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  • Writer's pictureDavid James Connolly

Lawyers, barristers put on notice over sexual harassment

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.






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