Lawyers and barristers who fail to adequately prevent sexual
harassment of their staff, or discrimination towards them, face
disbarment or losing their right to practise, the profession’s
watchdogs have warned.
The bodies that oversee the rights of solicitors and barristers to
practise law say they will keep a close eye on how practitioners
comply with new duties to prevent sexual harassment in their
workplaces when enforcement of the duty starts in December
New Sex Discrimination Commissioner Anna Cody, who is a
lawyer, has warned she will be tougher on the legal industry
than other sectors when her power to enforce the duty kicks in on December 12.
The new legal obligation, which stemmed from the
Respect@Work report, requires employers to take proactive and
meaningful action to prevent sexual harassment or
discrimination at or in connection to work. It took effect last
December, but the commission’s powers to investigate and
enforce compliance only come into force this year
Ms Cody said the Human Rights Commission had “resourced
up” so it could crack down on laggards as soon as its new
powers allow, and that professions with especially poor records
of sexual discrimination and harassment such as lawyers –
would be first in its sights.
Her expectations of legal chambers would be higher, given they
“clearly have a very high level of knowledge” of discrimination
and harassment laws professionally.
A ‘reminder’ to the profession
Victorian Legal Services Board chief executive and
commissioner Fiona McLeay welcomed Ms Cody’s intention to
focus on the legal profession, noting the body already had “a
number of investigations and prosecutions under way” into
sexual harassment.
“We’ve been clear with the
profession that sexual harassment
is totally unacceptable and that any
lawyer who engages in this
behaviour in the workplace is
breaching rules of professional
conduct and opening themselves
up to serious professional
consequences, as well as possible
civil and criminal liability.”
Ms McLeay said she planned to directly “remind the profession”
of their obligation to comply with the duty and hoped Ms Cody’s
focus would encourage laggards to improve their sexual
harassment policies.
A 2019 report by the board found that many legal workplaces
did not have appropriate sexual harassment policies,
procedures or training in place, and that 61 per cent of female
lawyers in Victoria had been harassed.
“We’re hopeful that the commissioner beginning to enforce the
positive duty is a reminder to those in the profession who
haven’t already implemented these interventions and risk
management tools to do so urgently,” Ms McLeay said.
The board has an online reporting tool
that lets people anonymously report sexual
harassment by lawyers and includes guidance on “all options
available to them including complaining to the human rights commission
Barristers on notice
The heads of the country’s biggest bar associations also warned
they would be taking a tough stance on non-compliance
uncovered by the sex discrimination commissioner.
While barristers are sole practitioners, they often employ legal
assistants and hire clerks either individually or as part of their
broader chambers and would be covered by the duty in this
context. Just as the Victorian board can remove lawyers’
practising certificates, the bar representative groups can disbar
barristers.
“The Victorian Bar has the highest expectations of its members
in relation to preventing sexual harassment and discrimination
in the workplace,” Victorian Bar president Sam Hay, KC, said.
“Any reports of non-compliance from the Human Rights
Commission would be addressed in the appropriate manner.”
NSW Bar Association president Gabrielle Bashir, SC, said she
“welcomed the focus” of Ms Cody, who also serves on the
group’s senior counsel selection committee on barristers.
She said the bar directly notified chambers of their new
obligations under the positive duty rules last April, updated its
best-practice guidelines, and ran specific education and training
to members
“The NSW Bar Association is dedicated to eliminating
harassment, discrimination and bullying from the profession.
We have been proactively addressing concerns in this area
ushering in cultural change at all levels of the bar,” she said.