The role of climate change policy

Equal Opportunity Commission report makes several recommendations to address harassment in the profession

The Equal Opportunity Commission’s Report on its Review into Harassment in the legal profession was released on 20 April.

PREVALENCE OF HARASSMENT IN THE PROFESSION

The report “confirmed that sexual and discriminatory harassment was prevalent in the legal profession”, and made 16 recommendations to address this serious problem.

The Commission received more than 600 responses to its survey, interviewed 16 participants and received 18 written submissions.

Forty-two per cent of respondents to the survey indicated that they had suffered sexual or discriminatory harassment, with one-third of respondents reporting that they experienced such harassment more than once.

Of the respondents who identified as female, 56.6% said they had experienced sexual harassment in the legal profession, while 13.6% of male respondents also reported experiencing sexual harassment.

The most prevalent types of sexual harassment were sexually suggestive comments or jokes, inappropriate staring or repeated physical proximity, intrusive personal questions, and inappropriate physical contact such as unwelcome touching, hugging, patting, or brushing up against the body.

Seven respondents reported that they were victims of sexual violence or sexual assault.

Some 80% of victims reported that the perpetrator of the harassment was in a position of seniority in comparison to the victim.

With regards to discriminatory behaviour, the survey indicated that the most common attributes for which people received unfavourable treatment were related to a person’s gender, age, and/or caring responsibilities.

The results of the Commission’s survey broadly reflect the results in the Society’s 2018 survey of bullying, harassment and discrimination in the SA profession. KEY DRIVERS OF HARASSMENT

The EOC’s report identified the following key drivers of harassment in the profession: • a patriarchal and hierarchical culture characterised by intense competition • a lack of cultural diversity, particularly in relation to people identifying as

Aboriginal and / or Torres Strait

Islander • deeply entrenched gender bias that underpins discriminatory behaviour • a ‘culture of silence’ whereby instances of harassment are minimised, normalised and kept quiet.

STRENGTHENING OUR WORK HEALTH & SAFETY FRAMEWORK

The Report identified that legal workplaces needed to have systems in place aimed at reducing the risk of sexual harassment. This was critical in driving a respectful workplace culture that bears no tolerance for harassment of any kind.

The report noted that while work health and safety (WHS) laws already impose duties on Persons Conduction a Business or Undertaking (PCBUs) to eliminate work health and safety risks, they were primarily being utilised to address physical risks.

In the Commission’s view, the profession should better utilise the WHS framework to deal with workplace harassment. According to the report “a significant barrier to using the WHS framework to address harassment is that there is a cultural and institutional emphasis on WHS laws addressing physical risks and harm.”

The report submits that WHS policies do not, generally speaking, give enough attention to psychological risks.

In this regard the report endorses the Australian Human Rights Commission’s Respect@Work Report’s recommendation that the WHS framework be amended to deal with how to identify psychological risks and take appropriate measures to manage those risks.

The EOC Report recommended that PCBUs in the legal profession review, and where necessary, update policies, procedures and processes to eliminate or ameliorate, as far as practicable, risks of harm arising from harassment. This includes developing work health and safety systems that expressly deal with risks of psychological harm.

A BETTER SYSTEM FOR SUPPORTING COMPLAINANTS

The Report recognised that making improvements to current complaints mechanisms were not going to solve the problem of sexual harassment, but it did identify shortfalls within the current complaints framework that, if addressed, would empower more victims to speak out and lead to more just outcomes.

However, the report concluded there was no justification in establishing a new, independent complaints body, noting there were “already numerous reporting and complaints avenues available”. Instead, it recommended making changes to current complaints bodies.

The report notes that there was generally a high awareness of the various bodies that could deal with harassment complaints, however the problem was a lack of trust that going to a complaints body would yield a satisfactory outcome. A number of respondents also expressed confusion about how the complaints bodies operate, and how to determine the most appropriate avenue of making a complaint.

To address the lack of engagement with existing complaint mechanisms, the report recommended changes to the Office of the Legal Professional Conduct Commissioner (LPCC), including: • Expanding the current complaints mechanisms within the LPCC to include two full-time investigative solicitors • Providing for a dedicated enquiries officer within the LPCC to be the first port of call for victims seeking information and support, and to conciliate complaints made to the LPCC. • Provide LPCC with powers to conduct compliance audits and issue practice management directions

The Report also recommended that internal workplace channels of complaint clarify and reinforce the importance of maintaining confidentiality when managing complaints; ensure that policies and procedures satisfactorily address the risk of harm arising from harassment and discrimination; and, where possible, involve independent external entities in managing complaints.

The Report suggested that the EOC itself was the most appropriate organisation to provide impartial information and advice to victims, assist people in pursuing avenues of complaint, and refer people to victim-centric support services.

DEFINING SEXUAL HARASSMENT IN CONDUCT RULES

Rule 42 of the Australian Solicitors Conduct Rules (ASCR) states that “a solicitor must not, in the course of practice, engage in conduct which constitutes discrimination, sexual harassment or workplace bullying.”

However, if conduct which breaches Rule 42 is deemed to amount to ‘unsatisfactory professional conduct’, it may not have any impact on a practitioner’s right to practice if the conduct does not occur “in the course of legal practice”.

Conduct that would amount to “unsatisfactory professional conduct” (which is a lesser offence than “professional misconduct”), must relate to conduct that occurs “in connection with the practice of law”.

The Report submitted that there were gaps in the statutory framework as currently constructed, as a large portion of harassment occurs outside of normal working environment, albeit at workrelated venues such as dinners, conferences, and other social or professional events. In fact, the EOC’s report revealed that about a quarter of respondents indicated that sexual harassment occurred at work-related events.

The Law Council is presently consulting its Constituent Bodies on a revised proposal for amendment to Rule 42, that aims to clarify that conduct occurring outside the legal practice workplace, but which is nevertheless connected to the practice of law, can be regarded as conduct that falls short of the standards of competence and diligence that a member of the public is entitled to expect of a lawyer.

The EOC Report also recommended including the SA Bar Association Conduct Rules under the definition of “legal profession rules”, and to grant the LPCC and Legal Practice Disciplinary Tribunal the power to make an order that a respondent do, or refrain from doing, a specified unlawful act.

A POSITIVE DUTY TO SET BEHAVIOURAL STANDARDS

The EOC Report noted that the Respect@Work report recognised the inadequacy of the current system which places an onus on victims to make complaints about harassment. The Respect@Work report recommended amending the Sex Discrimination Act to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment.

Taking a leaf from the AHRC’s book, the EOC’s report has recommended that the Equal Opportunity Act be amended to impose “a positive duty upon employers to ensure their workplace adheres to the standards prescribed by the Equal Opportunity Act.” The report noted that the Equal Opportunity Act currently does not contain a positive obligation to set workplace behaviour standards.

The Report notes that there were positive duties to maintain a safe workplace under the WHS act, but there were barriers to dealing with harassment via a WHS framework.

EDUCATING THE PROFESSION

The EOC Report recognised that cultural awareness education needs to be delivered to people as early as possible in their career journey. This means that university and practical legal training (PLT) students should receive education and training that is aimed at both fostering a culture of respect and inclusiveness, and providing practical guidance to reducing risks and dealing with inappropriate behaviour.

The Report recommended that universities and PLT providers reviewed their ethics content “with a view to providing a profession-specific perspective of harassment.”

The Report noted that the Law Council was in the process of developing national model sexual harassment policy and guidelines, and these guidelines could be tailored to suitable individual jurisdictions. The EOC Report notes that, due to the considerable work already being done in this area, there was no point in the EOC developing a set of practice guidelines.

The Report also noted, and supported, the Society’s initiatives in providing educational resources, delivering additional education and training to the profession as part of a Law Foundation grant to the Society, the ongoing delivery of CPD sessions relating to harassment and discrimination, and the introduction of a mandatory annual CPD unit on bullying, discrimination and harassment, which was formally approved by LPEAC after sustained lobbying by the Society.

CONCLUSION

The EOC report details some confronting examples of harassment in the legal profession which, sadly, did not come as a surprise given the results of 2018 survey into bullying, harassment, and discrimination which the Society conducted.

The recommendations are designed to provide practical solutions to changing workplace culture and supporting complainants. The report and all its recommendations is being carefully considered by the Society’s Council in consultation with Committees and the broader membership, following which a detailed response will be issued. B May 2021 THE BULLETIN 21