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Workplace culture: Spotlight on legal profession’s open secret

Workplace culture: Spotlight on legal profession’s open secret

By Carolyn Ford

Courts 

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The regulator and courts are set to toughen measures to stamp out offending behaviour in legal workplaces following the recent damning Review of Sexual Harassment in Victorian Courts.

Sexual harassment in the Victorian legal profession is to be monitored via an anonymous online reporting tool for lawyers by the Victorian Legal Services Board and Commissioner (VLSB+C) which will, where appropriate, take regulatory action. 

“We will soon launch an anonymous online reporting tool for lawyers in Victoria to tell us about instances of sexual harassment they encounter at work,” says VLSB CEO and Commissioner Fiona McLeay. 

“We hope to gain valuable data allowing us to monitor ‘hot spots’, such as law practices, and where possible, take regulatory action.” 

The online tool is one measure being implemented by the VLSB+C as part of its strategy to stamp out sexual harassment in the legal profession. It is targeting education and awareness-raising initiatives at those most likely to encounter – and perpetrate – sexual harassment. Mandatory CPD training on sexual harassment, recently adopted in South Australia, may also be supported on the basis of the behaviour’s unacceptable frequency and harm, within a wider change program. However, an independent VLSB+C review said it might not be the most effective or sustainable approach for ensuring cultural change in the profession. 

“We must build a culture where sexual harassment is no longer tolerated and where targets and bystanders feel safe to speak up,” Ms McLeay says. 

“We look forward to sharing our learning and resources and working with the government and the courts to implement these changes to make a difference to everyone who works in the legal sector in Victoria.” 

Since releasing its 2019 survey report into sexual harassment in the Victorian legal profession, which found 36 per cent of lawyers had been sexually harassed while working in the profession, the VLSB+C had more individuals coming forward to report but not in numbers reflected in the survey, indicating the barriers lawyers faced when deciding to make a complaint to the VLSB+C. 

“We want to be very clear that sexual harassment is behaviour we take seriously, and we can investigate. We strongly encourage anyone who experiences sexual harassment by a lawyer to take detailed notes about what occurred, where, when and who else was present, and let us know about it.” 

April saw the release of the 83-page Review of Sexual Harassment in Victorian Courts by former Victorian Equal Opportunity and Human Rights Commissioner Dr Helen Szoke, which lawyer groups are optimistic will prove an inflection point that brings meaningful change to the culture of the Victorian legal profession.

Victorian Women Lawyers (VWL), the Women Barristers Association (WBA) and the LIV say the 20 recommendations made in the landmark report provide a clear roadmap to address sexual harassment in the sector where women now reflect the majority.

LIV president Tania Wolff says the LIV is committed to working with the profession and justice system on prevention. “We know women have left the profession having experienced sexual harassment. The old saying, ‘the standard you walk past is the standard you accept’, has been the reality for too long. The time for change is now.”

The LIV will start sexual harassment education and training for Victorian lawyers from July. The workshop, to be delivered by specialist trained facilitators, identifies inappropriate conduct, the role of bystanders, workplace culture and the reporting and management of complaints. It uses filmed scenarios of examples in the workplace and through facilitated discussions will challenge what can be done to reduce harm to individuals, organisations and the profession. 

VWL president Vanessa Shambrook is optimistic the review will encourage meaningful and measurable change but only when there is true gender equality will the culture of sexual harassment be eliminated. Leaders consistently and visibly working to champion a no tolerance culture is essential. VWL particularly supports adoption of responses prioritising survivor wellbeing, often lacking in current complaints processes. 

“I personally acknowledge the bravery and the challenges faced by survivors who have come forward and shared their experiences of sexual harassment, without which, we would not be discussing this report,” Ms Shambrook says.

Supreme Court Chief Justice Anne Ferguson says those who told their stories to the review had been heard. “That can’t have been easy. But it was powerful . . . and we are determined to act.” There will be “zero tolerance” for sexual harassment in the courts. “I want to make it clear we will not put up with any form of wrongful conduct in our courts or VCAT. Preventing and addressing sexual harassment is complex. But that won’t deter us from the task ahead.”

WBA convenor Jennifer Batrouney QC says, “we just want it to stop”. She tells of a female barrister in a crowded chambers lift recently being asked by a male barrister, "how’s business?". "Quite good, thanks," she answered. He then asked, "you don’t think you’d be better off at Goldfingers [the strip club] do you?"

Ms Batrouney says it is critical the profession seize the moment with blunt messaging.

“Don’t touch. Hands off. Call it out. Keep sex out of it. It’s against the law. Think before you speak. Tell someone. We need a hard-hitting, between-the-eyes education campaign. People need to understand it’s not ok to touch, to be disrespectful, to invite a woman up to chambers with the intention of groping her or belittle a woman in a lift.”

Although they shouldn’t have to, and the onus is on prevention, women need to continue to speak up, as they had done to the Szoke review, the 2019 VLSB+C sexual harassment survey and the Respect@Work Inquiry, but so too bystanders who witness sexual harassment need to immediately “swing into action” to stop “this low-grade derogatory language that might escalate into high-level sexual harassment”, Ms Batrouney says.

Since the review’s release there had been pushback, she says, with some in the profession feeling men were under siege, the issue “overblown” and suggesting there would be reluctance to mentor or hire young female practitioners for fear of accusations of sexual harassment.

“Just because somebody doesn’t see sexual harassment doesn’t mean it isn’t happening. Statistics don’t lie. There is a tsunami of evidence. This sort of conduct now goes to your suitability to be a judge, barrister or solicitor. When the ability to practise is on the line people will sit up and take notice.”

The review recommends amending the silk appointment process to better assess character and previous conduct, also for judicial officers, requiring appointees to be of good character and respectful and courteous of colleagues and clients. 

The 20 recommendations include law reform to strengthen complaints procedures, to ensure protections for court staff and to address systemic issues of sexual harassment; targeted education; awareness-raising and training; an Equality Bench Book; guidelines for judges and members of VCAT; new sexual harassment policies in the courts; new victim-centred responses to gender-related misconduct; review of recruitment processes for staff working with judicial officers; a WH&S framed risk assessment of courts; an annual anonymous survey to track progress; performance metrics for managers; and an audit to be done and made public within two years.

The government, courts, VCAT, Judicial College of Victoria, Judicial Commission, Australian Bar Association (ABA), VWL, WBA, LIV and other federal and state law societies, and the VLSB+C support the recommendations.

State Attorney-General Jaclyn Symes has pledged to work with relevant agencies, heads of jurisdiction and ministers to ensure the recommendations are addressed. “I welcome this clear path to building a better and safer culture and stamping out this unacceptable behaviour for good.”

The Szoke review came about at a time of social convulsion over workplace sexual harassment. Globally, the #MeToo movement encouraged women to speak up, and they did. In 2019, former associates of former High Court judge Dyson Heydon notified Chief Justice Susan Kiefel that they had been harassed by Mr Heydon. An independent investigation found he had harassed six judges’ associates. In the same year, the VLSB+C survey found more than a third of women lawyers had experienced sexual harassment in the legal workplace.

It was in this context, knowing that it does occur, that then Attorney-General Jill Hennessy and Chief Justice Ferguson initiated the Victorian review by Dr Szoke. It found sexual harassment is an “open secret” in the Victorian legal profession. It is, said the review, pervasive, under-reported, poorly understood and its corrosive and traumatic impacts overlooked, dismissed or underestimated. 

Women and men spoke of the harm caused, including being diminished in the eyes of clients, and deficient systemic responses to disclosures. “It is demeaning, often degrading, and corrosive,” the review said.

“The silence surrounding these behaviours is perpetuated by the power inequalities in the court setting and a legal profession requiring patronage and a network to progress,” Dr Szoke said in the review. As one participant put it, “If you put up with the behaviour it kills your soul; if you complain it kills your career”.

Three themes emerged from consultations – sexual harassment is an open secret in the profession, there are barriers preventing reporting of it and it is frequently perpetrated and experienced by barristers. 

Victorian Bar

Based on evidence given to the review and prevalence of sexual harassment complaints against barristers to the VLSB+C, “the issue of sexual harassment by barristers was identified as a particular problem”.

“Barristers’ role in courts and VCAT and the culture of the Bar, which inevitably transfers to the bench as the vast majority of judges are appointed from the Bar, mean that changing the culture at the Bar will be very important to fully addressing sexual harassment within the courts and VCAT,” the review said.

“A boy’s club”, “a very blokey environment, which puts you on your guard”, “shocking behaviour towards women on the bench”, “alpha male instincts”, “disrespectful and inappropriate”, “hierarchical approach and demeaning language”, “sweep it under the carpet”, were among comments made in consultations about courts.

“Extreme competitive aggression and 'soft' intimidation were described as tactics of the profession – just part of the norm . . . often occurred before the formal proceedings or in the corridors outside court rooms, unobserved by the judicial officers. As one said, ‘it’s how you win’.”

Many barristers, particularly junior practitioners, the review heard, are not confident the current complaints process will protect them; fear of retaliation by the perpetrator means the cost of complaining is too great.

The review supported the Victorian Bar’s review of its sexual harassment policies and employment of a trained conduct officer to support victims and investigate. The recommendation to introduce new appointment criteria for Senior Counsel to better assess applicant character and previous conduct would include recognition of good character, completion of sexual harassment training within the previous two years and a statement that the Chief Justice will consult with the VLSB+C and professional associations representing women and minorities about prospective appointments.

There was support in the review for the VLSB+C assuming responsibility for investigating complaints about barristers’ conduct (Recommendation 88 of the Royal Commission into the Management of Police Informants), which will be effective from 1 July. “The Victorian Bar needs to be more proactive and take a strong leadership role in preventing and responding to sexual harassment including through effective prevention plans, appropriate and sensitive reporting options, additional professional development opportunities and the encouragement of a diversity of practitioners to join the Victorian Bar,” the review said. 

An April Victorian Bar newsletter said the recommendation to amend the silk appointment process to better assess applicant character and previous conduct would be addressed in time for the next application round. A leadership CPD for prospective silks was being prepared. 

Commenting on the Victorian review and also the Review of Sexual Harassment in the South Australian Legal Profession, ABA president Matthew Howard SC said the twin reviews “expose again the dark behaviours that unchecked power imbalances and hierarchical structures can perpetuate”. Such behaviour “undermines public confidence in the legal profession and the administration of justice”. Following the report’s release, SA Chief Justice Chris Kourakis offered to meet victims of sexual harassment by serving or former members of the judiciary, in person and away from the courts, and provided a dedicated email address which complainants can use anonymously or otherwise.

“I will support any complainant who comes forward, who wishes to pursue the complaint formally, either by referring the matter to SA police or to the Judicial Conduct Commissioner. I have approached the commissioner of police to provide an easily accessible process for reporting the complaint,” Chief Justice Kourakis said in a statement. In April, SA became the first jurisdiction to make annual bullying and sexual harassment training compulsory for lawyers as part of CPD requirements to renew practising certificates.

The Szoke review made no recommendations about law practices or other parties using the courts, but acknowledged these employers have an obligation to staff to prevent harassment at their premises and when attending court or VCAT.

Judiciary 

Judicial independence and immunity were raised during the review, which did not understate their importance, acknowledging both are central to maintaining public confidence in the integrity of the judicial system. But, the review said, judicial independence should not be a reason not to regulate the conduct of judicial officers to prohibit sexual harassment. Nor should it act as a barrier to effectively addressing it.

Heads of jurisdiction have responsibility for discharge of the business of the court and learning and professional development of judicial officers. The extent to which they can exercise control over or should be responsible for the management of behaviour of judges is “uncertain and contentious”.

Hierarchy and the resulting power imbalance exists in all realms of the professional working life of court staff, according to the review. Roundtable participants said deference towards judicial officers seemed, for many, “not negotiable”. There was agreement among many women and some men that more diversity in leadership roles in courts and at the Bar is needed.

Experiences of sexual harassment 

The review, which is peppered with anonymised accounts of sexual harassment, was made aware of “serious instances” of sexual harassment with significant impacts on its victim-survivors. It did not identify how widespread it is in the courts and VCAT, but the cases reported indicate the need for a dedicated focus.

A significant area raised in the review was police prosecutors. Participants referred to disrespectful language and inappropriate “banter”. Practitioners often had to decide how much of this they would take for the sake of their client. It often occurred during summary case conferencing, in a small office with a police officer where keeping a good rapport with that officer was important to negotiating a good outcome for the client. “. . . this type of power imbalance makes it easy for sexist, racist and homophobic remarks to be made without rebuke.”

Intersectionality is another element to the issue, said the review. Sexual harassment is often amplified by race, disability, sexuality and age. This included the particular vulnerabilities of Aboriginal women and women of colour, and people who identify as LGBTIQ. Lesbian lawyers told of homophobia and men fetishising lesbians’ personal lives; lawyers reported witnessing disrespectful comments by judicial officers directed at transgender clients.

Drivers of sexual harassment 

Gender inequality is a central driver of sexual harassment, the review said, but so too are conservative norms, workplace culture, systems of discrimination or disadvantage, lack of understanding about what constitutes sexual harassment, sexualisation of women and the subordination of women in traditionally female roles, a sense of entitlement and lack of accountability by those who hold powerful positions in the workplace and abuse of alcohol in a work context. 

Looking ahead

The review is focused on Victorian courts, but Dr Szoke said in the report she hopes it will be considered across all Australian jurisdictions and workplaces as the need for reform is pressing. She is confident the state government will ensure consideration is given to resource requirements in the budget. ■


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