post making that complaint. It is only reasonable that reporting obligations be consistent across both the legal professional bodies.

Further amendments address ongoing reports of inappropriate conduct by members of the judiciary, both current and former. The review found that 20 per cent of respondents who reported bullying, 10 per cent who reported discrimination and 9 per cent who reported sexual harassment identified a judicial officer as the perpetrator, and we have precedents now in this jurisdiction of successful prosecutions with respect to the same.

These figures are deeply troubling. I have previously spoken about how courageous it is for anyone to come out and make such a complaint, particularly when you are complaining against a member of the judiciary. The facts are that only 5 per cent of victims reported their experience to an external complaint, with just 1 per cent lodging a sexual harassment complaint, and one of the key reasons cited for this low reporting was fear of repercussions.

Disappointingly, this government failed to show leadership on this issue yesterday—just yesterday—in this place when it refused to commit to extending absolute privilege to complaints such as these made to the appropriate oversight bodies. That same chilling effect that the Attorney spoke of yesterday in this place under a different piece of legislation needs to be addressed appropriately, and that is what these amendments intend to achieve, because the lack of action otherwise absolutely fails those victims who are (a) afraid to speak out or (b) find the courage within themselves to make a complaint in the circumstances.

Clause 5 of the bill implements recommendation 12, requiring the Judicial Conduct Commissioner to establish judicial conduct guidelines to ensure both the legal profession and the public have a clear understanding of the expected standards of conduct and the consequences for breaches. We do not have any such enforceable guidelines here at the moment. One review respondent described judicial counselling as nothing more than a fireside chat; meanwhile, Victoria has already adopted judicial conduct guidelines based on those published by the Council of Chief Justices of Australia and New Zealand, and the review recommends that we do precisely the same.

Finally, clause 3 of the bill addresses recommendation 13, empowering the Judicial Conduct Commissioner to investigate allegations of misconduct against former judicial officers. The act currently requires mandatory dismissal of complaints against alleged perpetrators who are no longer serving on the bench. This creates a perverse incentive for resignation as a means to evade scrutiny, an outcome that can be both unjust and deeply unfair to victims.

In the event that the Judicial Conduct Commissioner elected not to proceed with an investigation, all records would be transferred to the Legal Profession Conduct Commissioner, who would then be able to determine whether further action is warranted under the amendment. It provides a safeguard; should a former judicial officer return to legal practice, any outstanding complaints could still be investigated.

The bill does not claim to complete the work that remains to be done, by any stretch, in addressing harassment, discrimination and bullying in the legal profession, but I think now at a national level, especially given what we have seen transpire in the High Court over recent years, and at a state level in terms of what we have seen transpire here in our own jurisdiction, it is absolutely critical that we get on with the job of fixing this.

There is no point in having a commissioner who does all this work, lifts the bandaid, shows us what the problems are—and that removes a whole lot of pressure from the judiciary itself in terms of that culture—and then does nothing about it. So the bill seeks to ensure that we actually now do something about it by implementing those four recommendations at the very least.

It is a necessary step towards protecting victims, ensuring accountability and making real progress in eliminating unacceptable behaviour from our legal workplaces. It in line with other sorts of things that we have tried to do in this place and others, and I hope that the government, the opposition and the crossbench can see sense in ensuring that that important body of work we have asked the commissioner to do results in the passing of these really important reforms.

Debate adjourned on motion of Hon. I.K. Hunter.