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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-14 Daily Xml
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Legal Profession, Harassment

Adjourned debate on motion of Hon. C. Bonaros:

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.

(Continued from 22 July 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:24): I rise to indicate Labor's support for the motion moved by the Hon. Connie Bonaros in the fight to stop harassment in the legal profession. We feel the Attorney-General should use the expertise of the equal opportunity commissioner to undertake the independent inquiry that is suggested in this motion. All professions, including and perhaps especially the legal profession, should be safe and empowering workplaces for workers. Harassment is completely inappropriate. It should never be encouraged, tolerated or allowed to spread in the workplace.

Recent events show that workplace harassment and sexual harassment can be insidious in the legal profession. We have also seen how easily it can be swept under the rug, protecting perpetrators of harassment or sexual harassment. This was especially highlighted very publicly in revelations about Dyson Heydon. A report found a former justice of the highest court in Australia sexually harassed six of his junior associates, and it went on and on. It was not dealt with properly when concerns were raised. Victims with incredible talent and potential left the profession while the perpetrator retained his position.

Dyson Heydon even went on to lead a royal commission with the intent of destroying the union movement whilst getting paid thousands of dollars a day to do so. Ironically, the union movement, the body that represents workers and in many instances helps workers through situations where they have been harassed and sexually harassed in the workplace, was led by Dyson Heydon who the report found had sexually harassed six of his junior associates. What message does this send to those who are victims and want redress?

The statistics in Australia show a disappointing story. Harassment, and particularly sexual harassment in the workplace, is a pervasive reality that undermines participation in the Australian workforce. Nationally, the Australian Human Rights Commission in 2018 found that one in three people experienced sexual harassment at work in the previous five years. The same survey sadly showed how gendered and intersectional this issue can be. It showed almost 40 per cent of women and 26 per cent of men experienced sexual harassment in the workplace. Aboriginal and Torres Strait Islander workers were also more likely to experience this kind of harassment, with the figures of 53 per cent and 32 per cent respectively.

The legal profession above all should be a place where people's rights are respected and supported. Speaking out can be extremely difficult for people experiencing harassment at work. They may fear losing their career or reputation. Bullying and sexual harassment should never be tolerated. An equal opportunity commissioner inquiry would be a concrete step in making a difference. If the Attorney-General acts on this motion, it will support and protect South Australians working in the legal profession from workplace harassment.

We agree that the equal opportunity commissioner is in the best position to provide analysis and solutions for a way forward. We must end harassment in the legal profession as in all professions and I commend this motion to the council.

The Hon. M.C. PARNELL (17:28): I am pleased that this chamber yesterday made amendments to the Equal Opportunity Act to ensure that claims of sexual harassment by members of the judiciary against other members of the judiciary are now included in that act.

Members interjecting:

The PRESIDENT: I welcome the fact that there is some discussion going on, probably about the progress of this matter, but if it can be done without interfering with the Hon. Mr Parnell that will be much to my liking.

The Hon. M.C. PARNELL: Thank you, Mr President. Along with the equivalent provisions for members of parliament, these are long overdue reforms. However, as the Hon. Connie Bonaros has pointed out, they are not perfect and grey areas remain. Nevertheless, it is a start. I am also pleased that all parties are going to support this motion today. I note from InDaily an article published this afternoon by the journalist Stephanie Richards under the heading 'Govt backs harassment inquiry into legal profession, but Parliament House off limits'.

Now, I am not going to revisit the Parliament House issue, but it does seem as if the government is going to get behind this inquiry into the legal profession, and that is a good thing. The motion calls for an inquiry by the equal opportunity commissioner, which I support, but I would also note that the legal profession itself has begun to realise that it has a problem, and there is now growing leadership beginning to emerge on this issue. For example, on Monday of this week the Adelaide Law School hosted a seminar as part of its Next Steps series, which was entitled, 'Maintaining integrity at work'.

The seminar featured the Hon. Chief Justice Chris Kourakis; Amy Nikolovski, the immediate past president of the Law Society; along with law school lecturer Dr Gabrielle Golding. This is a pretty impressive line-up of senior legal figures in this state to discuss exactly these issues—discrimination, sexual harassment and bullying in the legal workplace. This would never have happened when I studied law at university in the 1970s and 1980s. So the profession is onto it.

I make this point not to say, 'Well, if the profession is onto it, therefore we don't need an inquiry.' Rather, it is to say that I think an inquiry would support initiatives like this, because the value of an inquiry is that it can help expose the extent of the problem, and it can bring on board more people, more members of the legal profession, to help stamp out this inappropriate behaviour. So I see current moves within the legal profession and this equal opportunity commissioner inquiry we are debating now to be complementary.

We know from experience that in hierarchical professions such as law there is a great incentive to keep your mouth shut. After all, making a complaint against a senior member of the profession—a High Court judge, for example—can be seen as a career limiting move. But we also know that there is strength in numbers, as the Me Too movement has shown, and I have no doubt that, given an appropriate and safe space to raise issues of concern, many members of the legal profession will participate in the inquiry. We will have a much better idea of the nature and scope of the problem and what needs to be done to fix it. So I am pleased to be supporting this motion.

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:38): I move to amend the motion as follows:

Delete in the original paragraph the words 'instigate an independent inquiry by the Equal Opportunity Commissioner' and substitute the words 'appoint an independent person to independently inquire'.

Delete paragraph 2 and substitute the following:

2. Improvements that may be made to existing laws, policies, structures and complaint mechanisms relating to assault and harassment, particularly in light of recent developments in other jurisdictions to treat sexual harassment as a workplace health and safety issue;

3. Consider 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;

4. Ensure any independent complaints body:

(a) has a diverse membership;

(b) is transparent in its processes;

(c) has appropriate investigative powers;

(d) has avenues for anonymous complaints;

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

(f) provides for appropriate avenues of redress in the event a complaint is made out; and

5. Any other relevant matters.

The PRESIDENT: The Hon. Ms Bonaros, if you speak, you close the debate.

The Hon. J.M.A. LENSINK: I am happy to say a few words.

The PRESIDENT: If the Hon. Ms Lensink wants to elaborate on that, I think it would be particularly useful, given that we do not have written copies of it.

The Hon. J.M.A. LENSINK: Yes, I apologise for that and I will tell off the Attorney-General. Nobody does that, sir; I am joking.

The Hon. S.G. Wade: That's very courageous.

The Hon. J.M.A. LENSINK: It would be very courageous, as my colleague disorderly interjects. Principally, it shifts the investigation from the Equal Opportunity Commission to an independent person and in subparagraph (d) it adds 'has avenues for anonymous complaints'. I think any honourable members who have had dealings with these sorts of issues would understand that facilitating the ease with which people can make complaints is quite important to assisting victims to raise matters.

I have some general comments in support of the motion, which has been broadly supported by the legal profession, with the Chief Justice convening a meeting to address the issue of bullying and sexual harassment in the profession. The Chief Justice's media release stated:

…The Honourable Justice Trish Kelly, Acting Chief Justice of South Australia…presided at an initial meeting with representatives from the South Australian Bar Association, the Law Society of South Australia, Women Lawyers Association of South Australia, Australian Association of Women Judges, Women at the Bar, and the Adelaide Law School.

The group discussed practical solutions to address the issue and the need to encourage reporting, whilst recognising that a great deal of work has already been undertaken by the legal profession in relation to the issue of bullying and sexual harassment in the legal profession.

The members attending agreed on a number of in-principle measures which will include the need for:

involvement of the profession from grass roots level to the highest level, starting at law schools;

compulsory continuing professional development and compulsory training for all lawyers; and

a process whereby those practitioners affected can complain in confidence and receive appropriate support and counselling.

The meeting also recognised a need for ongoing training for all practitioners to be undertaken annually and an acknowledgement of their understanding of the obligation they have in reporting inappropriate behaviour.

Given the work already occurring in the legal profession and the ability of independent bodies to consider allegations of sexual harassment in the legal profession, the amendments also ensure achievable outcomes occur, and consideration occurs of key issues in the profession.

The PRESIDENT: Before calling the Hon. Connie Bonaros, I would just indicate personally that I am happy to proceed with this, but if there was any disagreement from anybody to going ahead at this stage, because we do not have written copies of the changes, then I would suggest that we could do that. But in the absence of that, I will give the Hon. Connie Bonaros the opportunity to conclude the debate.

The Hon. C. BONAROS (17:43): I thank all members of this place and the other place, in particular the Attorney, for working with me in relation to this motion. The amendments that the minister has just outlined were the subject of discussions between the Attorney and me. To some extent, I think it was a matter of just perhaps cleaning up the wording but also making a couple of additions of matters that I had overlooked in the first instance. The issue of who will actually conduct the inquiry has been changed to indicate that it is an independent person, as opposed to stipulating that it must be the equal opportunity commissioner.

To the point made by the Leader of the Opposition, there is of course nothing preventing that independent person from being the commissioner, provided they are independent in the way they conduct the inquiry, and that is really what we are trying to achieve. That was, I suppose, one of the non-negotiables in terms of the discussions I had with the Attorney. I am extremely grateful that she has seen fit to work with me on this and, importantly, to ensure that we have a unanimous position in this place on such an important issue.

The Hon. Mark Parnell talked about the growing leadership in this area, and it cannot come soon enough in my opinion. Of all the professions, it is very much my view that the judiciary, the legal profession and each and every member of this place, that is, our lawmakers, those people who are armed with interpreting our laws and applying our laws, should know better. It is abundantly clear that in many instances they do not.

I also acknowledge the growing amount of work that has been done in this area. I acknowledge the work the Chief Justice is doing in this area in terms of the review he has instigated, but I am also mindful of the fact that our Chief Justice, whilst everything he is doing is very admirable and very helpful for all of us, is somewhat limited in the scope of anything he does because his reach does not extend to the entire legal profession—it extends to the judiciary. This is really ensuring that the same considerations he may be making in relation to the judiciary are not limited just to the judiciary but extend to everybody working within that profession.

I said today that the legal profession and members of parliament are by no means the only professions within which this conduct happens, but we have had the benefit of some very outdated exemptions in the past from rules that apply to other workplaces but that do not apply to us, and there is absolutely no place, in my opinion, for those sort of exemptions.

Other jurisdictions are leading the nation in terms of the work they are doing. Victoria and New South Wales are leaps and bounds ahead of South Australia in terms of the work they are doing. It was also my wish that we look at those jurisdictions and any other jurisdiction that is leading the way and learn from them, particularly in light of the Heydon revelations and the letter that was signed off by over 500 members of the legal profession across the nation. Some of our most eminent lawyers in the profession signed off on the letter, saying that every jurisdiction needs to take action.

In terms of the clauses of the motion itself, I indicate that they are a reflection of many of the points raised by those members of the profession. It is entirely consistent with what is being proposed across the board in terms of what we need to be looking at. Anyone who suggests that there are no or limited complaints in South Australia to the Equal Opportunity Commission or any other body, and that therefore this is not an issue, is fooling themselves, because we know absolutely, as was illustrated by the Leader of the Opposition, that there are ramifications for those people who choose to speak out.

Adelaide is a small place and, in addition to risking your career, it makes it very difficult to work at one of these firms or in the legal profession if you are brave enough to come forward with a complaint. The equal opportunity commissioner has said that to date she has only ever had one complaint made to her about a member of the legal profession. There is very good reason why there has only been one complaint, because the mechanisms we have had to date simply have not worked.

So we do need to ensure that we have the appropriate mechanisms in place to give somebody who has been the victim of this sort of behaviour the confidence that they need to ensure that their complaint will be dealt with in the appropriate manner. This motion is intended to reflect some of those measures which exist in other jurisdictions, or which are being called for, which do just that.

In closing, I would like to thank each and every member who has supported this motion. It is lovely when we all work together and reach a unanimous decision on something as important as this. With those words, I commend the motion to the house.

Amendment carried; motion as amended carried.

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