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Report of the Review of Harassment in the South

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Report of the Review of Harassment in the South OFFICIAL: Sensitive OFFICIAL Support services The Equal Opportunity Commission acknowledges that the findings of the Review of Harassment in the South Australian Legal Profession may trigger difficult memories and may be confronting for some people. Independent support is available from: • Lifeline - 131 114 (24 hours, personal crisis service) • 1800Respect - 1800 737 732 (sexual violence service) • Yarrow Place - 1800 817 421 (rape and sexual assault service) • MensLine Australia - 1300 789 978 (men's service) • QLife - 1800 184 527 (LGBTQI service) • BeyondBlue - 1300 224 636 (depression, anxiety and suicide prevention service) • Your Employee Assistance Program. OFFICIAL To: The Honourable Vickie Chapman MP Deputy Premier Attorney-General Minister for Planning and Local Government I present this report on harassment in the South Australian legal profession, as you requested on 24 November 2020. Steph Halliday Acting Commissioner for Equal Opportunity 9 April 2021 OFFICIAL Contents From the Acting Commissioner 1 Executive summary 4 1. Introduction 10 1.1 Terms of Reference 11 1.2 Scope, limitations and definitions 11 1.3 Methodology 17 2. Current context of the Report 22 2.1 Previous reviews and inquiries 22 2.2 Informal advice avenues 25 2.3 Current legislative framework 27 2.4 Existing preventative measures 45 2.5 Current regulatory framework 49 3. Prevalence of harassment in the South Australian legal profession 50 3.1 Survey overview 50 3.2 Overview of survey participants 51 3.3 Nature and prevalence of sexual harassment 55 3.4 Nature and prevalence of discriminatory harassment 65 3.5 Impacts of harassment 73 3.6 Experiences of reporting sexual and discriminatory harassment 74 3.7 Barriers 85 3.8 Power imbalance 86 3.9 Bullying 87 OFFICIAL 4. Preventative mechanisms 89 4.1 Factors driving harassment 89 4.2 It’s too late when a complaint has been made: Observations on culture 94 4.3 Implementation of diversity and inclusion measures 98 4.4 Workplace culture and policy 100 4.5 Role of the Commission to educate employers 122 4.6 Education and training at university 123 4.7 Mandatory reporting as a means of prevention 127 5. Establishing an independent complaints body 131 5.1 Findings of the Review 131 5.2 Features to be improved or adopted in existing mechanisms 133 6. Improvements to existing external complaint mechanisms 136 6.1 Awareness of existing external complaints mechanisms 136 6.2 Adequacy of external complaints mechanisms 137 6.3 Necessary attributes of a complaints body 138 6.4 How often are the current complaints mechanisms used? 143 6.5 How can the existing frameworks and complaint mechanisms be 144 improved? 7. Conclusion 181 8. Appendix 189 A Survey questions 189 B The Commission’s complaint and investigation process 190 C The Law Society of South Australia’s informal report process 193 D National Action Plan Items 195 OFFICIAL From the Acting Commissioner The terms of reference for the Review of Harassment in the South Australian Legal Profession (Review) did not assume or acknowledge the prevalence of harassment and its impact on individuals and culture in the legal profession. This Report confirms that harassment is indeed prevalent in this sector and that the problem and its solutions sit at both an organisational and cultural level. This is not an issue unique to the South Australian legal profession. Sexual harassment is recognised to be pervasive in workplaces around Australia and is evidenced in research including the 2020 Respect@Work Report produced by the Australian Human Rights Commission (AHRC) as a result of the National Inquiry into Sexual Harassment in Australian Workplaces (Respect@Work).1 Interstate and international reports also suggest that harassing behaviours are common across the legal profession in jurisdictions such as Victoria and New Zealand and in 2020 the High Court of Australia acknowledged harassing behaviours engaged in by one of its own judicial officers. As the Honourable Susan Kiefel AC, Chief Justice of the High Court of Australia said last year, ‘There is no place for sexual harassment in any workplace.’2 The recent report by the former Acting Commissioner, produced as a result of the Review of Harassment in the South Australian Parliament Workplace (Parliamentary Review), concluded that sexual harassment and discriminatory harassment are all too prevalent in the Parliament. The fact that legal and political institutions are far from immune from unacceptable, unlawful behaviours is deeply disturbing. These are, after all, the workplaces of those who make and administer the laws by which the rest of society functions. Although it is frustrating and disappointing that this scourge persists in our profession, these are the very workplaces that can – and should – lead change in this area and there are already definite signs of improvement. The recent shift in the national conversation was driven, in no small part, by the High Court’s statement in June 2020 regarding its investigation into the conduct of former Justice Dyson Heydon AC QC. So began the groundswell of support for greater scrutiny of harassment across the legal profession. The South Australian Parliament is to be commended for taking the important step of asking a light be shone on this sector and asking how the legal profession’s culture and processes can be improved. 1 Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, January 2020) (‘Respect@Work’). 2 Susan Kiefel, ‘Statement by the Hon Susan Kiefel AC, Chief Justice of the High Court of Australia’ (Media Release, High Court of Australia, 22 June 2020) 2. 1 OFFICIAL The response to this Review from much of the legal profession suggests there are many champions for change. Participants were willing to share distressing experiences in the hope of improving the legal profession’s approach to addressing and dealing with harassment. As with the Parliamentary Review, this recognition of the need for change must continue and be acted upon – the people who work in the South Australian legal profession, and the public at large, will be looking to the creation of a safe, respectful and inclusive sector to serve as an exemplar for workplaces across our community. The Commission has made 16 recommendations that are aimed at continuing to drive education and cultural change within the legal profession, with a view to stamping out harassment, including sexual harassment, across the sector. The recommendations also suggest means by which existing complaint mechanisms may operate to ensure that complaints can be made in a confidential and supportive environment. The Commission has not recommended that a new complaint body be established. The data the Commission received about the usage of existing complaints mechanisms evidences a lack of engagement with all of them. The information gathered from participants overwhelmingly suggests that this lack of engagement is due to a lack of confidence in every one of those mechanisms. The very clear message is that, of itself, no complaint mechanism will cure the problem and what is in fact required is ongoing cultural change. The recommendations, which the review team developed having regard to the wealth of efforts currently underway, aim to address fundamental gaps in education, training and complaint practices with a view to preventing harassment and improving responses to it. Key factors in successfully continuing the cultural shift are strong leadership from those in positions of authority and an emphasis on systems that shift responsibility away from victims. For reasons explained at Part 1.2.5, this Report refers to the parties of impugned conduct as ‘victims’ and ‘harassers’. The Commission acknowledges that these terms do not sit comfortably with legal practitioners. Their use reflects the fact, however, that many instances of harassment go unreported, for reasons explored in this Report. Accordingly, there is often no ‘complainant’, nor an ‘alleged harasser’ in any formal sense. In no sense is the use of these terms intended to convey any prejudgement about the veracity of any of the participants’ accounts. I thank the Attorney-General’s Department for acceding to my request for additional resources to conduct this Review. This enabled additional staff from across that 2 OFFICIAL Department to work within the Equal Opportunity Commission (Commission) between March and April 2021, to produce this Report in a timely fashion. I am grateful to Mr Martyn Campbell, Executive Director SafeWork SA, for providing a member of his staff to assist with the Review. I also acknowledge the extensive work undertaken upon the commencement of the Review, in particular by the former Acting Commissioner, Emily Strickland, and Emily Carr, Legal Officer, both of whom continued to offer advice and support as the Review progressed. I thank everyone who contributed to the Review – survey participants, interviewees and those who provided written submissions. The New South Wales Legal Services Commissioner, Mr John McKenzie, and staff from the Victorian Legal Services Board + Commissioner also provided insight and guidance into developments within their respective jurisdictions. The Review team (to whom I am hugely grateful) comprised Lauren Clarke, Nicholas Crouch, Kim Eldridge, Liam Waddill and Colin Marsh (seconded from SafeWork SA). Their expertise, enthusiasm and diligence are brought to bear in this Report. I also thank the core staff of the Commission, who are unfailingly committed to the Commission’s valuable work and who have provided assistance to this Review. Finally, I thank the Office of Justice Policy and Analytics (Attorney-General’s Department) for their assistance in finalising the survey and their comprehensive analysis of its data. 3 OFFICIAL Executive summary The Review was requested by the South Australian Legislative Council on 14 October 2020. The Attorney-General appointed the then-Acting Commissioner for Equal Opportunity, Ms Emily Strickland, to undertake the Review on 24 November 2020.
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