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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-22 Daily Xml
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Legal Profession, Harassment

The Hon. C. BONAROS (17:31): I move:

That this council calls on the Attorney-General, within three months of the passing of this motion, to instigate an independent inquiry by the equal opportunity commissioner into the prevalence of harassment, including sexual harassment, in the legal profession in South Australia and to report to the parliament on the following matters:

1. The adequacy of existing laws, policies, structures and complaint mechanisms relating to harassment, including sexual harassment, in the South Australian legal profession; and

2. Improvements that may be made to existing laws, policies, structures and complaint mechanisms relating to harassment, including sexual harassment, in the South Australian legal profession.

And that the inquiry into the above matters include consideration of, but not be limited to, the following:

(a) identifying measures to implement policies and procedures to appropriately address the issue, including the development of clear and enforceable standards of appropriate conduct;

(b) considering the establishment of an independent complaints body as a mechanism for individuals to make complaints in a confidential and supportive environment with appropriate legal protections against recrimination;

(c) ensuring any independent complaints body:

(i) has a diverse membership;

(ii) is transparent in its processes;

(iii) has appropriate investigative powers;

(iv) consults widely with a broad range of stakeholders; and

(v) provides for appropriate avenues of redress in the event a complaint is made out.

(d) consider any other relevant matters.

As we know, the reputation of the Australian legal profession is in absolute tatters following revelations that former High Court justice, Dyson Heydon, subjected six of his associates to sexual harassment. Just to put that into some sort of context, that is a judge presiding in the highest court in the land being found to have sexually harassed his junior staff. It is reprehensible and abhorrent behaviour. It has opened a can of worms throughout the legal fraternity, with genuine, real fears that if a High Court judge has sexually harassed staff just how widespread is this problem?

That is why this motion is calling for South Australia's legal profession to be put under the microscope by a comprehensive independent inquiry into harassment, specifically including sexual harassment. Sadly, I think you would be hard-pressed to find a lawyer who at one time or another throughout their career has not been subjected to some level of harassment. I think you would be hard-pressed to find a female member of the profession who has not been subjected to some form of sexual harassment or whose staff have not been subjected to the same improper conduct.

That is a big statement. It is a huge statement, but frankly I know that I am not alone in recounting countless discussions, with women in particular, over what has come to be accepted in some ways as a norm in the profession. It is something I have experienced, my friends have experienced and many of our colleagues have experienced, and it is something that goes on unaddressed or that is swept under the carpet.

As has been reported, there is a vacuum within the legal profession that allows inappropriate conduct to go unaddressed. It is, as Professor Appleby from the University of New South Wales has highlighted, a professional culture many of us have lived and observed, a culture that tolerates sexual predation amongst other forms of inappropriate behaviour.

It is my firm view that a thorough and transparent inquiry, to be undertaken by the equal opportunity commissioner, Dr Niki Vincent, is imperative, following the disturbing revelation that an investigation commissioned by the High Court found that one of its own sexually harassed six young female associates when he was on the court. The community has every right to expect its lawmakers to be subject to the very same laws they make for everybody else. There should not be, and there cannot be, one law for the common person and another for judges or lawyers, or anyone else for that matter. As with MPs, the Equal Opportunity Act makes no provision for complaints of sexual harassment between members of the judiciary, and this is unequivocally wrong.

As I have said, the reputation of Australia's legal profession has been rocked, with the revelations that one of our former High Court judges sexually harassed six of his associates. It led to the Chief Justice of the High Court taking the unprecedented and bold step of issuing a public statement on behalf of the High Court. In her statement, Chief Justice Kiefel said:

The findings are of extreme concern to me, my fellow justices, our chief executive and the staff of the court. We are ashamed that this could have happened at the High Court of Australia.

We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed.

The Chief Justice acknowledged one of the worst kept secrets, that the legal profession is rife with sexual harassment. The profession already had a bad name before the latest allegations surfaced. If we cannot expect it from the top of the profession, from a person who sits in judgement of others, the alarm bells are ringing as loud as they possibly can.

In South Australia, we know only too well that when a member of the legal profession chooses to speak out against sexual harassment they run the very real risk of being dragged through disciplinary proceedings for bringing their profession into disrepute. It taints, as I said previously in their place, their reputation forever, for something they did not ask for and something they are not to blame for. They are the victims, let's not forget that.

We cannot afford to continue to provide excuses for certain people occupying positions of power, and we certainly cannot continue to tell members of the legal profession, or any other profession for that matter, not to rock the boat because it may be detrimental to their career progression. We cannot continue to accept that this behaviour goes on unaddressed. We cannot continue to sit idly by as it happens. None of us should be above the law, but those laws must meet community expectations.

Today, more than ever, there is no question that an investigation into the professional body is absolutely required. We have reached a tipping point on this issue. As I have said before in this place, the standard you walk past is the standard you accept. Bullying behaviour is a troubling and persistent feature of modern day legal practice. Gender imbalance continues to dominate legal offices and chambers, and we know sexual harassment is rife in the legal profession.

We know that women experience it more than men. We know that men are, more often than not, the culprits of that behaviour. We know that behaviour is not typically isolated; rather, it is more likely to be part of a pattern or a series of events. It is a conversation that has been going on and on for too long. We know it is a significant problem; something must be done. The Chief Justice of the High Court has confirmed the extent of the problem within her own ranks. It seems we cannot even expect restraint from the highest court in the land. If we cannot expect it from the top of the profession, from a person who sits in judgement of others, as I said before, the alarm bells should be ringing as loudly as they can.

In an open letter to the federal Attorney-General, Christian Porter, some 500 working female lawyers in the law called for substantive changes to protect members of the profession. In that letter they said:

We believe the abuse the allegations raise provides an important opportunity to implement wider reforms to address the high incidence of sexual harassment, assault and misconduct in the legal profession. Deep cultural shifts in how men treat women in the law are required, as well as reforms to prevent the manifestations of what many fear may be institutionalised sexism that has allowed this culture to continue. We must reach a position where all people, regardless of their sex, sexual orientation, gender, gender identity, intersex status, age, race, ethnicity or disability, are treated with equal professional dignity. Of course, no single reform can achieve these shifts, and we understand many different forms of change must be pursued.

The signatories encourage the creation of an independent complaints authority, amongst other things. As we know, this issue is not limited to harassment of a sexual kind; in fact, it is not even limited to harassment. The profession is competitive and it is hierarchical. There are strong power gender imbalances in the workplace, and there are issues around all of those matters that I have just outlined in terms of status, age, race, ethnicity, disability, gender identity and sexual orientation.

On 26 June, the Law Society of South Australia praised the High Court for the manner in which it dealt with the recent allegations via a media release. The president, Mr Tim White, said:

We hope it will give those in the profession who have been subject to sexual harassment the confidence to speak out, and for their complaints to be taken seriously and be subject to just processes.

He went on to say:

The Law Society, through participation in and conduct of local, national and global surveys, and through the work of its various dedicated committees and taskforces, is acutely aware that sexual harassment is a significant problem in the profession across Australia.

We also know that a disproportionate number of victims are women in junior roles, and that harassment often occurs in circumstances where there is a power imbalance between the victim and the perpetrator. It is clear, too, that victims of sexual harassment often face an invidious situation where, if they speak out about the mistreatment suffered, they risk personal and career repercussions.

Mr White urged all practices to adopt the Law Council's diversity and equality charter, as the Law Society itself did in 2015. But I am afraid that words are not enough. It is a one-page document and it is simply not enough. Despite discrimination, bullying and sexual harassment being contrary to the solicitors' conduct rules and barristers' conduct rules, it still continues. This behaviour is rife. Despite there being a Legal Practitioner Conduct Commissioner and a Judicial Conduct Commissioner, it still continues. This behaviour is rife, and it needs to end.

In May 2019, the International Bar Association's legal policy and research unit delivered a report on sexual harassment in the workplace, titled 'Us Too? Bullying and Sexual Harassment in the Legal Profession'. After analysing responses from almost 7,000 members of the legal profession, hailing from 135 countries, it was reported that one in three female respondents had been subjected to sexual harassment in their workplace. This compared to one in 14 males. Of the Australian responders to the survey, almost 30 per cent reported that they had been sexually harassed, compared with the global survey of 22 per cent.

The Australian Women Lawyers Association has written to the Law Council of Australia, the Australian Bar Association, the law societies, bar associations, legal professional conduct commissions, law firms—all legal employers—seeking action. Former Prime Minister Julia Gillard, herself hailing from the profession, spoke at the International Bar Association in Seoul last year of her wish for all sexual harassment to be eradicated, just like the ink pot and quills of a bygone era. She said bullying and sexual harassment is not one horrible moment in time; it undermines a sense of self, corrodes confidence, can give rise to anxiety, depression, even suicide. Her suggestions for correcting legal workplace climate, based on the US research, included the establishment of an online reporting tool similar to what has been implemented in American universities.

The three options would include: firstly, lodging a secure and encrypted time stamps record that no-one else can access, preserving evidence for the future if the victim decides to take the matter further; secondly, they can hit 'send' on the report to instigate an investigation; and, the third option is to opt into a repeat perpetrator matching system to see whether they are part of a group. Offenders are commonly part of a group of more than one person. These are just some of the tools that an inquiry could consider.

The motion that I have, as you know, sets out a number of provisions which call for an investigation into, firstly, the prevalence of harassment in the legal profession, and that includes everybody in the legal profession, the sorts of policies, measures and practices that could be implemented to address that behaviour, and anything else that needs to be done, including the implementation or establishment of an independent body, which importantly could hear matters on a confidential basis in terms of addressing issues of harassment and sexual harassment in the workplace. Of course, the equal opportunity commissioner is well placed to undertake those investigations.

I close by indicating for the record that I have had discussions with the President of the Bar Association, Mr Hoffmann QC, and former SA Bar Association president, Mr Whitington QC, two eminent local silks who have indicated their support for the inquiry. Today, more than ever, there is absolutely no question—none whatsoever—that an investigation into the legal profession is absolutely critical. The equal opportunity commissioner and her team deal with this area of the law each and every single day. That is what they do, so it makes perfect sense that she undertakes such an inquiry.

I urge the Attorney-General to consider this motion favourably. It is what the community expects of this parliament, of this government and of her as our Attorney-General. As has been reported in the media, ripples from the sexual harassment allegations against the former High Court judge continue to spread. Other jurisdictions are taking note and they are acting accordingly. The complacency and complicity of the legal profession is now being challenged. There are deep cultural shifts that are absolutely required, and it is the right time for South Australia to follow suit. With those words, I commend the motion to the chamber.

Debate adjourned on motion of Hon. D.G.E. Hood.

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