Australia: Has sexual harassment prevention reached a tipping point in the legal profession?

As reported in Australian Lawyers Weekly

In the wake of victims finding their collective voice, the legal profession must encourage, if not demand, that our leaders continue to lead and make courageous decisions so that critical momentum can be maintained, writes Sarah Rey.

Recent high-profile investigations and allegations of proven sexual harassment involving Australian judicial officers, and the public responses from the women at the helm of our superior courts, chief justices Susan Kiefel and Anne Ferguson, combined with the advocacy from leaders such as Grace Tame and Brittany Higgins, have helped put sexual harassment well and truly on the agenda for the legal profession.

The outcry of the community about the ongoing prevalence of sexual harassment in all quarters, most particularly workplaces, has been heard and helped focus attention where it needs to be focused.

In December 2021, the Law Council of Australia issued the National Model Framework Addressing Sexual Harassment for the Australian Legal Profession. More recently, on 22 February 2022, the Law Institute of Victoria convened a public meeting (LIV Panel) to report back on meetings with 50 representatives across the Victorian profession who had gathered to discuss the persistent nature of sexual harassment. That process culminated in a useful and pithy report entitled Sexual Harassment in the Legal Profession. What can we do about it? Both institutions are to be congratulated for maintaining the momentum and producing useful resources.

There were a few comments made by the LIV Panel – comprising his Honour Justice Chris Maxwell, John Somerville (Slater and Gordon), Genevieve Collins (Lander & Rogers) and Adam Awty (LIV), as well as two participants in the process, Rowan McRae (Victoria Legal Aid) and Katharine Kilroy (Clayton Utz) – that caused me to pause and reflect.

Firstly, they were surprised by the recent, fresh nature of the stories of harassment they heard from participants. They observed that this continues to be a pernicious issue, even though we as a profession have been talking about it for a very long time. Women in the profession have reported experiencing sexual harassment at much higher levels than the general population.

Secondly, they spoke about the need for zero tolerance for this type of behaviour and ensuring that all those in the ecosystem are put on notice about this. Based on my 30 years in legal practice, this is a new aspect of public conversation in our profession.

The report and Law Council resources outline why sexual harassment and other gender-based discrimination occurs more frequently in the profession and what to do about it. But saying there is zero tolerance and enforcing it are two different things. It is true that legal institutions are starting to listen and demonstrate through their responses to complaints (like the aforementioned chief justices) that voices will be heard and lawyers will not fall back on a knee-jerk, risk-management response.

I am not aware of other male respondents to sexual harassment making the types of public statements that we have seen retired justices make to deny or explain their actions, which again says something about the past and possibly prevailing culture in the profession. But, that is hopefully changing given the responses from the community to their defences, and judging by the consternation, if not ridicule, that I have heard from younger practitioners.

Thirdly, it was observed that there had been a shift in society. The legal profession has been late in coming to the party, but we are there now. The more sunlight on these issues, the better, as transparency acts like an antiseptic. While the profession has a long way to catch up, it is not dissimilar to other hierarchical professions (such as the military and surgeons) in its challenges and the solutions for those challenges. They are there; we just have to find them.

Fourthly, they reminded us that we owe our gratitude to the brave women who have tirelessly advocated about these issues over many years, against opposition.

Finally, there appears to be traction. But no doubt, our leaders will need to continue to make brave and considered choices about when to speak out and how.

Lastly, they touched on the importance of cultural change, which takes time to achieve. The section in the report that dealt with this issue is, for me, the most compelling: “The culture of law firms can be disempowering for those with less seniority or support, particularly young or recently recruited lawyers and non-legal staff … feeling valued and supported will engender trust in the reporting process.”

Whilst we may be a highly educated lot, and despite many of us working with clients in the more progressive corporate sector, in our own sector, we still tolerate cultures that are dysfunctional, hierarchical, oppressive, sexist and out of touch.

How these issues are tackled will generally be a private affair within the particular leadership group of, say, a firm, which, of course, is part of the problem as this group typically lacks diversity and self-perpetuates the culture.

As the panel noted, however, there is an increasing expectation that all participants in the legal ecosystem (and I suggest that includes lawyer or non-lawyers; male, female or non-binary; young or old; from those with higher socio-economic status or without) are going to want to see less tolerance for misconduct (sexual harassment, bullying and the like) and discrimination; more transparency and interest in how complaints are handled and who is at fault; and firmer actions to encourage deterrence and enforcement of publicly espoused organisational values.

On balance, it is clear that we have as a profession reached a tipping point. Having women in senior and influential leadership positions and being part of a majority in the profession is finally making a difference.

Behaviours that were acceptable in the past are no longer, and victims are finding their voice. It will be important to continue to support them. And we must encourage, if not demand, that our law industry leaders continue to lead and make courageous decisions if this critical momentum is to be maintained.

Sarah Rey is the managing partner of Justitia.