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Opinion: Ongoing disgrace must stop

Opinion: Ongoing disgrace must stop

By Jennifer Batrouney



The legal profession can no longer pretend sexual harassment is uncommon.

I issued a statement the morning the High Court sexual harassment scandal broke commending the bravery of six women associates who spoke out about sexual harassment in their workplace in my capacity as convenor of the Women Barristers Association.

It should not be a “brave” thing to do. Victims of sexual harassment should feel confident that they will be supported and not suffer any adverse consequences when they complain about such conduct.

It seems the High Court scandal involving allegations against former High Court judge Dyson Heydon has created a #MeToo moment for the legal profession.

Let’s not waste this moment. I have heard a lot of talk about whipping up policies. Policies have their place, but in my experience in the equitable briefing space, many organisations write a policy, have a drinks function to “launch” it then tuck it away in the filing cabinet never to be heard of again.

Many studies have found sexual harassment in the legal profession is common. The media storm surrounding the High Court scandal has already emboldened others to speak out. There will be many more. But these same studies show most sexual harassment goes unreported and that women lack confidence the system will address complaints in an appropriate manner (confidentially and effectively).

One of the High Court associates left the profession and another abandoned plans to go to the bar. This is a devastating indictment on the profession. Women do not feel safe – this is a tragedy.

To address this ongoing disgrace, the Victorian Legal Services Board recently conducted a survey of the profession and the result “suggests there is a power imbalance that allows sexual harassment to occur and go unchecked. In their free comments, survey respondents told [the VLSB] about a culture of impunity that protected harassers, with threats of defamation and a lack of confidence in the system to address complaints".

In addition to appropriate, vibrant and enforced policies to deal with harassment, we must insist on practical reforms to ensure everyone understands what sexual harassment is and how to appropriately deal with such conduct when it is experienced or witnessed.

Sexual harassment is an unwelcome conduct of a sexual nature in relation to another in circumstances where a reasonable person would have anticipated that the person would be offended, humiliated or intimidated. Sexual harassment may take many forms. It is not limited to physical contact or gestures. It may take the form of casual comments, jokes, emails, distribution of other electronic material, display of printed material, or repeated or persistent personal questioning. The intention behind the person’s behaviour is not relevant. 

Members of the legal profession must also be aware of the serious consequences of sexual harassment. Sexual harassment is unlawful in a workplace and a breach of the Legal Profession Uniform Conduct Rules. Sexual harassers must be made accountable for their actions. It must be the harassers who are punished – not the victims. It may well be the case that the Sex Discrimination Act be amended to ensure it covers all the people and workplaces in the legal profession, including solicitors, barristers and support staff.

The profession can no longer pretend sexual harassment is uncommon. We must open our eyes to a real problem in the here and now. The VLSB survey found leaders in the law thought sexual harassment was “very rare” in circumstances where more than 50 per cent of practitioners who responded to the survey reported either personally witnessing sexual harassment or hearing about it directly from someone who had experienced it. So the perception does not align with the reality.

Victims of sexual harassment must be given the confidence to complain about it – 81 per cent of the VLSB survey respondents did not report their experience to their organisation. This must change. The Victorian Bar’s sexual harassment policy is a great example of a range of options available to victims to confidentially make a complaint. One is to raise the issue with Bar conciliators who have been specially trained by the Human Rights Commission to deal with such complaints. 

There must be a whole of organisation systemic approach to give victims the courage and confidence to call out this appalling behaviour, which is often unlawful and always unprofessional. Lawyers have an obligation to ensure the safety of their workers. There is also an important role for bystanders in identifying and calling sexual harassment when they see it happening to others. As Lieutenant General David Morrison said “The standard you walk past is the standard you accept".

There must be zero tolerance towards sexual harassment in the legal profession. ■

Jennifer Batrouney QC is convenor of the Women Barristers Association. She is also a board member of the Victorian Legal Services Board, an LIV associate member and was awarded the LIV Mentor of the Year in 2014.

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