CALD Meeting Papers
A meeting of the Council of Australian Law Deans will be hosted by the School of Business and Law at Edith Cowan University on Friday 4 October 2019 between 9.15am and 4.00pm as follows:
Venue: Council Chambers, Building 1, Level 4, Room 1.447 Edith Cowan University 270 Joondalup Drive, JOONDALUP WA 6027 (refer campus map on page 3) ECU Contacts: Kaye Bell (08) 6304 5046 | [email protected] / [email protected] Holly Johnson (08) 6304 5304 | 0481 900 868 | [email protected]
CALD Chair: Professor Lesley Hitchens, Dean, Faculty of Law, University of Technology Sydney
Deans/Heads of School (or nominees) in attendance from the following Law Schools: Australian Catholic University, Professor Rocque Reynolds, Dean of Law, Thomas More Law School Australian National University, Associate Professor Vivien Holmes, Associate Dean (Education), ANU College of Law (for Professor Sally Wheeler) Bond University, Professor Nick James, Executive Dean, Faculty of Law Charles Darwin University, Associate Professor Alan Berman, Dean of Law, College of Business and Law Charles Sturt University, Associate Professor Alison Gerard, Director, Centre for Law and Justice CQUniversity Australia, Professor Stephen Colbran, Head (Discipline of Law), School of Business and Law Curtin University, Professor Robert Cunningham, Dean and Head of School, Curtin Law School Deakin University, Professor Matthew Groves, Deakin Law School (for Professor Jenni Lightowlers) Edith Cowan University, Associate Professor Joshua Aston, Associate Dean (Law), School of Business and Law Flinders University, Associate Professor Tania Leiman, Dean, Flinders Law School Griffith University, Associate Professor Therese Wilson, Dean of Law and Head of School, Griffith Law School James Cook University, Professor Elizabeth Spencer, Dean, College of Business, Law and Governance La Trobe University, Associate Professor David Wishart, Acting Head of School, La Trobe Law School Macquarie University, Professor Marc de Vos, Dean, Macquarie Law School Monash University, Professor Bryan Horrigan, Dean, Faculty of Law Murdoch University, Ms Sonia Walker, Head of Discipline, Law and Criminology, School of Law RMIT University, Dr Anne Kallies, Senior Lecturer, Graduate School of Business and Law (for Professor Kathy Douglas) Southern Cross University, Associate Professor John Page, Deputy Head of School, Research, School of Law and Justice (for Professor William MacNeil) Swinburne University of Technology, Associate Professor Amanda Scardamaglia, Incoming Acting Dean of Law, Swinburne Law School (for Professor Dan Hunter) The University of Adelaide, Professor Melissa de Zwart, Dean of Law, Adelaide Law School The University of Melbourne, Professor Pip Nicholson, Dean, Melbourne Law School The University of Newcastle, Professor Tania Sourdin, Dean and Head of School, Newcastle Law School The University of Notre Dame, Australia, Professor Michael Quinlan, Dean, School of Law Sydney The University of Queensland, Professor Heather Douglas, Deputy Dean (Research), TC Beirne School of Law (for Professor Patrick Parkinson) University of South Australia, Professor Jennifer McKay, School of Law (for Professor Rick Sarre) The University of Sydney, Professor Simon Bronitt, Head of School and Dean, Sydney Law School The University of Western Australia, Professor Natalie Skead, Dean, Law School University of New England, Professor Michael Adams, Head of School, School of Law University of Southern Queensland, Professor Reid Mortensen, Head of School, School of Law and Justice University of Tasmania, Professor Tim McCormack, Dean and Head of School, Faculty of Law University of Wollongong, Professor Colin Picker, Dean of Law, Faculty of Law University of the Sunshine Coast, Professor Jay Sanderson, Head of School, School of Law and Criminology UNSW Sydney, Associate Professor Melissa Crouch, Associate Dean (Resesarch), UNSW Law (for Professor George Williams) Victoria University, Professor Michael Stuckey, Dean, College of Law and Justice Western Sydney University, Professor Anna Cody, Dean, School of Law
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Apologies: Australian National University, Professor Sally Wheeler OBE, Dean, ANU College of Law Deakin University, Professor Jenni Lightowlers, Dean of Law, Deakin Law School Queensland University of Technology, Associate Professor Allan Chay, Acting Executive Dean, Faculty of Law RMIT University, Professor Kathy Douglas, Dean, Graduate School of Business and Law Southern Cross University, Professor William MacNeil, Dean of Law and Head of School, School of Law and Justice Swinburne University of Technology, Professor Dan Hunter, Foundation Dean of Law, Swinburne Law School The University of Notre Dame, Australia, Professor Joan Squelch, Dean (Fremantle), School of Law Fremantle The University of Queensland, Professor Patrick Parkinson AM, Head of School and Dean of Law, TC Beirne School of Law University of Canberra, Associate Professor Benedict Sheehy, Head, School of Law, School of Law and Justice University of South Australia, Professor Rick Sarre, Dean and Head of School, School of Law UNSW Sydney, Professor George Williams AO, Dean, UNSW Law
Invited LADRN Chair, Associate Professor Bernadette Richards, Adelaide Law School (apology received, Dr Joe Guests: McIntyre, Senior Lecturer, School of Law, University of South Australia attending as LADRN Deputy Chair (item B03(6)) LEAD Chair, Ms Judith Marychurch, Assistant Dean (Teaching and Learning), Melbourne Law School (apology received – Professor Nick James to report on behalf of LEAD at item B05(2))
EO to the Vi Kacevska, CALD Coordinator Committee:
Meeting Timetable: 9:15 – 9:30 Welcome and Coffee 9:30 – 11:00 Sections A. Formal Matters and B. Executive Reports 11:00 – 11:15 Morning Tea 11:15 – 12:30 Sections B. Executive Reports continued and C. Items for Discussion/Decision 12:30 – 1:00 Lunch 1:00 – 2:30 Section D. Key Topic for Discussion 2:30 – 2:45 Afternoon Tea 2:45 – 4:00 Sections E. Items for Noting and F. Any Other Business
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The full downloadable map is available at: https://www.ecu.edu.au/__data/assets/pdf_file/0014/210434/Joondalup‐campus‐map.pdf
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9:15 Coffee and Registration Welcome to CALD members by Professor Maryam Omari, Executive Dean, ECU School of Business and Law
A. Formal Matters
9:30 A01: Welcome, introductions and apologies
A02: Confirmation of minutes of the last meeting A02 7‐18 Draft minutes of the meeting held on 15 March 2019 at Victoria University for approval.
A03: Matters arising from the minutes A03 19‐21 Members are invited to raise any matters not otherwise arising under this agenda.
B. Executive Reports
10:00 B01: Chair’s Report – Professor Lesley Hitchens B01 22‐25 (1) General matters (2) Recommendations from the ‘making CALD effective’ discussion B01(2) 26‐54 (3) Hosting of 2020 meetings (4) Substantive topics for discussion at 2020 CALD meetings 10:20 B02: Treasurer’s Report – Associate Professor Alison Gerard B02 55‐59 (1) Summary (2) 2019 budget v actual (3) CALD budget 2020 10:40 B03: Legal Research Report – Professor Stephen Colbran B03 60‐62 (1) Journal use of ORCiD and DOI (2) CALD Research Mentoring Program (3) Australian Legal Research Awards B03(3) 63‐85 (4) Australian and New Zealand Standard Research Classification (ANZSRC) B03(4) 86‐111 Review (5) CALD Quality Law Journal Pilot Project (6) LADRN Update (oral report by Dr Joe McIntyre, Deputy Chair of LADRN) 11:00 Morning Tea
11:15 B04: International Matters Report – Professor Pip Nicholson B04 112 (1) China Juris Doctor (JD) accreditation update (2) India – Recognition of Australian universities accredited in 2015
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11:30 B05: Legal Education Report – Professor Nick James B05 113 (1) LEAD response to LACC on the changes to the Priestly 11 on behalf of B05(1) 114‐119 Australian law schools (2) LEAD update B05(2) 120‐126 11:45 B06: Standards, Accreditation and the Legal Profession Report – Professor Tania B06 127‐130 Sourdin (1) CALD Australian Law Schools Standards (a) Commentary and feedback on the CALD Standards B06(1)(a) 131‐146 (b) Suggested changes to the CALD Standards B06(1)(b) 147‐167 (c) Further information for CALD Standards revision B06(1)(c) 168‐172 (2) Update on the certification status of Australian law schools
C. Items for Discussion / Decision
12:00 C01: Proposal for Annual Legal Academy Report – Professor Nick James C01 173‐188
12:25 C02: Constitutional changes/amendment C02 189‐190 Election of Chairs to CALD Standing Committees
12:30 Lunch
D. Key Topic for Discussion
1:00 D01: Legal Education and Technology – Professor Nick James D01 191
2:30 Afternoon Tea
E. Items for Noting
2:45 E01: Update on the First People’s Partnership working party – Professor Alison E01 192‐194 Gerard
3:00 E02: Website and social media update – Professor Melissa de Zwart (oral report)
3:15 E03: Correspondence (1) Email dated 20 Aug 2019 from Vi Kacevska to GoHosting regarding CALD E03(1) 195‐197 domain registration. (2) Email dated 21 Aug 2019 from Gabrielle Ostberg, Melbourne Law School E03(2) 198‐206 to Vi Kacevska regarding BCI Accreditation of Australian law schools. (3) Email dated 22 Aug 2019 from GoHosting to Vi Kacevska confirming E03(3) 207‐208 registration of CALD domain names. (4) Email dated 30 Aug 2019 from Gabrielle Ostberg, Melbourne Law School E03(4) 209‐218 to Professor Lesley Hitchens regarding India accreditation. (5) Email dated 31 Aug 2019 from Professor Lesley Hitchens to Gabrielle E03(5) 219 Ostberg, Melbourne Law School regarding India accreditation. (6) Email dated 11 Sep 2019 from Professor Stephen Colbran, Chair of the E03(6) 220‐221 CALD Standing Committee on Legal Research to CALD Deans regarding CALD Quality Law Journal Pilot.
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Agenda Item Paper ref Page ref (7) Email dated 12 Sep 2019 from Professor Pip Nicholson, Melbourne Law E03(7) 222‐228 School to Professor Lesley Hitchens regarding the Juris Doctor Certification in China. (8) Letter of invitation by email dated 13 Sep 2019 from David Tune AO PSM, E03(8) 229‐231 NDIS Act Review Secretariat, Department of Social Services to Professor Lesley Hitchens regarding the NDIS Review. (9) Letter by email dated 13 Sep 2019 from Ms Brooke Hartigan, Minister‐ E03(9) 232‐278 Counsellor (Education and Research), Beijing, Australian Embassy 2019 from Professor Pip Nicholson, Melbourne Law School regarding Juris Doctor Certification in China.
F. Any Other Business 3:30 F01: International Bar Association: Bullying and harassment in the legal F01 279 profession
(1) Email dated 13 Aug 2019 from Kieran Pender, Senior Legal Advisor, Legal F01(1) 280‐410 Policy & Research Unit, International Bar Association to Professors Lesley Hitchens and Bryan Horrigan attaching Bar Association (IBA) report Us Too? Bullying and Sexual Harassment in the Legal Profession.
(2) Email dated 18 Sep 2019 from Kieran Pender to Professor Lesley Hitchens F01(2) 411‐419 attaching slides.
Members are invited to raise any other matters at this item.
4:00 Meeting close
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DRAFT MINUTES MEETING HELD ON 15 MARCH 2019 Victoria University, Melbourne, Victoria
CALD Meeting Paper Page 7 CALD Meeting - 4 Oct 2019 Item A02
MINUTES OF MEETING HELD ON 15 MARCH 2019 AT VICTORIA UNIVERSITY, MELBOURNE, VICTORIA
PRESENT: Professor Lesley Hitchens (Chair), Professor Melissa de Zwart (Deputy Chair), Professor Sally Wheeler OBE, Professor Rocque Reynolds, Professor Stephen Colbran, Professor Robert Cunningham, Associate Professor Alan Berman, Associate Professor Alison Gerard (Treasurer), Mr Krishna Prasad, Associate Professor Therese Wilson, Associate Professor Kerstin Steiner, Professor Pip Nicholson, Professor Marc de Vos, Professor Bryan Horrigan, Professor Jürgen Bröhmer, Professor Tania Leiman, Professor Dan Hunter, Professor Tania Sourdin, Professor Michael Quinlan, Professor Joan Squelch, Professor John Humphrey, Professor William MacNeil, Professor Michael Adams, Professor Fiona Rohde, Dr Joe McIntyre, Professor Jay Sanderson, Professor George Williams AO, Ms Karina Murray, Professor Anthony Gray, Professor Natalie Skead, Professor Michael Stuckey, Professor Matthew Groves, Professor Nick James
Apologies: Professor Patrick Keyzer, Professor Patrick Parkinson AM, Professor Wendy Lacey, Professor Colin Picker, Professor Cameron Stewart (Acting), Professor Tim McCormack, Professor Steven Freeland, Associate Professor Kathy Douglas, Professor Penny Weller, Professor Reid Mortensen, Professor Jenni Lightowlers
Absent: Professor Elizabeth Spencer
Guest: Associate Professor Bernadette Richards, chair of LADRN
Minutes: Ms Pam Barnes
FORMAL MATTERS
1. Welcome, Introductions and Apologies
Professor Michael Stuckey gave the Acknowledgement of Country.
The Chair welcomed all members and guests to the meeting and noted the apologies.
Introduction of Associate Professor Bernadette Richards, Chair LADRN, plus all members of CALD who were in attendance today.
2. Confirmation of Previous Minutes of Meeting
Correction to page 8. Last paragraph: strike out “at Level C and above” and replace with “ ….level E and more broadly and consulting………”
After this correction was discussed and noted, the draft minutes of the meeting of 5 October 2018 were adopted as an accurate record of the meeting.
3. Matters arising from the Minutes 5 October 2018
Most action items will be addressed on the agenda and will be discussed at that specific time.
The Agenda was rearranged slightly to ensure that the LADRN report could be discussed early.
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National Research Mentoring Scheme.
This had been approved at the last meeting, but one item was left outstanding, namely the statement regarding workload.
Action: It was agreed that the wording should be:
• “Where academics do make a contribution to the NRMS Deans are encouraged to consider this as an element of contribution to service and, where appropriate, to consider workload implications.
• 12 month review of NRMS could include assessment of burden on mentors.
It was noted that LADRN had offered to implement the mentoring scheme.
Associate Professor Richards advised that LADRN is working on a list of potential mentors and the mentoring scheme, i.e. how to appoint and look after mentors, with information to be pulled together for report back to CALD. Administrative issues will be discussed with CALD if funding/support required. The expressions of interest call out will be in second half of 2019 for implementation, 2020.
Proposal for CALD Research awards
The Chair noted that the proposal for the CALD research awards had been approved at the last meeting, but decisions has not been made regarding implementation of the awards scheme, and there was a lack of clarity about the number of awards.
It was clarified that CALD had intended at the October meeting to extend the number of prizes as listed in the previous minutes; however, these needed to be considered in terms of criteria etc.
Associate Professor Richards (on behalf of LADRN) explained that at the LADRN meeting the implementation of the research awards had been considered:
The assessment, awarding, application process and eligibility criteria needs to be clear.
The process for application will include a narrative with explanation.
A website portal to enable application will be needed and this will require funding.
Who will be on assessment panels? Whether international or national panel members are required must be considered. We need to look at how panels are constituted and if we can co‐op specialists to the panel.
CALD had decided that there should be no caps on the number of applications per Law School. However, LADRN advised that this may prove unmanageable, and should be reconsidered.
Assessment criteria must be clear and concise, and dates finalised as to when the awards will be held and where they will be held. Working group formed to move forward with awards process.
Timeline issue cannot be rushed, we need to be cautious, clarity is needed for proposals, and we must decide what the prizes are, etc.
Background work is being done by LADRN, and they will provide a framework paper regarding the implementation of the research awards proposal for the CALD July meeting.
The Chair suggested that LADRN should also review the amendments made by CALD at the last meeting in relation to the original process, to ensure there is no overlap or unmanageable ideas. It is hoped CALD will be able to provide administrative support for the awards implementation.
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Discussion arose regarding when we award and how we award and this will need to be addressed, as will the number of awards and if monetary or not. LADRN is to come back to CALD with proposals for approval but we need to keep this project moving and liaise with the Executive. The cost of awards was discussed and whether the budget will be $5000 or more. CALD is required under its constitution to hold a meeting prior to the ALTA conference and this could coincide with awards. The Chair suggested $10,000 or $15,000 might be a more realistic figure for funding.
A suggestion was made for a five‐year plan for the awards and that initial costs for setting up this proposal may apply. Also discussed was the lifetime achievement award which should come from CALD. The question was raised if it will be annually or bi‐annually but this still to be decided. The Chair suggested that this is something LADRN can assist with in their proposal. A suggestion was made that perhaps we may have too many awards to manage. The lifetime award could be a case‐by‐ case basis rather than an annual award and this could vary depending on circumstances.
The Chair gave thanks to LADRN for their assistance and advice with the awards.
Action: Chair proposed that LADRN proceed as discussed to develop an implementation framework and advice on the awards process etc. Also agreed that CALD Executive will assist LADRN in moving this project forward. To report to July CALD meeting.
CALD Working Party on Indigenous Representation and Cultural Competency
Professor William MacNeil thanked members of the working party who met last year and drafted terms of reference and advised that newly invited members were all accepted to be part of the expanded group. Diversity and configuration of the working party was mentioned, and Professor William MacNeil was pleased with the outcome. The terms of reference were circulated to the Working Party and a robust critique from all members was received with second iteration circulated with cc to Chair of CALD. A meeting will be held in near future to make changes to updated terms of reference and will then have a third iteration for sign off at the next CALD meeting in July.
It was mentioned the working party should take time to get the language right and purpose of the terms of reference. The key reference will be to set up a “first people” advisory board to partner with CALD to provide assistance. The final iteration should have clarity and be concise. CALD is awaiting feedback from the working party and should have final iteration by end of this month. The Executive and Chair of CALD will be able to provide their feedback to the third iteration and present final version for July meeting of CALD.
The Chair mentioned it was important to have the best composition of a working party to get the project right. It was advised that the document should have a clear process and timelines to proceed to final version, whilst acknowledging that the process should also be given time to ensure that the right voices were being listened to.
It was advised that we do not have up to date data on Indigenous student numbers in law schools across Australia. We do not have postgraduate data as there is low participation at this level. Need to have continuous and updated data so we can address the Indigenous issue of non‐participation in Universities. It was mentioned that CALD standards should refer to Indigenous participation in law schools.
Action: The third iteration of terms of reference to be provided at the July CALD meeting with input from the CALD Executive prior to that meeting.
LEAD funding and LADRN funding discussed. The Chair advised that due to an oversight inconsistent funding had been agreed for LEAD and LADRN (10,000 and 5,000, respectively), CALD wants to bring in parity and said that $10,000 should be allocated to LADRN as well. It was stated that CALD work on calendar year budgets and the allocations should be $10,000 plus GST.
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LACC and Indigenous Cultural Competence
Professor Natalie Skead followed up with the former Chair of CALD, Professor Bill MacNeil, about whether a conversation with Professor Sally Kift had taken place on the receptiveness of LACC to Indigenous cultural competence. Professor MacNeil advised this had not yet occurred and undertook to do so.
Action: Professor MacNeil to follow up with Professor Sally Kift on LACC and Indigenous Cultural Competence receptiveness.
EXECUTIVE REPORTS
4. Chair’s Report
The Chair advised that Professor Wendy Lacey, Dean of UniSA Law School is stepping down as Dean in April and acknowledged her contribution. Professor William MacNeil was acknowledged for his service as Chair in 2017‐ 2018. We also say farewell to Professor Paul Fairall, Dean of Curtin Law School and welcome Professor Robert Cunningham as Acting Dean.
Professor Jürgen Bröhmer, Dean of Murdoch Law School has taken on a new role at Murdoch as Dean of External Engagement, College of Arts, Business, Law and Social Sciences and we welcome Professor Sonia Walker as the new Head of the Law School.
Also noted that Professor Michael Adams has recently taken up the role of Dean at UNE and Professor Marc de Vos who commenced as Dean of Macquarie Law School in October 2018.
The Chair advised that Lynette Cucinotta has stepped down as executive officer. Lynette’s role was described as ‘executive officer’ but the list of tasks were more of an administrative assistant role. An executive assistant position is needed to support the work of CALD, the executive and committees. There is also benefit in having someone being able to undertake project work, but there may not be sufficient work for this to be an ongoing role. It may be better for those managing a project/working party to be able to apply to the CALD Executive for some funding to support a project on an ad hoc basis. Deans are more likely to have someone in their faculties who they might like to use also. Professor MacNeil advised that CALD does need admin assistance and there are emails, correspondence and the website which needs updating and continually monitoring.
It was suggested we should employ an administrative assistant for 1‐2 days (3 may be needed) per week for CALD administration and on ad hoc basis for project work.
Action: It was agreed that the Executive be authorised to resolve the administrative support arrangements for CALD, and report back to CALD. There was also support for the project support on an ad hoc basis.
On a related matter, the Chair advised that at present there is insufficient clarity around the authority of the Executive. This often slows decisions and action and means that CALD meetings are taken up with operational matters. The Executive should be able to make decisions and be given clarity around spending and operational/logistical decisions, with report back to CALD.
Action: It was agreed that the day‐to‐day matters of CALD should be the responsibility of the Executive whilst CALD meetings should primarily focus on policy and strategic matters. It was proposed to proceed with arrangements for the administrative support of CALD and to delegate to the Executive to action this.
CALD executive will prepare guidelines for consideration by CALD.
The Chair advised that she is stepping down in her role as the CALD representative for the Australian Pro Bono Centre Board and that another representative should be appointed. Chair requested that members speak to her about this group during the breaks. The meetings are at Uni NSW or by Zoom but at least once a year there is a
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Action: Deans should contact Professor Hitchens if interested in being the CALD representative on the Australian Pro Bono Centre Board.
CALD Website and Social Media
The website needs to be reviewed as it is currently a static website and suggested it would be good to have more flexibility and to use share drives for easier communication. In 2016 a paper was produced, some actions were taken, but this needs to be revisited. The CALD Executive, with advice from members, needs to improve communication, its public face and Twitter activities. Thanks to Professor Dan Hunter and others for the work they have achieved on the website. We now need to look at a more interactive website and a more expansive communications plan.
Action: CALD Executive will discuss this matter further with consultation with Professor Hunter.
5. Treasurer’s Report
The Treasurer, Associate Professor Alison Gerard, gave the following report.
‐ Profit from 2018 was approx. $74,000.
‐ Balance in our account now is $266,000
‐ We have $135,000 in income outstanding (subscriptions)
We are still awaiting invoices to be paid from some universities for this year subscriptions. It was advised that only certain people can operate accounts and they should be added or removed by Executive as required. Decision was made to keep the external book keeper who enters data and produces the reports. The Treasurer has set up a term deposit for three months as requested. Question on GST claim back was referred to members for advice. Also question raised regarding auditing of accounts.
Associate Professor Gerard was thanked for her work on the budget and Treasurers report.
Motion passed that CALD agree to remove the following names as signatures on the CALD account:
Jürgen Bröhmer Shirley Jones Fiona Peters Murray Raff Katharine Massy
Motion passed that signatories to the CALD bank account can only be added and removed with the approval of:
a) a majority of CALD members at a general meeting; or b) a majority of the CALD Executive.
Motion passed that the CALD Treasurer subscribes to MYOB to enable data entry to occur directly, whilst continuing with the external bookkeeper for profit/loss and balance sheets.
Action: Associate Professor Gerard to follow up with NAB to have names removed from the account as above and to purchase MYOB software.
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6. Learning Outcomes and Academic requirements for admission
The LACC paper, proposing a change to the academic requirements for admission was discussed. The 11 prescribed Areas of Knowledge known as the ‘Priestley 11’ will be redrafted to focus upon learning outcomes rather topics to be covered. It was reported that there had been extensive academic involvement in the redrafting. The Priestley 11 will be better aligned to how we currently teach law and a good move forward. Members of LACC were supportive of the proposal at their recent meeting.
It was advised that this will take time as it will be a legislative process. Each representative on LACC has been asked to provide feedback by 17 May 2019 and if it supports the proposal. Broader consultation process will then be required before going forward and it will be a slow process.
Professor Nick James advised that at the end of the process we will still have the same Priestley 11 in a different form. It will possibly be easier to demonstrate compliance in reviewed document once completed. The LACC Standards go well beyond the content of core law subjects, so compliance with the Priestley 11 is only one part of the accreditation process these days. The proposal also emphasises the fact that the descriptions are intended to be indicative rather than prescriptive, something that was widely welcomed by CALD.
The possibility of a similar emphasis upon ‘indicative not prescriptive’ informing a redrafting of the LACC Standards and the PLT standards was discussed.
Professor MacNeil suggested this proposal reflects a significant change in position by LACC and CALD should support it.
Professor James suggested we could partner with LACC and take a leadership role with the changes.
Chair advised that the future role of LACC is uncertain, especially now that NSW and Victoria are part of the Uniform Law (with WA to join in 2020), and the current Chair of LACC may step down later this year.
Professor James set out four options for the next step:
1. Feedback from CALD members at this meeting be sent to LACC along with a statement of overall support for the proposal 2. CALD members send feedback to Professor James by the end of the week 3. Associate Deans (LEAD) network be asked to provide input 4. Deans go back to our faculties and get colleagues to provide input
Action: After discussion it was agreed that option 1 be adopted and Professor James to finalise a response to submit to LACC.
7. Standards and Accreditation
7.1 Australian Law School Standards Committee requirements for admission Professor Tania Sourdin discussed the report regarding the Australian Law School Standards Committee and also where CALD standards may need revision. A process and discussion relating to changes to standards will be established in the coming months. Professor Sourdin sought some funding from CALD for the revision of the Standards project, in the region of $5,000.
With regard to law schools that had not yet undergone certification the Chair advised she had been in contact with those Law Schools. In addition, the Chair had asked Professor Alex Steel to do a first review of the documentation to support the Standards Committee. The Chair highlighted the fact that some members wanted to step down but will stay on for this certification and the review but would appreciate some help. Call out to
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Questions were raised on the length of certification and it was advised that accreditation is five years from 2017.
Actions; It was agreed: Page 56 of proposal ‐ remove “initial” from the statement around certification List of all law schools certified be placed on CALD website with the date of certification CALD approved the appointment of a project manager to support the working party led by Professor Sourdin, and an amount of $5,000 be available with possibility of further funding
7.2 Development in the UK regarding admission processes (for noting) Professor Sourdin reported on the UK proposalframeworkproposal to introduce an examination for those seeking to practice law (instead of being required to hold a law degree) and stated that it was quite different from the Australian admission process. It was stated that this may have implications for UK lawyers who want to practice in Australia in the future. It was noted that this will change the landscape in the UK in the future and we should note these changes. Professor Sally Wheeler noted that the UK model is already quite different from the Australian model whereby graduates do not have to undertake a law degree but can undertake instead the Legal Practice Course. It was stated that the LPAB is aware of this issue for foreign lawyers. The Chair felt there would be no rush in Australia to follow the UK model.
7.3 Graduate employment update Professor Sourdin reported that they have received all survey responses and data included with meeting documentation for noting. It was stated that this data had a positive outcome, but uncertain employment is still an issue for some students. A question was raised on what to do with data now. It was suggested to put the data findings on the website with few tweaks for information purposes. There is a need to clarify if it is students finishing in 2017 and starting employment in 2018. Also the material needs to mention undergraduate law students and clarify JD and LLB students. Suggestion to hold the document for any press release etc but use as a CALD document for meetings and lobbying. Professor MacNeil mentioned that data should be reviewed regularly. Professor Pip Nicholson advised they do an employment survey every 18 months and have shared the methodology with one other interested law school.school
Action: Professor Tania Sourdin will circulate the revised fact sheet prior to any publication or uploading to website or releasing any communication.
8. Research
8.1 The Chair stated that the journal quality list was an important project and has been discussed over many meetings and we are now in a position to proceed. Thanks to LADRN for their work in 2018. CALD is very well served to have LADRN and LEAD to provide their expertise to CALD. LADRN worked on advice to CALD around the journal quality exercise; the advice was considered at the CALD October meeting, and decisions made on that basis. It is important that we proceed on the basis of those decisions, and not reopen again. The set of documents is before CALD today, and many thanks to Professor Stephen Colbran for bringing these detailed documents to CALD. These now reflect the implementation of the decisions made regarding this exercise. Documents should be reviewed, and questions raised with Professor Colbran in the short term.
8.2 Professor Colbran suggested that whilst the documents were ready, they should be reviewed by a contract lawyer. A CALD Quality Journals App presentation was made to CALD members with an explanation given by Professor Colbran on how it works. It was advised that the App describes the journal codes and what code can be used for various publications. Professor Dan Hunter created the initial App with Professor Colbran adding additional functionality.
Professor Therese Wilson asked a question in relation to the listing of quality journals and how they will work for universities. Discussion arose regarding quality assessments and how they are allocated and how do law schools justify research. Professor Nicholson asked who will choose the tenderer and what members of CALD will give
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Professor Colbran was acknowledged and thanked for his work to date on this project.
Expenditure of up to $50,000 for the pilot project was requested and CALD supported this proposal for expenditure.
Action: it was agreed:
Professor John Humphrey, Professor Nicholson would review the documents as a final check and provide Professor Colbran with feedback within two weeks. Professor Nicholson would seek a legal review. Suggestions for tenderers are to be forwarded to Professor Colbran by Friday 29 March 2019. It would not be publicly advertised. Suggestions for appropriately qualified peer reviewers from each law school are to be sent to Professor Colbran by 22 March 2019. The list of review tenders will be put to the Executive in conjunction with the working party, comprising o Professor Hilary Charlesworth, o Professor Kathy Bowery, o the Chair of LADRN. Once the list of review tenders is approved, the request for proposals will be sent to the approved list. Agreed expenditure of up to $50,000.
8. 1 Report from Associate Professor Richards, LADRN
Professor Richards advised that the LADRN research conference will be held this year.
LADRN has been asked by the Chair of CALD Research Committee to prepare the response to the FoR Review. LADRN appreciated the additional $5000 to be used for data collecting. LADRN will send through the document to the Executive before next meeting as timeline date is 7 June 2019 and will email Deans for response, but the Executive will need to make a decision by the deadline.
An ERA response paper will be completed by LADRN to be presented to CALD and will be circulated separately. Concerns were raised on measuring our discipline using metrics. Recommendations will be included in the paper. The ambiguity of measures impacted engagement, and a best guess process was used. LADRN is keen to pool resources and knowledge with others. The Chair mentioned the ERA results will be out soon.
A question was raised about how we circulate information to staff. LADRN and CALD will circulate information regarding jobs, funding, grants as we have agreed in the past. It was suggested to circulate any information through CALD and copy in the chair of LADRN for further circulation if required.
9. Constitutional changes/amendment / Election of officers/standing committee members
No changes notified. Professor Melissa de Zwart’s term as Deputy Chair expires at this meeting, but she is willing to stand again if no other nominations received. To discuss further in Other Business.
The Chair advised that with change of Deans for some universities, some standing committees may need a renewal of membership, but this item would be held over pending the afternoon’s discussion.
FOR NOTING
10. International
Professor Nicholson advised that she and Professor Bröhmer completed a handover of the portfolio. Professor Nicholson is willing to assist CALD with any International matters. She reported that she had been trying to follow
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Accreditation process with other countries discussed and it was advised to let Professor Nicholson know if you have any queries re International accreditation.
11. Correspondence
Item 4 ‐ Page 110 has only half of the letter to Professor Sandford Clark AM attached and this to be redistributed. Action: Page 110 letter to Professor Sandford Clark needs to be recirculated in full with minutes.
Item 5 – Page 111 Invitation from Richard Meyer to Chair re GLEAC conference. Professor William MacNeil advised he would be willing to attend.
Item 7 – Page 116 ‐ 120 Emails from KPMG re academic remuneration benchmarking received. Responded and we will keep on file for future reference.
Item 8 ‐ Page 121 – email from Black Dog, re student wellbeing to be recirculated to Deans for action. Action: Page 121 email from Black Dog to be recirculated to Deans for further action.
Correspondence closed.
CONSULTATION
12. CALD’s role – (paper attached p 122 to 135) ‐ Making CALD Effective – group discussion
The Chair noted that whilst we have considerable diversity amongst the law schools in size, region, age, and focus, we nevertheless have a shared commitment to excellence in legal research and education, and in demonstrating the importance of the law discipline. CALD has a role to play in supporting Deans and the work of the legal academy. The discussion today is to help to make CALD effective for the discipline and valuable for each dean and law school.
Group Discussion reports:
Substantive business at CALD ‐ Like to receive clear and concise papers; hot topic for each meeting with paper to be attached; on point and relevant to topic. Correspondence still to be included; everything should be read prior to meeting. New deans meet prior to the dinner. Invite NZ colleagues to meetings.
‐ Outward focus on benefits of law and inward focus on benefits to universities; International focus; visiting international deans; training for deans; induction for new deans, outreach program for Deans; help to deans who want it
‐ Relevant data; collection very important for Indigenous, female. Annual survey prior to first meeting of 2019. Circulation of information from LEAD and LADRN to members.
‐ Assumption that our strategic priorities are encompassed by committees and structure and we need to break apart and consider what are our strategic priorities as a body and what do we want to focus on. Substantive business has to be on these topics and any other to be dealt with outside this structure.
‐ Nothing major to add to what has already been said.
CALD Standing Committees ‐ Rethink this structure and look at perhaps a new structure. Strategies and priorities need to dictate structure for committees. Mechanisms for feeding new ideas into the structure should exist. Empower the Executive to make decisions.
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‐ Mechanism for removing people from standing committees could be put in place. Expanded standing committees which could be Indigenous and other specific areas. Communications review.
‐ Benefit for ad hoc committees for smaller projects; standing committees still there but call in other people as required.
‐ Need a pool of expertise to report to Executive and need to keep this. Refresh membership of committee annually and also members of standing committees to be accountable and committed.
Frequency, location, attendance at meetings ‐ Important that CALD chair have a broad overview of standing committees and other committees, but difficult for an agreed work plan as unpredictable. Three per year important because of social interaction and informal connections. Did not agree that there be a focus on East coast capital cities. Yes to having deputies attending where they were speakers or contributors and be observers. Someone to critique meeting and then provide feedback.
‐ 2 not 3 meetings per year, 1 in 4 meetings in West. Some thought deputies should not attend as may decline effectiveness, but could be exceptional circumstances which Chair should allow. Dial in availability in circumstances for some.
‐ Remove ALTA connection, 2 meetings per year, 1 state based and 2 national. Video conferencing, every fourth meeting to be in less central location.
‐ Two meetings per year. Agreed work plan difficult. No deputies. Some meetings to have professional development.
‐ 3 meetings per year, but meeting with ALTA needs to be removed. Location one out of 4 in West not sufficient but have been spread around country in last couple of years. Long haul flights should not be an issue. Did not mind deputies attending.
Other suggestions:
‐ Not to clash with other conferences.
‐ July meeting has most apologies so this should be reviewed if still viable or change month.
‐ State meetings are held in some states regularly which then bring together Deans and new Deans. Mentoring can be done locally and various politics in each state.
‐ Valuable for isolated states to join with other Deans. South Australia meets regularly. NSW Deans meet but not all Deans in regional centres.
‐ July meeting discussed and perhaps change date to August.
‐ Professor MacNeil questioned if we could get through all issues and discussion with fewer meetings? Limitations with 2 meeting and 3 meetings would be better or 2 with a discretionary 3rd meeting.
‐ Professor Horrigan highlighted that we should reverse the checking of decisions and the Executive should make some decisions but not on a policy issues, so we can move quickly and be more effective.
Chair advised that the Executive will look at all feedback. She suggested that the view was that 3 meetings was valuable, but we need to make sure that substantive business is covered, and outcomes achieved. We could better organise some of the operational and general communication matters via emails and other communications.
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It was suggested that the change to the meeting linked to the ALTA conference required a change to the CALD Constitution and minuted and that the Constitution should be made accessible to members. The Constitution is available on the CALD website.
The Executive The Council supported the concept (as discussed earlier in the meeting) that the Executive should be able to make decisions and give clarity around spending and operational/logistical decisions, reporting back to CALD.
OTHER BUSINESS
The Chair advised that Professor Melissa de Zwart is elected as Deputy Chair as no other nomination was received.
The Chair reminded CALD that if anyone is interested in taking on the role on the Pro Bono Centre Board, and they should approach her for further information.
Professor Colbran offered a point of information that TEQSA required that Central Queensland academics had to do scholarship and sessional staff had to undertake scholarship. It should be anticipated that TEQSA will roll out this change across the sector in subsequent audits.
The Chair thanked members, Professor Michael Stuckey for hosting CALD, and he and Ms Pam Barnes for their assistance in organising the event.
Meeting closed 3.25pm.
Next Meeting: TBC – July meeting yet to be determined
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Timeframe for Completion Agenda Item Action To Be Taken and Person Responsible Status
3. Matters arising from the previous meeting
National Research Mentoring Where academics do make a contribution to the NRMS, Deans are To be followed up in Scheme encouraged to consider this as an element of contribution to 2020. service and, where appropriate, to consider workload implications 12 months review of NRMS could include assessment of burden on mentors
Proposal for CALD Research Awards Chair proposed that LADRN proceed as discussed to develop Report prepared and implementation framework and advice on the awards process etc. for discussion at Also agreed that CALD Executive will assist LADRN in moving this October 2019 project forward meeting.
CALD Working Party on Indigenous Third iteration of TORs to be provided at the July CALD meeting Update on Working Representation and Cultural with input from the CALD Executive prior to that meeting party to be provided Competency at October meeting.
LEAD and LADRN Funding It was approved that $10,000 be allocated for each group on a continuing basis but reviewed annually and each group must present work plans etc to CALD as set out in the terms of reference for LADRN and LEAD.
4. Chair’s Report
Administrative Assistance It was agreed that the Executive be authorised to resolve the Done administrative support arrangements for CALD and report back to CALD. There was also support for the project support on an ad hoc basis
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Timeframe for Completion Agenda Item Action To Be Taken and Person Responsible Status
Authority of the Executive It was agreed that the day to day matters of CALD should be the In progress responsibility of the Executive whilst CALD meetings should primarily focus on policy and strategic matters. It was proposed to proceed with arrangements for the administrative support of CALD and to delegate to the Executive to action this. CALD Executive will prepare guidelines for consideration by CALD
Australian Pro Bono Centre Board Contact Professor Hitchens if interested in being the CALD Completed representative on the Australian Pro Bono Centre Board
CALD Website and Social Media CALD Executive will discuss this matter further with consultation Yet to be done with Professor Hunter
5. Treasurer’s Report
Operating Accounts It was decided that the CALD Executive can add or remove people Done to operate the accounts as necessary
6. Learning Outcomes and Academic After discussion it was agreed that option 1 be adopted and Done Requirements for Admission Professor James to finalise document to submit to LACC
7. i Standards and Accreditation It was agreed: Done (a) Page 56 of proposal ‐ remove “initial” from the statement around certification (b) List of all law schools certified be placed on CALD website and date for accreditation (c) CALD approved the appointment of a project manager to support the working party led by Professor Sourdin, and an amount of $5,000 be available with possibility of further funding
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Timeframe for Completion Agenda Item Action To Be Taken and Person Responsible Status
7. ii Graduate Employment Update Professor Tania Sourdin will circulate the revised fact sheet prior Done to any publication or uploading to website or releasing any communication
8. Research It was agreed: In progress (a) Professor John Humphrey, Professor Nicholson would review the documents as a final check and provide Professor Colbran with feedback within two weeks. (b) Professor Nicholson to work with Professor Colbran on the legal review. (c) Suggestions for tenderer to be forwarded to Professor Colbran. It would not be publicly advertised. (d) Review tenders put forward to be undertaken by Executive in conjunction with working party, comprising: ‐ Professor Hilary Charlesworth ‐ Professor Kathy Bowery ‐ the Chair of LADRN (e) Agreed expenditure of up to $50,000.
11. Correspondence
4. 26/11/2018: Letter to Professor Letter to Professor Sandford Clark needs to be recirculated in full Done Sandford D Clark AM, Chairman, Law with minutes (page 110 of meeting papers) Admissions Consultative Committee
8. 26/02/2019: Email from Black Dog Email from Black Dog to be recirculated to Deans for further action Done Institute re Student Wellbeing & (page 121 of meeting papers) Success Survey
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Report for the CALD meeting at Edith Cowan University, 4 October 2019 Professor Lesley Hitchens, CALD Chair 15 September 2019
[NOTE: It will be assumed that the report has been read, and I will be happy to take any questions. Some matters are noted for discussion/action/approval.]
(1) GENERAL MATTERS (a) Executive Coordinator As most members will know by now, Vi Kacevska is working for CALD to provide the administrative and operational support that CALD needs if we are to function effectively and to take on more projects. Some members will recall that Vi was formerly in this role when Carolyn Evans was Chair of CALD, so it has proved a very smooth transition, and Vi has been very proactive and supportive of the Executive. Vi began working with us two days per week, but we have been able to increase this in September to three days which will enable Vi to provide greater support to projects, such as the Research Awards (to be reported on this meeting). Vi also works with Melbourne University and I’m grateful for their flexibility and support for these arrangements.
(b) Welcome and Farewell to CALD members John Humphrey has stood down as Dean at QUT, and we wish him well in his future plans. Dan Hunter will be moving from Swinburne to QUT, as Dean in October. We welcome:
Allan Chay, Acting Executive Dean, QUT; and
Amanda Scardamaglia, Acting Dean, Swinburne.
Krishna Prasad, Edith Cowan, has stood down as Dean to take up the role of International Director for the Business and Law Faculty. We welcome Joshua Aston who has taken over Krishna’s role, and congratulations to Krishna in his new role.
We also welcome:
Robert Cunningham as Dean of Curtin Law. Robert has previously attended as acting but how now been confirmed as Dean.
Simon Bronitt who has commenced as Dean of Sydney Law School.
Sonia Walker as Dean at Murdoch.
(c) Australia Pro Bono Centre Board (APBC) I’m glad to be able to report that Robert Cunningham volunteered to take over my role as CALD’s representative on the APBC Board. Robert has an excellent background to support the work of the APBC and to develop the liaison with CALD and law schools. Robert was able to be appointed in time to participate in a board strategy session.
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(d) Law Admissions Consultative Committee (LACC) Following on from the February meeting, the June meeting discussed the following main issues:
CALD will be aware that proposed amendments to the Academic Requirements for Admission with more of a focus on outcomes were discussed at the CALD meeting in March. The June agreed to circulate the report for wider consultation. All law schools received an invitation to respond.
There was discussion of undertaking a further and more thorough review of the academic requirements with a suggestion that this should be undertaken in 2020. Whilst there seemed to be general approval for this, it is not entirely clear to me whether this would or would not proceed, and there was no discussion as to how. However, I tentatively suggested that if it did, but without being able to commit CALD, CALD might take this on as a project – much like we did with Statutory Interpretation.
A considerable part of the meeting was taken with discussing future arrangements for LACC. There is a possibility that the Law Council may be willing to provide secretariat arrangements for LACC for a limited period (possibly five years). Support for LACC has become a focus given the (possible) pending retirement of the LACC chair.
The Chair of LACC has been keen to develop protocols for the accreditation reviews. After discussion it was agreed that rather than develop new protocols the Chair would make the NSW and SA protocols available to admitting authorities as a guide.
(e) CALD Executive To ensure all members are aware of the members of the executive, and terms:
Position Name Term expires Chair Lesley Hitchens Oct 2020 Deputy Chair Melissa de Zwart Mar 2021 Treasurer Alison Gerard Oct 2020 Chairs of Standing Committees: * Standards, Accreditation, & Legal Tania Sourdin Oct 2019 Profession * Legal Research Stephen Colbran Oct 2019 Legal Education Nick James Oct 2020 International Matters Pip Nicholson Oct 2020
* Nominations called for.
I would like to record that I’m very grateful for the support the Executive have been providing and the work they have put in in relation to their relevant portfolios.
(2) RECOMMENDATIONS FROM THE ‘MAKING CALD EFFECTIVE’ DISCUSSION Please refer to paper B01(2) at the end of this report.
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(3) HOSTING OF 2020 MEETINGS With much thanks to the Law Schools who have offered, our:
March meeting will be held at The University of Melbourne Law School
October meeting will be held at The University of Queensland Law School.
Members will likely know that in July the ALAA conference will be jointly hosted by Sydney Law School and UTS Law. Whether we have a meeting, and the type of meeting, in July will be determined by discussion at CALD and the next item, bearing in mind also the decisions and recommendations in relation to the Making CALD Effective discussion.
(4) SUBSTANTIVE TOPICS FOR DISCUSSION AT 2020 CALD MEETINGS [for discussion/decision/approval] As CALD members will recall from the March meeting, there is an appetite for CALD to spend more time in substantive discussions in matters such as legal education and research, and the role of deans. The executive has discussed potential topics that might be of interest to CALD in the 2020 meetings. Below are suggestions for the July and October meetings, but the order to be agreed by CALD, and separately a consideration of the July Meeting.
(a) Topics to be considered at March and October meetings (i) Wellness and the dean’s leadership role Recognising the pressures, often increasing pressures, that Deans can be under – possibly especially when they may not be independent faculties or law schools – and the lack of preparation most deans receive for the role, how can CALD help? For many deans the informal interaction at CALD is important in providing that support. The Executive thought this could be a good topic for a CALD discussion and to develop ways of providing support on an ongoing basis. The following is a suggestion as to how we might conduct this session: Prior to the meeting conduct an informal survey of deans to identify issues that may cause particular stress or pressure. Tania Sourdin is currently co‐supervising a doctoral student, Carly Schrever, who is a lawyer and clinical psychologist, and who has been working with the Victorian Judicial College. She could do a presentation (30 mins) on her research into judicial stress, and then facilitate a discussion (30 plus minutes) on wellness, and wellness approaches, in leadership.
(ii) Research Engagement and Impact As law schools are considering how to prepare for future EIA exercises, it may be helpful to have a CALD discussion which could include: Information, subject to the limits of ARC confidentiality, from Professor Anita Stuhmcke, UTS Law, who sat on the E&I panel, about the exercise and what to consider. Experience of LADRN members in undertaking the exercise and whether there are challenges for Law. Possibly share case studies. Can CALD assist?
For CALD discussion / decision / approval:
4(a)(1) Do members agree that these topics should be planned for the 2020 meetings? 4(a)(2) If so, is there a preference for which topic is addressed at which meeting, or are members content to leave this with the Executive to determine, based on practical matters such as availability etc?
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(b) July Meeting
At the time of writing, I am working on the assumption that CALD has agreed to the recommendation that the usual number of meetings will be two with a decision made at the October meeting as to whether a third (or July) meeting will be held.
This was discussed by the Executive, and there was support for two meetings a year. However, we discussed some ideas with regard to supporting members to still be part of a collaborative network. We hope that we will also be better able to use our website, discussion boards etc to enable this in the near future, but there is also value in being physically present. Some ideas we discussed, that members may want to consider for 2020 as a trial:
Support an informal gathering of CALD members (that could be at the same time as ALAA, or at a time or location that may prove more convenient) that could be aimed at professional development and support, and sharing practice. Practical topics might be such as recruiting and managing staff, performance reviews, research development, workload policies etc. As noted, the ALAA meeting will be in Sydney in 2020, and members might like to meet there if this option is of interest.
Encourage each state/territory to hold a state/territory‐based meeting as the third meeting of the year. These could be badged as CALD meetings. They would provide an opportunity for networking and support and to discuss local issues. There might also be suggestions from CALD as to some topics for discussion, with outcomes shared where likely to be useful to other states. Some states/territories might like to combine to meet, if they have very small numbers of law schools.
Encourage, wherever an ALAA conference is held, a CALD state/territory‐based meeting to be held relevant to that state or territory.
For CALD discussion / decision / approval:
4(b)(1) Are members interested in these suggestions for a different type of ‘third meeting’? 4(b)(2) Is there interest in doing something in 2020? If so, what? 4(b)(3) If yes, when/where?
Lesley Hitchens 15 September 2019
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BACKGROUND
At the March 2019 meeting, CALD held an extensive discussion based on a discussion paper, Making CALD Effective (attached to this document as Annexure A). Feedback from the groups suggested support for many of the matters raised.
The Executive has reviewed the feedback (group feedback attached to this document as Annexure B).
The document below:
sets out the specific questions put to the CALD members as part of the discussion paper;
summarises the overall responses; and,
makes recommendations to CALD members for approval at the October meeting, with a view to immediate implementation, or implementation as soon as possible, depending upon what processes need to be undertaken. For example, some changes may need constitutional amendment, which can be brought to the March meeting.
Lesley Hitchens 15 September 2019
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Note: This is a summary of the group discussion recommendations. It may not represent individual views but it has tried to bring together the group recommendations to provide an overall view. The original discussion paper has been included at Annexure A, and the group feedback at Annexure B.
Part A: Frequency and location of, and attendance at, meetings
1. Would you prefer a model whereby CALD determined the number and nature of meetings it held each year, based on an agreed work plan developed in the prior year?
Summary of responses from CALD meeting Whilst a diversion of views, there was agreement that meetings should have substantive and strategic focus. As to number of meetings: two groups supported three pa; one group saying this was important, another suggesting this was the right balance but the meetings had to have a clear purpose/focus. one group suggested two meetings unless there was a special reason for a third. This group also suggested a workplan may be difficult because it created inflexibility. another group suggested two meetings plus a state meeting. standard should be two meetings, with flexibility each year to decide on appropriate number of meetings for that year. Forward planning and flexibility was important. CALD Executive recommends:
Recommendation 1: That as a general principle the CALD executive will plan for two meetings per year, with an option for a third meeting, if there are matters of substance that CALD wishes to discuss, or for some other purpose considered relevant to CALD and its members, such as professional development.
Recommendation 2: That the final CALD meeting each year will consider the recommendation of the executive as to number of meetings for the following year and proposed focus for those meeting.
2. Should we remove from the Constitution the alignment with ALAA (formerly ALTA), given that a July meeting results in the highest number of apologies? It is worth noting that ALAA is a vibrant independent organisation that is not reliant on CALD for conference attendance.
Summary of responses from CALD meeting There was overall support for removal of the ALAA connection in relation to alignment of meetings. [Note, the ALAA executive wrote to CALD to express its view of the importance of the meeting alignment. See Annexure C] CALD Executive recommends:
Recommendation 3: That the Constitution be amended to remove the requirement that one meeting is normally held each year in conjunction with the Annual Conference of ALAA.
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3. Mindful of the distances some CALD members would have to travel, should we nevertheless determine that (physical) meetings be normally held in an East coast capital city, with perhaps a meeting in SA (or WA) once every two years?
Summary of responses from CALD meeting There were a range of views here. There was support for a once every two years (or 1 in 4) meeting being held on West Coast (or specifically WA, NT, SA, Tasmania). One group did not agree with the suggestion. One group thought that if there were only two meetings per year location would not be such an issue. Another group suggested diverse and inclusive locations. CALD executive recommends:
Recommendation 4: That at least one meeting of the Council will be held be held in WA, NT, or SA every two years, provided that a law school is able to offer to host.
4. Do you have a view on the impact of deputies attending meetings, and whether we should continue the practice? Summary of responses from CALD meeting
There was a range of views here. Generally, a recognition that this can cause difficulties because of lack of knowledge of matters that have been discussed over time; but also a recognition that smaller law schools may need to send deputies. Concluded suggestions from the groups were:
no deputies deputies but only in exceptional circumstances, and with permission of the Chair; using technology for some to ‘dial in’ to all or part of the meeting on an exceptional basis‐ plan venues to accommodate this. deputies can attend as observers only (but allowed to eat!) revisit the matter in two years’ time. CALD Executive recommends:
Recommendation 5: That the expectation is that members of the Council will attend meetings in person. In the circumstances where a member is not able to attend, a member may nominate a deputy to attend the meeting as an observer. An observer may be counted for the purposes of a quorum, contribute to the Council’s discussion, but not vote.
5. Do you have any other practical suggestions for ensuring the effectiveness of meetings? For example, would a meeting that commenced post lunch on day 1, dinner on day, and finish at lunchtime on day 2 be more effective? Other ideas?
Summary of responses from CALD meeting Mixed views on the format of meetings. One group didn’t address; two groups suggested leave format as is; one supported the suggestion as noted in the discussion question; and another suggested longer meetings could work and allow for professional development. CALD Executive recommends: Recommendation 6: Given lack of clear view, we suggest we leave format as is but again consider flexibility of format when planning topics for meetings. With more effective meetings, we should be better able to use the day format.
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6. Other suggestions for more effectiveness
Summary of responses from CALD meeting better papers and preparation and papers need to include issues for decision [This is already being implemented.] appoint someone to critique the meeting at the end (as per board practice) [This could be commenced in 2020.] it might be good to appoint someone else from executive (e.g. deputy Chair of CALD) to chair the meetings so that the Chair of CALD can focus on the issues at hand. [This is a good suggestion. We can include constitution amendment.] Prior to the meeting circulate a one‐page document highlighting matters to be cited [Will try to do this] have a clear finishing time for meeting. [Noted]
CALD Executive recommends
Recommendation 7: These are good suggestions for us to consider; see responses above.
Part B: Substantive business at CALD
7. Do you support refocusing CALD meetings in this manner?
Summary of responses from CALD meeting There was strong support for the ideas suggested in the discussion question regarding a refocusing of the agenda: assume papers are read; keep correspondence and reports in papers, but for noting only; focus on substantive business where decisions are made or where information needs to be shared; ‘hot’ topics third party speakers position papers on key strategic issues focus on policy matters that directly affect law schools before broader policy questions data is very important [see final section in this document, ‘Other matters worth noting from the group reports’] survey members in the lead up to the first meeting of each year. CALD Executive recommends:
Recommendation 8: These are good suggestions and give the Executive a clear focus for better planning of the agenda and conduct of meetings.
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8. Are there topics that you would like to see on the agenda for a focused discussion?
Summary of responses from CALD meeting Suggestions were: changing nature of academic roles relationship between law schools and their institutions legal education and a changing legal profession; technology. outward focus on the benefits of law and inward focus on the benefits to the university international dimension – what is happening in law schools in the US, UK etc; international benchmarking; student well‐being Indigenous strategies international engagement and international student recruitment CALD Executive recommends: Recommendation 9: As the meeting papers will show, substantive topic discussions have been planned for 2020 meetings, and suggestions above will support future meeting planning.
9. Do you see CALD having a role in professional development/supporting new deans? Mindful of the many professional development opportunities available for senior leaders, what role could CALD play specifically and how would we structure that into CALD meetings/other activities?
Summary of responses from CALD meeting There was general support for this and suggestions included: set up a six‐month mentoring scheme for a new Dean by a more experienced Dean; bring new deans together; before the dinner would be a good opportunity; meet with executive. training in induction, using headhunters etc CALD Executive recommends: Recommendation 10: That: (a) new deans and acting deans be invited to a pre‐dinner drink/gathering before CALD dinner. (b) Executive will consider model for a mentoring program if supported by CALD members. (c) survey members for information about what other topics would be useful for professional development.
10. What outreach role should CALD play in assisting law schools such as University of South Pacific and other near neighbours?
Summary of responses from CALD meeting Not all groups responded but there seemed to be general support for inviting our neighbours to meetings; and suggestion that we could find out what neighbouring law schools needs might be and consider on a case‐ by‐case basis. CALD Executive recommends: Recommendation 11: That we continue with the practice of inviting the regional law schools (perhaps in NZ, just the equivalent of our body) to CALD meetings as has been the practice.
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11. Would you support this change [as per the discussion paper question] to the structure of the standing committees?
Summary of responses from CALD meeting There was general support for this suggestion (save for one group preferring the current position with an identifiable pool of members). One group didn’t address this. CALD Executive recommends: Recommendation 12: That the Constitution be amended so that: (a) current reference to ‘Chairs of Standing Committees’ be changed to Vice‐Chairs (named portfolio). (b) provisions for standing committees be removed. (c) provision for the Council to establish working parties to support the Vice‐Chairs or for other relevant business, as needed.
12. Do you have any other suggestions for the effective working of the standing committees?
Summary of responses from CALD meeting Suggestions included: miss three meetings and you’re off give them effective things to do refresh membership each year need members who actually contribute reports in writing and in advance, and taken as read. ad hoc committees can be useful for targeted small projects, with a focus on concrete outcomes (rather than standing committees) standing committees can have a standing chair who brings in different people to work on particular issues. suggestions for other committees: Indigenous cultural competence SC; Disruption Online learning SC. CALD Executive recommends: Recommendation 13: That the above points are noted.
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13. Would you support a set of guidelines which provide greater authority for the executive to act? If so, how should the Executive account to CALD – through, for example, reporting back at meetings; recording information on the CALD website?
Summary of responses from CALD meeting There was clear support for the Executive having greater authority on operational matters with only very important decisions, such as those with significant financial or strategic implications coming to the CALD meeting. But there is a need for greater clarity as to the authority of the executive, either in Constitution or guidelines.
14. Do you have suggestions for the areas or manner in which the CALD Executive should be given greater authority?
Summary of responses from CALD meeting (A) Suggestions for greater authority: authorise executive spend up to $25K [another suggestion $15K] Executive can comment publicly on legal education but not other issues; should not engage in mission creep to discuss policy/political matters undertake employment of short term contracts for projects, ie 3 months or less up to $100K for secretariat. (B) Suggestions for accountability: setting annual budget; accountable for spending [we have also discussed audit of accounts which seems not to have happened] normal corporate governance and meeting order eg starred/unstarred items where executive decides, draft responses to CALD members for information, not approval executive meetings to be minuted and included in the papers; electronically available also. CALD Executive recommends:
Recommendation 14: That a review of the Constitution be undertaken to ensure the Constitution better reflects the authority and accountability CALD has discussed and recommended, and to incorporate other consequential changes arising out of the ‘Making CALD Effective’ discussion. Constitutional amendments to be presented to March 2020 meeting. Recommendation 15: That pending the amendment of the Constitution, CALD agrees that: (a) The affairs of CALD shall be managed by the Executive. Subject to decisions made by a meeting of the Council, the Executive may take any action on behalf of CALD which, in the opinion of the Executive, will further the objects of the Council [adapted from ALAA constitution]; (b) The Executive shall have authority to commit expenditure up to $50,000 per project for activities consistent with the objects of the Council. (c) The Executive shall have authority to enter into contracts for short term project, 3 months or less. (d) The financial statements shall be audited annually. [Annual budget will be presented at December meeting]. (e) Meetings of the Executive meetings to be minuted and included in the meeting papers for the Council
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(1) Chair needs to broadly overview workflow via LADRN, LEAD, committees etc. (2) The importance of the social and professional interaction of CALD meetings. (3) Data is very helpful‐ annual collection of relevant data would be helpful‐ graduate numbers, indigenous student data, ARC success, number of academics, staff/ student ratios, promotion of and numbers of female academics etc. (4) We should produce a ‘state of the legal academy’ report every year. (5) We need to connect discussions and information between CALD, LADRN and LEAD, as well as external legal profession organisations/ bodies with which we need to engage and advocate. (6) We need to be an effective peak body player in the current Australian legal ecosystem.
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ANNEXURE A CALD DISCUSSION PAPER 15 MARCH 2019 MAKING CALD EFFECTIVE
BACKGROUND In July 2013, CALD reviewed the ‘future role of CALD’. It looked at options for the future operation of CALD: 1. To continue in its current capacity where CALD meets to exchange information, discuss trends, and respond as a group to matters referred to CALD, with project work being undertaken as required. 2. To develop as a highly active lobbying body representing legal education and interests in all contexts. 3. A ‘compromise model’ combining option 1, but bringing in option 2 in specific areas (although the areas were not defined).
CALD adopted option one, and this has continued to be the operating model for CALD since then.
In March 2015, CALD again reviewed it operation and focus, although with the intention to continue to work within the ‘option one’ operating model. For information, that paper is attached, and a section of the minutes of that meeting with the outcomes of that discussion.
It is timely to renew the discussion about how we operate to ensure that we are able to have effective meetings that will benefit our commitment to legal education and research, support law schools, recognise that we comprise a diverse group of law schools, and, make the best use of resources, given especially the time demands on deans.
FREQUENCY and LOCATION of, and ATTENDANCE at, MEETINGS
The March 2015 discussion agreed that CALD would plan for two meetings per year, with the option of a third if considered necessary. This was tied with the proposal to do a work plan for the following CALD year. In 2016 CALD met twice. This was part of the new practice. (In 2016 ALTA met in New Zealand, so an alternative location would have probably been found.) 2017 and 2018 reverted (possibly without recollection of the recent review and practice) to three meetings per annum.
Many deans (especially the more isolated) value the opportunity to come together to share experience and ideas. We regularly have new deans, and other deans face the challenge of being a small school within a much larger HASS or business school faculty or college. However, there may be other ways of providing support than via three meetings each year. We could be making better use of technology, for example, for a meeting on specific matters, or to enable mentoring.
Currently the CALD constitution (cl 6.1) provides:
Meetings of the Council will be convened at such times and places as are agreed by the members. One meeting each year will, unless otherwise agreed, be held in conjunction with the annual conference of the Australasian Law Teachers Association.
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As members will be aware, we rely on the generosity of law schools to host CALD meetings. Many universities face space challenges, and so it is not easy for others to offer to host. The opportunity to visit other campuses and law schools is good, but it may be less ideal if that adds to the time a CALD meeting requires for a member, especially if the meeting is not held in a capital city. At present, locations for meetings are serendipitous, except where a meeting ties in with ALTA as per clause 6.1, and without reference to the resource implications. Thus:
• in 2016, meetings were held in Sydney and Perth • in 2017, Adelaide (twice) and Bryon Bay • in 2018, Newcastle, Perth, and Darwin • in 2019, meetings are planned for Melbourne, Gold Coast, and Perth.
Whilst the distribution of CALD members is as follows:
• ‘East Coast’ – 30 members (ACT, NSW, QLD, Tas., Vic.) • ‘West Coast’ – 9 members (NT., SA., WA.)
Looking roughly at numbers of apologies for meetings, there is not necessarily a high correlation between location and attendance, although it is notable that there is a high number of apologies for July meetings. Despite the link with ALTA, this may indicate that July is not an ideal time for meeting. Number of apologies:
• 2014: 12, 18, 9 • 2015: 8, 18, 13 • 2016: 10, 7 (no July meeting) • 2017: 12, 20, 19 • 2018: 13, 21, 11.
Clause 6.3 permits a member to attend a CALD meeting on the member’s behalf. With the number of members not attending meetings growing, it may be that a larger number of deputies may limit the value of a meeting, especially in reaching decisions.
For discussion:
• Would you prefer a model whereby CALD determined the number and nature of meetings it held each year, based on an agreed work plan developed in the prior year? • Should we remove from the Constitution the alignment with ALTA, given that a July meeting results in the highest number of apologies? It is worth noting that ALTA is a vibrant independent organisation that is not reliant on CALD for conference attendance. • Mindful of the distances some CALD members would have to travel, should we nevertheless determine that (physical) meetings be normally held in an East coast capital city, with perhaps a meeting in SA (or WA) once every two years? • Do you have a view on the impact of deputies attending meetings, and whether we should continue the practice? • Do you have any other practical suggestions for ensuring the effectiveness of meetings? For example, would a meeting that commenced post lunch on day 1, dinner on day, and finish at lunchtime on day 2 be more effective? Other ideas?
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SUBSTANTIVE BUSINESS AT CALD MEETINGS
If there is support for an agreed workplan to enable forward planning for CALD meetings (which can be linked with a more proactive budget, instead of reactive), then it would be useful to have members’ views on what it considers strategic and productive areas for focus in the next year, and, if possible, the year following.
It is suggested that CALD meetings and the agenda in future should:
• Keep formal business, including mere reporting or noting, to a minimum; • Deal with matters of ongoing business or new business that require a decision. • Devote a third of the meeting or more to one or two topics of current relevance to deans and law schools. These would be prepared in advance, with one or two CALD member speakers, and when appropriate, an external speaker. Discussion could be aimed at understanding what is happening in a particular area, used as the basis for determining whether CALD needs to take action in some way, and/or establishing a project that might assist CALD members going forward.
The attached 2015 discussion paper provides some good background to the type of areas that might be the focus for CALD. Areas of focus that may be useful for future CALD meetings could be:
• Law and technology – understanding what is happening; to what extent should this be a matter for a collective CALD view; what is or should be its relationship to admission and accreditation? This might include a discussion of the horizon that should be applied to such discussion: how far forward should we look? • Research and Engagement – when the results of EIA are published; a discussion about what EIA means in the context of the law discipline; good examples of case studies; how can we prepare for future exercises?
For discussion:
• Do you support refocusing CALD meetings in this manner? • Are there topics that you would like to see on the agenda for a focused discussion. • Do you see CALD having a role in professional development/supporting new deans? Mindful of the many professional development opportunities available for senior leaders, what role could CALD play specifically and how would we structure that into CALD meetings/other activities? • What outreach role should CALD play in assisting law schools such as University of South Pacific and other near neighbours?
CALD STANDING COMMITTEES
Currently, we have four Standing Committees, as per the Constitution (Clause 7A):
• Standards, Accreditation, & Legal Profession • Legal Research • Legal Education • International Matters
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There were five but these were reviewed and two committees, effectively merged, in 2016. The chairs of the Standing Committees form the Executive along with the CALD Chair and Deputy Chair and Treasurer. This seems to work well.
Each standing committee has a committee membership. However, the experience of some current and past Standing Committee chairs is that there is often very little engagement by the committee members. Of course, practice may vary between committees.
A more effective way of working might be to continue with standing committees and chairs of those standing committee but to end the practice of committee membership on a standing basis, and instead for the chair of the portfolio to be able, on an ad hoc basis, to call for a few volunteers or establish a working group for a particular project.
For discussion:
3. Would you support this change to the structure of the standing committees? 4. Do you have any other suggestions for the effective working of the standing committees?
THE EXECUTIVE
The CALD Constitution is relatively silent on the role of the Executive and its authority, save for Clause 10 which addresses the authority of the Chair to act/speak on behalf of CALD. Nor do there seem to be guidelines on the Executive and/or the Treasurer’s authority to determine an allocation of funding, for example in relation to the current journal quality list project. The minutes of a discussion of the role of CALD in 2015 determined:
While it was agreed that the more substantive matters which arise should be dealt with by CALD as a group; for less substantive matters, it was suggested that the CALD Executive be granted more leadership responsibility and authority to communicate and make decisions on behalf of CALD if/when appropriate.
It is not clear what follow-up there has been on this. However, it may be useful to have a set of guidelines that address these issues.
For discussion:
3. Would you support a set of guidelines which provide greater authority for the executive to act? If so, how should the Executive account to CALD – through, for example, reporting back at meetings; recording information on the CALD website? 4. Do you have suggestions for the areas or manner in which the CALD Executive should be given greater authority?
Xxxxxxxxxx
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ANNEXURE B
Group Responses to Discussion
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ANNEXURE C
Email from ALAA executive
14
CALD Meeting Paper Page 52 CALD Meeting - 4 Oct 2019 Sunday, September 1, 2019 at 5:42:13 PM Australian Eastern StandardItem Time B01(2)
Subject: Correspondence from ALAA Execu ve Date: Tuesday, 28 May 2019 at 3:25:10 pm Australian Eastern Standard Time From: Natalie Skead To: Lesley Hitchens A achments: image001.jpg, image002.gif, image003.gif
Dear Lesley,
As foreshadowed last week, below please find correspondence from the ALAA Execu ve.
Kind regards, Natalie
Dear CALD Execu ve, I am wri ng in my capacity as Deputy Chair of the Australasian Law Academics Associa on (ALAA) concerning the alignment of CALD mee ngs with the annual ALAA Conference. The ALAA Execu ve was disappointed to learn of the CALD Execu ve’s recent decision to cancel the CALD mee ng scheduled to align with the annual ALAA Conference in July 2019. Aside from ques ons over the cons tu onal requirement to hold such a mee ng, this decision ignores the strong historical associa on between the two organisa ons. Of greater concern, while perhaps not intended, the ALAA Execu ve believes that the decision could be perceived as signifying a lack of decanal support for the organisa on represen ng law academics across Australasia. The Australian Universi es Law Schools Associa on (AULSA) was established in 1946. It became the Australasian Law Teachers Associa on (ALTA) in 1988 and ALAA in 2018. The establishment of AULSA recognised the need for ‘Universi es to pull together and assist each other as much as possible’ and it objects included ‘(c) the promo on of ac ve co-opera on of the University law schools of Australia with one another, with law schools elsewhere and with University, professional, and other learned bodies in Australia and elsewhere’. (David Barker, A History of Australian Legal Educa on (Federa on Press 2017), at 142). It was AULSA that in 1978 proposed the establishment of a Commi ee of Deans for Australian Law Deans (CDALD), now CALD. Although si ng outside AULSA, CDALD was required to liaise with and report annually to AULSA (Barker, at 143). While the size, shape and composi on of each organisa on may have changed over the years, this brief history of ALAA and CALD demonstrates the close historical associa on between the two. The importance of this associa on is reflected in 6.1 of CALD’s current Cons tu on which states: 6. General Mee ngs 6.1 Mee ngs of the Council will be convened at such mes and places as are agreed by the members. One mee ng each year will, unless otherwise agreed, be held in conjunc on with the annual conference of the Australasian Law Teachers Associa on. Although we acknowledge that not all law deans a end the annual ALAA Conference, the geographical and temporal proximity of a CALD mee ng to the Conference has always provided a strong message of support from the academy leadership to the academy. The uncoupling of the CALD mee ngs from the ALAA Conference compromises that message. Indeed, given that of its three mee ngs scheduled for 2019 CALD has elected to cancel the one mee ng cons tu onally aligned with the ALAA Conference, some may construe this decision as a withdrawal of support for ALAA and its annual Conference. CALD has li le, if any, formal structured engagement with the academy, with the result that its ac vi es and resolu ons are largely hidden from many law academics. Holding one of the annual CALD mee ngs alongside the ALAA Conference demonstrates a commitment to those who law deans have been appointed and entrusted to serve – law academics. It is a sign of effec ve and commi ed leadership for deans, and other senior members of the academy, to par cipate ac vely in the ALAA Conference. The
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Conference provides a meaningful form of mentoring, recogni on, and ongoing support to the academy, including, in par cular early career and sessional law academics, as well as those working outside the major metropolitan East Coast ci es. Many of these academics rely on the ALAA Conference as a forum to establish an academic network and a pla orm to kick start their careers. This was certainly my experience as a junior academic in Western Australia, and that of several other ALAA Execu ve members. There have over the years been several academics (including past law deans) who have greatly influenced the work and careers of members of the academy through their involvement with ALAA and a endance at and par cipa on in its annual Conference. David Barker, Pamela O’Connor and the late Michael Coper come to mind. While we appreciate that this may not be possible in 2019, without causing significant inconvenience to the ALAA Conference host, the ALAA Execu ve requests CALD to con nue this strong tradi on of academic leadership by reviewing its decision not to hold one of its annual mee ng in conjunc on with the ALAA Conference. Kind regards, Natalie Deputy Chair, Australasian Law Academics Associa on
Professor Natalie Skead FAAL PFHEA Dean and Head of School UWA Law School • M253, Perth WA 6009 Australia T +61 8 6488 2962 • E [email protected]
View my research on my SSRN Author page: https://ssrn.com/author=1905727
The University of Western Australia is situated on the lands of the Whadjuk Noongar peoples. We pay our respects to their Elders past, present and future.
Page 2 of 2 CALD Meeting Paper Page 54 CALD Meeting - 4 Oct 2019 Item B02 CALD Treasurer’s Report
Report for the CALD meeting at Edith Cowan University, 4 October 2019 Associate Professor Alison Gerard, CALD Treasurer 17 September 2019
(1) SUMMARY (a) $349,660.75 balance which includes $202,483.26 in a term deposit expiring mid‐November and expected to earn an additional $848.77. (b) I have followed up with NAB to have previous names removed from the NAB accounts.
(c) MYOB software has been purchased and deployed so enjoy the flash new Balance and Profit & Loss reports (pages 4 and 5) at the end of this report.
(d) The 2019 Budget vs Actual (as at 17/9/2019) is at page 2. We have anticipated expenses to come but nevertheless we have a tidy profit expected.
(e) Budget for 2020 (at page 3): I’ve included an audit/review, which we haven’t conducted previously and are not legally obliged to do, unlike unincorporated associations registered with the Australian Charities and Not‐for‐profits Commission that have an annual revenue of over $250,000. A ball park estimate would be audit $2,000 and review $1,000.
(f) Projects: We have considerable funds available to support projects. Annually we would have about $30,000 to invest in projects. We also have accumulated several years of surplus that we could allocate. For example, if we kept a bank of $100,000 in a term deposit, we would have $150,000 to invest (as a conservative estimate). This would leave $100,000 in operational funding.
(g) Benchmarking Fees: A query was raised about the CALD fee. By way of comparison, the ABDC charge $11,000 per year for membership and meet three times per year according to their Executive Officer. A quick look at their website ((https://abdc.edu.au/about‐us/our‐members/) shows they have two staff ‐ an Executive Officer and a Communications Officer – and 39 business faculties/schools as members.
Thanks and, as always, feedback welcome.
Associate Professor Alison Gerard (with Kristy Larsen, Administrative Officer)
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(2) 2019 BUDGET VS ACTUAL I prepared a draft budget for the March CALD meeting and the actuals are contrasted below. The Budget was unclear on secretariat costs and didn’t include the journal rankings budget of $50,000 decided at the March meeting. Moving forward, the 2020 budget is looking a bit more predictable. Council of Australian Law Deans 2019 Actual 2019 Budget as at 13 Sep 2019 Income and Projected Income Subscription 166,440.00 166,440.00 Interest 3,000.00 3,579.76 Total Income $169,440.00 $170,019.76
Expenses and Projected Expenses Meeting Expense (inc Catering) 15,000.00 7,856.41 Secretariat Wages ? 80,640.43 Secretariat Travel ? Secretariat Expenses (phone/internet) 1,259.00 1,259.96 Bookkeeping Expenses 400.00 250.00 Australian Journal Rankings report ? 1,600.00 Project Officer ALSCC ALSCC Costs (Hon M Black AC QC) 1,000.00 1,617.48 Miscellaneous (gifts) 275.94 Website 10,000.00 467.50 LEAD 11,000.00 11,000.00 LADRN research awards LADRN 11,000.00 6,704.31 LACC Expenses 1,500.00 MYOB 405.00 172.41 Strategic Projects ‐ Total Expenses $51,564.00 $111,844.44
Total Income $169,440.00 $170,019.80 Total Expenses $51,564.00 $111,844.40 Net Profit / (Loss) $117,876.00 $58,175.37
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(3) CALD BUDGET 2020 There are several assumptions in the attached re: the journal rankings project and three meetings. But the figures show we can comfortably entertain funding specific initiatives.
Income Annual CALD Subscription Income 164,740 Interest Income 4,000 Total Income $168,740
Expenditure Fixed Costs Meeting Costs (incl catering) x 3 per year 18,000 Secretariat Costs 75,564 Secretariat Travel 3,000 Secretariat Phone/Internet 1,680 MYOB Fees 432 Bookkeeping fees 400 LADRN Funding 11,000 LADRN Research Awards 15,000 Lead Funding 11,000 ALSCC Costs 2,000 Website 500 LACC Expenses 1,500 Total Fixed Costs $140,076
Flexible Costs Audit/Review Costs 2,000 Project ‐ Australian Law Standards Committee 5,000 Project ‐ Journal Rankings Report 50,000 Total Flexible Costs $57,000
Total Income $168,740 Total Expenditure $197,076 Net Profit / (Loss) ($28,336)
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\Drafts & Word versions\B02 ‐ Treasurer's Report.docx Page 3 CALD Meeting Paper Page 57 CALD Meeting - 4 Oct 2019 AccrualItem mode B02 01 Jan 2019 - 17 Sep 2019 Profit and loss ABN: 47158001973 Generated 17 Sep 2019 The Council Of Australian Law Deans c/- Charles Sturt University Centre for Law and Justice Att: Kristy Larsen Panorama Avenue, BATHURST NSW 2795, Australia
Total
Income
4-1100 CALD Subscription Income 166,440.00 4-1300 Interest Income 3,579.76
Total Income 170,019.76
Less Cost of Sales
Total Cost of Sales 0.00
Gross Profit 170,019.76
Less Expense
6-1000 Accounting fees 250.00 6-1300 MYOB Fees 172.41 6-1500 Meeting Costs 7,856.42 6-2100 LADRN Funding 6,704.31 6-2200 LEAD Funding 11,000.00 6-2300 Project - Quality Journal List 1,600.00 6-2500 Gifts 275.94 6-3000 Internet 629.98 6-3800 Website Expenses 467.50 6-5000 Secretariat Costs 80,640.43 6-5600 Telephone 629.93 6-5700 ALSSC Expenses 1,617.48
Total Expense 111,844.40
Operating Profit 58,175.36
Plus Other Income
Total Other Income 0.00
Less Other Expense
Total Other Expense 0.00
Net Profit 58,175.36
Page 4 CALD Meeting Paper Page 58 The Council Of Australian Law Deans | Generated 17 Sep 2019 CALD Meeting - 4 Oct 2019 AccrualItem mode B02 17 Sep 2019 Balance Sheet ABN: 47158001973 Generated 17 Sep 2019 The Council Of Australian Law Deans c/- Charles Sturt University Centre for Law and Justice Att: Kristy Larsen Panorama Avenue, BATHURST NSW 2795, Australia
Total
Asset
Banking
1-1000 Cheque account 147,177.49 1-1400 Term Deposit 202,483.26
Total Banking 349,660.75
Current Assets
Total Current Assets 0.00
Fixed Assets
Total Fixed Assets 0.00
Total Asset 349,660.75
Liability
Credit Card
Total Credit Card 0.00
Current Liabilities
Total Current Liabilities 0.00
Long Term Liabilities
Total Long Term Liabilities 0.00
Total Liability 0.00
Net Assets 349,660.75
Equity
Current Earnings
3-1800 Current year earnings 58,175.36
Total Current Earnings 58,175.36
Retained Earnings
Total Retained Earnings 0.00
3-9999 Historical balancing 291,485.39
Total Equity 349,660.75
CALD Meeting Paper PagePage 59 5 The Council Of Australian Law Deans | Generated 17 Sep 2019 CALD Meeting - 4 Oct 2019 Item B03 CALD STANDING COMMITTEE ON Legal Research
Report for the CALD meeting at Edith Cowan University, 4 October 2019 Professor Stephen Colbran, Standing Committee Chair
1. JOURNAL USE OF ORCID AND DOI LADRN has forwarded a request from the University of Adelaide Research Office inquiring as to progress on encouraging Australian Law Journals to include ORCiD and DOI numbers on all journal outputs. This is useful to facilitate the automatic and correct attribution of outputs to researchers and institutions. It is clear from the information provided by Fiona MacDowall that very few Australian Law journals use ORCiD and DOI numbers or are listed in bibliographic databases.
A resolution is sought to write to all Australian Law Journals that currently do not use ORCiD and DOI numbers or are not included in bibliographic databases requesting that they amend their practice to do so in the future.
2. CALD RESEARCH MENTORING PROGRAM A working party of LADRN consisting of Heather Douglas (UQ) and Julia Quilter (Wollongong) produced a document entitled “LAWS ADR Network (LADRN) National research mentoring Scheme (NRMS)”. The purpose of the NRMS was to provide mentoring support for academics employed in Australia Law Schools that are members of CALD.
This was endorsed at the Darwin CALD meeting held on 5 October 2018 subject to amendment taking into account the workload implications requiring local negotiation with Deans. The revised document came back to the Melbourne CALD meeting held on 15 March 2019 for signoff. At that meeting it was agreed that the wording should be: “Where academics do make a contribution to the NRMS, it is hoped that Deans will recognise this as an exceptional contribution to the discipline”, Deans are encouraged to consider this as an element of contribution to service and, where appropriate, to consider workload implications. 12‐month review of NRMS could include assessment of burden on mentors. LADRN offered to implement the mentoring scheme. Associate Professor Richards advised that LADRN was working on a list of potential mentors and the mentoring scheme, i.e. how to appoint and look after mentors, with information to be pulled together for report back to CALD. Administrative issues were to be discussed with CALD if funding/support was required. The expressions of interest call out was intended to be in the second half of 2019 for implementation in 2020.
On 6 June 2019 Heather Douglas provided three proposed mentoring program forms with the view that they be completed and submitted online through the CALD website. The forms consisted of an Agreement form, Mentee form and Mentor form. The main problem was that no online system was proposed only streams of emails attaching the forms.
Clarification was sought by Stephen Colbran on several issues, including: Who had access to data and for what purpose? What reporting framework was needed around the initiative? How was it proposed to evaluate the success or otherwise of the initiative? These questions were addressed. The only outstanding issue is the creation and implementation of an online system attached to a redeveloped CALD website. This initiative needs to be included in the redevelopment project for the CALD website. At this stage we have not received any further report from LADRN in terms of funding or further support.
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\Drafts & Word versions\B03 ‐ Legal Research Report.docx Page 1 CALD Meeting Paper Page 60 CALD Meeting - 4 Oct 2019 Item B03 3. AUSTRALIAN LEGAL RESEARCH AWARDS At the Melbourne CALD meeting held on 15 March 2019, a detailed proposal and discussion occurred in relation to the proposed research awards and numerous questions were posed for LADRN. The CALD Chair proposed that LADRN proceed as discussed to develop an implementation framework and advice on the awards process etc. Also agreed was that CALD Executive will assist LADRN in moving this project forward to report to a July CALD meeting.
A LADRN working party consisting of Joe McIntyre (UniSA), Ian Murray (UWA) Mary Keyes (Griffith) and Stephen Colbran (CQU, CALD) wrote a position paper dated June 2019 addressing all the issues arising from the Melbourne CALD meeting. This position paper was presented and approved by the CALD Executive on 28 August 2019. The awards will be known as the ‘Australian Legal Research Awards’. They will cover the following six initial categories and will be presented at the 2020 AALA Conference in Sydney: PhD Prize Article/Chapter (General) prize Article/Chapter (Early Career Researcher) prize Book Prize Non‐Traditional Research Output (NTRO) Prize Lifetime Achievement Legal Research Medal.
The budget has been approved for 5 years amounting to a $14,660 initial setup and $7,170 per annum. The position paper is attached for information (paper B03(c)). Some additional work will be needed in setting up the electronic submission process via the new CALD website.
In terms of the award timeline, Stephen Colbran is working with Joe McIntyre in seeking to engage a graphic designer for brand development. The project is on track for launch of the scheme on 30 November 2019.
4. ANZSRC Kathy Bowrey attended an ANZSRC Review Indigenous Research Workshop on 18 July 2019 in Sydney on behalf of CALD. Report feedback is attached (paper B03(d)). Further feedback was requested by the Australian Research Council by 5 September 2019. LADRN was consulted as to whether they had any additional feedback beyond their initial submission, which ultimately became the CALD submission. On 21 August 2019, LADRN advised that no further feedback was warranted. We are now awaiting the final outcome of the ANZSRC process.
5. CALD QUALITY LAW JOURNAL PILOT PROJECT Despite our best endeavours no one responded to our request for proposals. Given this outcome Stephen Colbran undertook to complete the pilot project on behalf of CALD. This was accepted by the CALD Executive on 28 August 2019 as a viable way forward complying as closely as possible to the RFP document.
The project has completed the following milestones.
1. The 821 Australian Peer Reviewers have been identified who meet the criteria for eligibility. The list has been circulated to LADRN on 10 September 2019 for any final amendments to be notified by 20 September 2019. The same list has been distributed to Deans. The list will then close and be used for survey distribution.
2. The SurveyMonkey automated survey has been created. It will be automatically sent and tracked to the Australian Peer Reviewers. Respondents will be able to choose FoR descriptors and associated journals for which they have knowledge to rate. The survey can be completed by respondents over multiple sessions and can be amended before submission.
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\Drafts & Word versions\B03 ‐ Legal Research Report.docx Page 2 CALD Meeting Paper Page 61 CALD Meeting - 4 Oct 2019 Item B03 3. All 156 Australian Law Journals have been classified according to revised FoR codes and Descriptors taking into account the LADRN/CALD ANZSRC submissions. These codes and descriptors are currently being checked by LADRN and will be finalised by 20 September 2019. The classifications will then close. The survey instrument will then be altered for any classification amendments.
4. It is anticipated that the survey will be implemented before the CALD ECU meeting and is to conclude by 30 November 2019.
5. The CALD Research Committee and LADRN are currently working on finalising the International Peer Review Committee structure and composition. Numerous use case scenarios have been provided to LADRN to consider and report back from their 3 October 2019 meeting. These use cases consider issues such as how to handle bias and non‐responses to journal ratings. This process will be finalised before the data analysis phase of the pilot project commences at the end of November.
6. The App for distribution of the results of the pilot has been built and previously demonstrated at Melbourne CALD meeting held on 15 March 2019. The quality classifications can be easily entered into the database and the App transferred to CALD for ongoing management.
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Australian Legal Research Awards
LADRN POSITION PAPER JUNE 2019
EXECUTIVE SUMMARY
This position paper develops the concept of a National Research Prize Scheme for the legal discipline in Australia. An initial proposal for such a scheme, with underlying arguments for and against its adoption and rough outline of its potential structure, was presented by LADRN to CALD in October 2018. The proposal received enthusiastic in-principle support, with suggestions for alteration of the structure and scope of the scheme put forward. Following further refinement at the March 2019 CALD meeting, it was proposed that LADRN – in consultation with CALD – develop a complete overview. This paper sets out this overview.
The principal objective of the award scheme is to encourage, recognise and promote research excellence and innovation in the discipline of law by Australian legal scholars.
In the initial round of the Prize Scheme, it is recommended that the following awards be offered:
• PhD Prize • Article/Chapter (General) Prize • Article/Chapter (ECR) Prize • Book Prize • Non-Traditional Research Output (NTRO) • Lifetime Achievement Legal Research Medal
This proposal sets out a timeline for the scheme, with a launch of the scheme in November 2019, nominations closing in March 2020 and an inaugural award ceremony in July 2020.
The base cost of the scheme would be $14,660 in its first year of operation, with a recurring cost of $7,170 per year in subsequent years. This cost may be greater depending upon choices regarding website and award presentation ceremonies.
It is intended that there be an initial commitment to funding the awards for a five-year period, with an expectation that the awards ceremony will be in the middle of each year to celebrate research and publications from the preceding year.
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Table of Contents
EXECUTIVE SUMMARY ...... 1 1. PURPOSE OF THE AWARDS ...... 3 2. STRUCTURE OF THE AWARD SCHEME ...... 4 A. Categories of Prizes ...... 4 (i) First Phases of Awards ...... 4 (ii) Future Phases of Awards ...... 4 B. Nomenclature ...... 5 (i) Future Benefactors, Sponsorship and Legacy Naming ...... 6 C. Funding and Support ...... 6 3. APPLICATION PROCESS ...... 7 A. Eligibility Requirement ...... 7 (i) General Eligibility Requirements ...... 7 (ii) Specific Eligibility Requirements ...... 7 B. Nomination Process ...... 8 C. Application Form and Justification for Award ...... 9 D. Application Logistics and Administration...... 9 (i) Scheme Website ...... 9 (ii) Application Portal/Software ...... 10 (iii) Administrative Support ...... 10 4. ASSESSMENT PROCESS ...... 11 A. Assessment Panels ...... 11 (i) Assessment Panels Chair ...... 11 (ii) Composition of Primary Assessment Panels ...... 11 (iii) Operation of Panels ...... 12 B. Assessment Criteria ...... 13 5. AWARD PROCESS...... 14 A. Award Prize ...... 14 (i) Design of Prize ...... 14 B. Timing and Location of Awarding Ceremony ...... 15 C. Exposure of Awards ...... 15 6. AWARD TIMELINE ...... 16 7. INITIAL BUDGET ...... 16 APPENDIX A: LIFETIME ACHIEVEMENT AWARD ...... 18 APPENDIX B: MODEL APPLICATION FORM ...... 20 APPENDIX C: MODEL ALRA ASSESSMENT REPORT ...... 22
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1. PURPOSE OF THE AWARDS
For most other academic disciplines, there is an established, and prestigious, national award scheme, commonly run through the relevant learned academy. For a number of reasons, including the relative youth of the Australian Academy of Law as an institution, such a model has not evolved in the legal discipline. This scheme offers an opportunity to remedy this systemic disadvantage facing the discipline, and to contribute to the strengthening of its national identity.
The principal objective of the award scheme is to encourage, recognise and promote research excellence and innovation in the discipline of law by Australian legal scholars.
There are, however, a number of secondary purposes that are advanced by the scheme. These include:
o to enhance and promote the shared identity of law as a distinct academic discipline within the Australian Academy; o to create a national recognition pathway for legal academics to be able to concretely demonstrate the contribution and quality of their work; o to disseminate the diverse high-quality research being undertaken by Australian legal academics; o to provide a visible platform to celebrate legal research that can be effectively projected beyond the legal discipline to the Australian and international Academy.
We recognise that there may be other objectives and different forms of expression, which may be expressed by CALD.
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2. STRUCTURE OF THE AWARD SCHEME
A. Categories of Prizes
There are different ways that the awards scheme could be organised. One would be career stage, in which the applicant might make a case for excellence by reference to publications, research funding, HDR supervision, and research leadership. An alternative would be outputs or achievements, arranged by level.
There are benefits and costs involved in each approach. An expansive range of awards helps to capture and celebrate the performance of Australian legal academics, with ‘portfolio’ awards, recognising the substantive contribution built through multiple publications. However, the broader the range of awards, the greater the workload in operating and assessing the awards.
(i) Initial Awards
Given the conceptual and logistical challenges of establishing the Scheme, we recommend a limited set of awards be offered initially.
Category Description This category will focus on the starting point of the contemporary 1 PhD Prize academic pathway, celebrating excellence in doctoral studies. This general category celebrates that mainstay of academic Article/Chapter 2 research – the traditional research article (including book chapters (General) Prize in edited collections). This specific category recognises the contribution of early career Article/Chapter (ECR) 3 academics in producing a discrete research output – whether Prize journal article or book chapter. This category celebrates the substantial contribution that is made 4 Book Prize by the sustained in-depth analysis provided by a legal book or monograph. Non-Traditional This category is intended to encourage, recognise and reward Research Output research innovation that does not conform to traditional academic 5 (NTRO) outputs, and might include videos, films, artistic works, blogs, and software. This prestigious special category recognises the substantial Lifetime Achievement 6 contribution of outstanding scholars to the discipline of law made Legal Research Medal over the course of at least a 25-year career.
These limited categories should enable the Scheme to be rolled out quickly and effectively, allowing a foundation for future expansion of award categories.
(ii) Future Awards
Subject to the success of the initial awards, and the ability to deal with unforeseen challenges, a subsequent iteration of the Scheme may increase the number of awards offered. Potential future awards include:
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Category Description ECR Portfolio Prize A portfolio prize for early career researchers (0-5yrs) that recognises the broader contribution to law through a series of publications and research projects. MCR Portfolio Prize A portfolio prize for mid-career researchers (10-20yrs) that recognises the broader contribution to law through a series of publications and research projects. ECR Book Prize This category will mirror the general book prize but will be open only to early career researchers. Impact and Engagement This category recognises the growing emphasis on the direct Prize impact of research, and the manner in which it engages with the broader community. Aboriginal and Torres This category recognises outstanding research by Aboriginal Strait Islander Research and Torres Strait Islander early and mid-career researchers. Award Excellence in Supervision This category recognises the special role in advancing legal Prize knowledge through the provision of research supervision of the highest quality. ‘Voice of the Law’ Award This category aims to recognise outstanding contribution to the advancement or public understanding of the law, and the legal issues facing society.
In addition to these general prizes, it may be possible to establish prizes for specific sub- disciplines of law – public law; law of obligations; international and comparative law, etc. This approach would mirror the discrete medals offered by the Academy of Science for a range of distinct disciplines. These prizes may be named after significant contributors in the given field.
The issue of expansion of the awards should be revisited in the future, perhaps on an ongoing basis. A more limited offering is preferable in establishing the awards.
B. Nomenclature
There has been debate as to the appropriate name for the national prize scheme. Names matter as they drive the narrative of identity and recognition that underlies the scheme. For example, while the ‘CALD Prizes’ may be factually accurate, this may not speak to those outside the legal discipline. Moreover, if CALD subsequently looks to merge this scheme, for example with the AAL, it would be preferable that the goodwill underpinning the scheme not be lost.
This is a vital issue of brand creation requiring guidance from CALD. Potential names include:
1. Australian Legal Research Awards 2. Australian Legal Academic Awards 3. Legal Scholarship Australian Awards 4. Australian Legal Research Excellence Awards 5. Legal Research Australia Awards
We currently have a slight preference for the first option, given the precision it offers. This choice may also be influenced by the development of national teaching awards through LEAD, with many advantages to adoption of a related name.
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(i) Future Benefactors, Sponsorship and Legacy Naming
There is potential for specific named awards for separate award categories. For example, it may that each category can be named in honour of a distinguished legal scholar or jurist. This is a matter that will require further discussion with CALD, and may be something that is revisited in later years.
There may be eminent scholars and jurists willing to make a direct financial contribution to the awards scheme to support and encourage research excellence in law. CALD may wish to facilitate such a benefaction/bequeath.
It is also possible that CALD may wish to name the entire prize scheme after an outstanding judge or legal academic, whether on an honorary basis, or following a benefaction. This is, again, an issue which should be left to CALD.
It may also be appropriate to seek sponsorship and support from law firms, legal publishers and other legal entities. Such sponsorship would help defray the cost of the scheme, including the costs of any awards ceremony or event. Once the planning for the scheme moves into the next phase, LADRN is willing to collaborate with CALD to secure such support.
C. Funding and Support
The creation of the awards scheme will involve ongoing costs for CALD. Given that the creation of this scheme will involve a concerted effort to achieve ‘buy-in’ from the legal academy and will rely upon significant in-kind support in the form of assessment by academics, it is our view that the scheme should receive a funding commitment for an initial five year period. In terms of overarching funding principles, we suggest:
• CALD commit to an initial five (5) years of funding for the scheme. As part of this commitment, CALD, in collaboration with LADRN, shall review the scheme in the first and fifth year;
• CALD will provide funding for some direct administrative support to operate the scheme (see below Pt 4(B));
• CALD will, through its members, encourage and support academic staff to participate in the administration of the scheme, including on assessment panels; and
• CALD will facilitate the involvement of other bodies, including the AAL, in the scheme, including in the potential identification/provision of assessors.
This commitment will involve a larger commitment in the initial year, as the relevant systems and infrastructure are designed, and a reduced ongoing amount. An indicative budget is outlined below in Part 7, outlining an approximate figure of $14,660 in the first year of the scheme, with an ongoing figure of $7170.
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3. APPLICATION PROCESS
Several issues need to be addressed with respect to the application process for the national prize scheme, including eligibility, logistics of application and nomination requirements.
A. Eligibility
One of the central issues to resolve at this initial planning stage is the exposition of relevant eligibility requirements. There are strategic choices to be made affecting the type of research that is celebrated and (potentially) undertaken. Balances must be struck between valuing interdisciplinary research, recognising ‘legal’ research, celebrating ‘Australian’ research and encouraging internationally collaborative work.
There will be a range of general eligibility requirements for all awards within the scheme, and a range of specific eligibility requirements for individual awards.
(i) General Eligibility
The general eligibility requirements are derived from the central objectives of the scheme, providing a platform to recognise and celebrate excellent Australian legal research. There are three general requirements:
1) The subject matter of the works must be at least 66% within Field of Research code 18 (Law and Legal Studies) as assessed by the relevant institution in accordance with HERDC guidelines.
2) The publication awards (category 2-5) are open to academic staff at an Australian Law School (being a member of CALD), where that staff member is employed at least 0.4 FTE at the time of the application.
3) For co-authored works, at least 50% of all authors must be eligible in accordance with requirement 2.
(ii) Specific Eligibility
The specific eligibility requirements are set out in the table below. It is intended that each be clearly set out on the application form and Award Rules.
Category Additional Eligibility Requirements • The PhD prize is open to any person awarded a PhD from an Australian Law School. • The PhD must have been awarded in the year preceding the application 1 PhD Prize (e.g. 2018 award for the 2019 application). • A PhD can be nominated only once. • Nominations must include all examiners’ written reports. • The article or chapter must satisfy the HERDC definition of Article/Chapter 2 research (eg, book chapters are eligible if they satisfy the HERDC (General) Prize requirement).
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• The article or chapter must have a publication or release date in the 12 months preceding the application. • Each publication can be nominated only once.
• The article or chapter must satisfy the HERDC requirement of scholarship (eg, book chapters are eligible if they satisfy the HERDC requirement). Article/Chapter 3 • The article or chapter must have a publication or release date in the (ECR) Prize 12 months preceding the application. • Each publication can be nominated only once.
• The book must satisfy the HERDC requirement of scholarship (eg, textbooks are ineligible). • 4 Book Prize The book must have a publication or release date in the 12 months preceding the application. • Each publication can be nominated only once.
Non-Traditional • The NTRO must satisfy the HERDC definition of research. Research Output • The NTRO must have a publication or release date in the 12 months 5 (NTRO) preceding the application. • Each publication can be nominated only once.
Lifetime The criteria and application process for this medal is addressed in 6 Achievement Legal Appendix A: Lifetime Achievement Legal Research Medal. Research Medal
B. Nomination Process
The issue of nomination requirements has been a matter of ongoing debate in the design of the awards. Without some means of limiting the number of applications, the scheme may be overwhelmed with applications. The initial proposal suggested that each Associate Dean of Research in Law (or functional equivalent) (the ‘ADR’) could nominate only one entry for each award category. This proposal was rejected by CALD, but the underlying concern acknowledged.
A similar triaging function may be performed by an informal evaluative process, with each application requiring a nomination and endorsement from the relevant ADR. It is proposed that:
• each application must be nominated by the ADR at the institution at which the applicant is employed; • each nomination must include a short endorsement, setting out why – in the opinion of the ADR – the application represents an outstanding contribution to legal scholarship in the relevant field; and • In the normal case, the ADR should not nominate more than five entries for each award category.
It is expected that the imposition of this administrative hurdle will limit assessment to the most meritorious nominations.
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C. Application Form and Justification for Award
Much of the triaging function initially intended to be performed by the operation of a strict ‘one nomination per category’ rule can instead be performed by a calibrated application process. The imposition of this administrative hurdle may assist in both distilling out only the most meritorious applications. Additionally, this process will assist the judging panel in assessing nominations and significance of the work.
Every application must be accompanied by an application form:
• confirming that the application complies with all relevant eligibility requirements; • summarising the work, and outlining its significance and contribution to the relevant legal discipline; and • outlining why this work represents an outstanding example of legal scholarship, such that it would be a worthy recipient of the relevant prize.
All applications must include an electronic version of the publication so as to enable the efficient review and assessment of the publication.
• all applications must include a pdf version of the publication; and
• for books, initial applications must include a pdf version (an author’s manuscript or equivalent is sufficient). For any book that is shortlisted, it is expected that three (3) physical copies will be provided for final evaluation purposes.1
An example application form is attached in Appendix 2: Model Application Form. This form sets out the confirmation of eligibility and rationale for award as set out above.
D. Application Logistics and Administration
Administrative support is required to create the logistical infrastructure needed for the award scheme.
It is worth noting that LEAD is in the early stages of considering a similar national prize scheme for law teaching. If such a sister scheme is created, then it would make sense for the much of this infrastructure to be shared between the two schemes.
(i) Scheme Web pages
A web presence will help create and enhance the brand of the scheme, disseminate information regarding the relevant awards and their eligibility requirements, and encourage applications.
It is a matter of debate as to whether the web presence should occur through a stand alone ALRA website (or one shared with the teaching awards) or if it is better incorporated into an existing website, such as the CALD website. The former option will allow better brand creation for the respective schemes, and may allow more responsive design, maintenance and
1 The Chair of the relevant panel will, if necessary, coordinate with the author and the relevant publisher to facilitate this. 9
CALD Meeting Paper Page 71 CALD Meeting - 4 Oct 2019 Item B03(3) LADRN Position Paper – Australian Legal Research Awards celebration of winners. The latter option is likely to involve a reduced direct cost, and will promote a more integrated approach.
There is some discussion around the future role of the existing LEAD and CALD websites, and potential for a LADRN website. It may be that all four web presences can be integrated into a new website. This strategic decision needs to be considered by CALD. LADRN is willing to either:
• work to develop an ALRA web presence, with appropriate branding and imagery, within the current CALD website; or • develop a distinct ALRA website, with appropriate branding and imagery, that operates as a one-stop site for information regarding the scheme, applications, and recognition.
Both options can realistically be undertaken in the current timelines. No quotes have been sought as to either option.
(ii) Application Portal/Software
Ideally, applications will be through a web portal, to allow the collection and recording of relevant information at the point of application. There are a number of options that may be appropriate.
It is possible to produce a system at minimal cost using Google Sheets and manual processing. An AppSheet license may also assist in automating some of the processes. A basic prototype has been built and tested. Alternatively, it is possible to use SparkPlus together with hosting and administration costs.
This issue will be explored in greater detail once decisions regarding the website have been made.
(iii) Administrative Support
The creation and operation of this scheme will involve considerable administrative work. Given that the operation of the scheme will already be heavily dependent on the goodwill and voluntary assistance of a large number of legal academics, we suggest that it would be appropriate for CALD to provide direct financial support to allow the casual employment of administrative support for the daily operation of the scheme.
This administrative support officer will assist in:
• collating applications, and reviewing eligibility requirements; • supporting Panel Chairs in the coordination of Assessment Panels; • assisting in the distribution of applications, instructions for panel members, collations of shortlists and preparation of reports; • assisting in dealing with conflicts of interest and resultant shuffling of applications between panels; • assisting in preparing award certificates and notifications; • ensuring consistency of communication regarding the scheme, including website maintenance; and • providing general administrative support as necessary for the operation of the scheme. 10
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Given the complexity involved in establishing the scheme in its inaugural years, we suggest that a larger allocation, $4,000, be made in that first year, with an ongoing commitment of $2,000.
4. ASSESSMENT PROCESS
The work of assessing application for the awards will be conducted by a number of Assessment Panels, composed of volunteer legal academics and jurists. These Panels will assess applications and determine the award recipient for that category.
A. Assessment Panels
(i) Assessment Panels Chair
The first task in the overarching assessment process will be to appoint a Chair for each three- member Award Panel. This Chair will be responsible for the operation and coordination of the Panel in concluding its assessment.
• The Chair of LADRN and the Chair of the CALD Standing Committee on Legal Research will appoint a Chair for each Award Panel (the Award Panel Chair).
• Ideally, each Award Panel Chair will be a member of CALD or LADRN (or nominees) at the time of being appointed to chair the Award Panel.
• To ensure continuity, each Award Panel Chair should be appointed for an initial period of two years.
(ii) Composition of Award Panels
The principal work of assessing applications and determining the recipients of each award category will be conducted by the relevant Award Panels. The composition of these Award Panels will be governed by the following principles:
• The Chair of LADRN and the Chair of the CALD Standing Committee on Legal Research will coordinate with the Chair of each Award Panel to arrange and approve the composition of the panels and nominate the members of the Award Panels.
• There will be one Award Panel for each award.
• Each Award Panel will be comprised of three volunteer legal academics, at least two of whom should be employed, or have an adjunct or emeritus appointment, at an Australian law school. The third member can be an international legal academic (either employed or have an adjunct or emeritus appointment at a law school outside Australia).
• One member of each Award Panel should be at level C or equivalent.
Each member of CALD will use their best endeavours to ensure that:
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• a proportional number of their academic staff, depending on the number of applications submitted by that Law School, will serve on the panels, and
• the service to legal research involved in acting as an Award or Assessment Panel member, or chair, is recognised and acknowledged in workloads.
(iii) Operation of Panels
It will be the responsibility of each Award Panel to ensure that all applications are appropriately reviewed, where appropriate, shortlists are prepared for each category, and ultimately that the award recipient for the relevant category is determined. The operation of these Panels will be governed by the following principles:
• The Chair of each Award Panel will monitor the number of applications for each category so as to ensure that the workload of each panel is reasonable, and not unduly onerous given the relevant timeframes. Generally, Award or Assessment Panellists will be expected to assess no more than 15 applications in general, and no more than 5 books.
• The Award Panels will, on the basis of the application submission and the research itself, prepare a shortlist of the most outstanding applications in the relevant category;
• Each Award Panel will decide, by majority if necessary, the best application for the relevant category, to whom the award shall be made.
• The determination of each Award Panel is final.
• The Award Panel reserves the right not to grant an award in their category should no application be of sufficiently excellent quality.
If the volume of applications exceeds these numbers, Assessment Panels will be constituted to assist in the assessment and shortlisting of applications.
• The Chair of LADRN and the Chair of the CALD Standing Committee on Legal Research will coordinate with the Chair of the Award Panel to arrange Assessment Panels and approve the composition of the Assessment Panels and nominate the members of those panels.
• The Chair of the relevant Award Panel will allocate work to each Assessment Panel, with the aim of ensuring that the workload is shared equally between those panels.
• Assessment Panels will, on the basis of the application submission and the research itself, rate the applications in the relevant category.
• The Award Panel will collate those recommendations and assess, on the basis of the application submission, the research and the report of the Secondary Assessment Panels, to whom the award should be made.
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B. Assessment Criteria
In assessing applications and determining the awards, each Assessment Panel must bear in mind the objective of the scheme in celebrating and recognising research excellence and innovation in the discipline of law by Australian legal scholars. Law remains a diverse discipline, where excellence and innovation can in a number of ways. It is our position that, rather than being overly prescriptive, it is better to leave the determination of what constitutes excellence in a given case to the expertise and judgements of the Assessment Panel.
Each Assessment Panel will be asked to consider each application on the basis of:
• the Approach to Research (including issues of methodology, mode, style and effectiveness of presentation); and • the Contribution to Field (including the significance and timeliness of the research, its originality and quality of analysis, and its potential utility)
An indicative assessment form is attached to this Paper in Appendix 3: Model ALRA Assessment Report.
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5. AWARD PROCESS
The award process represents the culmination of the scheme, where award recipients are celebrated and recognised. This final section considers issues of what is being presented, and where that will occur.
A. Award Prize
While the recognition inherent in the awards will involve an intangible benefit, it is important to attach a concrete prize to each award. While this may be revisited in later years, particularly if there is a relevant benefaction, we suggest the scheme should created with the following prize scheme:
Category Prize 1 PhD Prize $1000 prize and Award Certificate 2 Article/Chapter (General) Prize $1000 prize and Award Certificate 3 Article/Chapter (ECR) Prize $1000 prize and Award Certificate 4 Book Prize $1000 prize and Award Certificate 5 Non-Traditional Research Output (NTRO) $1000 prize and Award Certificate 6 Lifetime Achievement Legal Research Medal and Award Certificate Medal
(i) Design of Prizes
The Award Certificate and Medal raise the issue of the branding and design of the prizes, and of the scheme more generally. Given that this is intended to be a prestige award, that helps foster the legal academic community and project our achievements more broadly, it is important that professional assistance is sought for these issues of branding and design. A unified approach to styling and branding will have a significant benefit in creating a distinct identity for the awards.
Once this scheme is approved, LARDN will, in collaboration with the CALD executive, engage a graphic designer to develop:
• an award scheme logo and branding; • an award scheme style guide; • award certificates, featuring the logo and style; and an • award medal.
An initial indicative quote suggests that such services would cost in the order of $5,000. It may be that designs, styles and branding can be shared with LEAD should a teaching award scheme be created.
Depending upon what choices CALD make with regards to websites and web presences for the scheme, this branding can be carried over to that context, and it may be that a single designer is utilised for both aspects.
An initial contact has also been made with a custom medal provider, with indications that a medal can be provided for a cost in the order of $500.
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B. Timing and Location of Awarding Ceremony
The awarding of the various prizes and awards in this scheme represents a valuable opportunity for the legal academy to come together to celebrate as a vibrant and dynamic research community.
There is not currently a single stand-out national research event into which it would be appropriate to incorporate this award presentation. Ideally, the ceremony would be a stand- alone event, perhaps linked to a signature lecture or address. However, the significant costs and logistics involved in organising such an event make it untenable at this time. This may be worth revisiting in future years if substantial sponsorship can be secured.
In the short term, we suggest that the award ceremony takes place at the opening reception of the annual AALA Conference. This gathering brings together a large number of legal academics from a diverse range of backgrounds. Moreover, many Law Deans may be able to attend if the continuance of the historic coincidence of CALD meetings and AALA conference is reinstated.
Initial discussions with the AALA executive have been positive in this regard. It may be appropriate that there is a contribution to catering for the event, but conversations have not yet reached this stage.
C. Exposure of Awards
Finally, some thought will need to be given as to how the scheme will gain exposure across the legal academy, and how the recipients will be celebrated. Some publicity will need to be given to the launch of the scheme, so that academics are aware of the opportunity, and given sufficient time to prepare applications. Similarly, once the awards are made, it would be beneficial to have an opportunity to publicise the winners and to bring attention to their research.
This publicity should draw upon a mix of media and techniques, including:
• Direct email communication to academics, both at nomination and award stage, via the relevant Deans/Head of School as coordinated through CALD. • Development of a social media presence for the scheme, particularly through Twitter; • Use of new pages on existing websites, including CALD’s, to disseminate information about the scheme; • Development of short feature reports on each recipient to be hosted online, to provide a permanent archive of winners and projects; • Development of an award badges that winners may include in their email signatures.
Some questions remain as to who will be responsible for creating and maintaining this campaign, which may require further consideration.
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6. AWARD TIMELINE
The draft timeline assumes that this working paper is delivered to the CALD Executive in late June and that the details of its proposals are accepted by CALD.
What When CALD approval of scheme and funding 31 July 2019 Engagement of graphic designer for brand development 15 August 2019 Finalisation of scheme rules and governing principles 15 October 2019 Finalisation of website 15 November 2019 Finalisation of application forms and processes 15 November 2019 Launch of Scheme; Call for Nominations published 30 November 2019 Chairs of Award Panels appointed 15 December 2019 Finalisation of all assessment forms and processes 31 January 2020 Award Panels convened 10 February 2020 Nominations close 2 March 2020 Assessment panels convened if necessary 9 March 2020 Applications evaluated (panellists’ assessments) 9 March- 3 April 2020 Award Panel meetings 6 April – 20 April Meeting of Chairs to determine final outcomes 27 April – 8 May 2020 Outcomes notified 12 May 2020 Awards conferred at ALAA conference July 2020
Operation Timelines Internal Assessment Timelines External Timelines
7. INITIAL BUDGET
Below is an indicative budget for the scheme, both in its first year of operation and the subsequent four years of its initial five-year commitment. 2020-2024 Budget Item 2019-20 (per annum) Administrative support $4,000 $2,000 Awards (5 awards @ $1,000 each: PhD, Article/Chapter, $5,000 $5,000 Article/Chapter ECR, Book, NTRO) Artwork and design (logo, award certificates and style guide) $5,000 Award certificates $100 $100 Lifetime Achievement Legal Research Medal $500 - – Initial design and commision – Ongoing cost $60 $70 TOTAL $14,660 $7,170
There are a number of potential costs that have not been included in this initial budget, and they are dependant upon strategic choices that need to be made at the CALD level. Principal amongst these are issues of web presence and award ceremony.
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2020-2024 Uncosted Budget Item 2019-20 (per annum) Website development $ TBA - Website maintenance - $ TBA Award Ceremony - Catering $ TBA $ TBA
Depending upon what choices are made here, we can seek further quotes to provide more detailed costing of these issues.
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APPENDIX A: LIFETIME ACHIEVEMENT LEGAL RESEARCH MEDAL
Lifetime Achievement Legal Research Medal Criteria
The Lifetime Achievement Legal Research Medal recognises individuals who have made a significant and enduring contribution to Legal Research relative to opportunity.
A. Eligibility
The Lifetime Achievement Research Medal is Australia’s most prestigious Legal Research award made to an individual nominee who has:
• an established and lengthy history of distinguished legal research (within the HERDC definition of research and experimental development) • made a lasting contribution to research practice • exhibited leadership and provided inspiration to others in the law • positively influenced and achieved impact in legal research on a state, national or international level.
The Lifetime Achievement Legal Research Medal is made in recognition of an individual nominee’s outstanding contributions to legal research. These contributions must be novel, creative, uncertain, systematic and transferable and/or reproducible. Importantly, the contributions should be above and beyond the everyday and have had an enduring impact on the law.
Nominees should have:
• made a positive impact on the law [at either state/territory or national level] • 25 years, or more, of sustained service to legal research; • earned recognition by the judiciary, the legal profession, government, or other industry or employer groups; • achieved the respect of professional peers; • general acknowledgement as having reached the pinnacle of their profession; • demonstrated an enduring contribution to the legal community; • an ongoing appointment, adjunct or emeritus position or other significant affiliation with an Australian law School; and • personal integrity.
B. Nomination Process
Any current Australian Law Dean may nominate, to the Executive of the Council of Australian Law Deans, a person, other than themselves, for the Lifetime Achievement Legal Research Medal.
• The nomination should include an overview, not exceeding 3 pages, of the person, their achievements and the reason for the nomination.
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• The award is based on the strength of the information contained in the nomination in meeting the selection criteria. The Executive, in consultation with CALD members will determine whether the Lifetime Achievement Legal Research Medal will be awarded to the person nominated.
• No correspondence will be entered into with the nominating dean or any other party concerning the process or outcome of the nomination.
C. Assessment Process
All applications will be assessed by the Executive of the Council of Australian Law Deans against the following criteria:
1. Criterion 1: History of Research: The nominee’s history of legal research - in particular, the degree to which it is: • aimed at new findings (novel), • based on original, not obvious, concepts and hypotheses (creative), • uncertain about the final outcomes (uncertain), • planned and budgeted (systematic), and • leads to results that could possibly be reproduced (transferable and/or reproducible)
2. Criterion 2: Significant Contribution and Positive Influence on the Law: The nominee’s significant contribution(s) to the advancement of legal research, including the teaching research nexus, awards or recognition from professional or industry groups and institutions, innovative approaches to difficulties. How the nominee’s story may inspire others to higher standards in their research or raise the community’s perception of legal research?
3. Criterion 3: Leadership: The nominee’s leadership in the field of legal research including, but not limited to, positively influencing policy or practice on a state, national or international level. This may include, but is not limited to Government committees and workgroups, advocacy, senior positions, other training, mentoring or committee participation. How have they “made a positive difference”?
The CALD Executive may award has discretion to award single medal, multiple medals or no medal in any given year.
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APPENDIX B: MODEL APPLICATION FORM
Australian Legal Research Excellence Awards Application Article/Chapter (General) Prize
1 Applicant
1.1 Applicant and research output details
Applicant Name Click or tap here to enter text. Please list the names of Click or tap here to enter text. any co-authors If there are co-authors, please tick to confirm that this application is ☐ made on behalf of all co-authors Field of Research code(s) for the output Click or tap here to enter text. Law School Name Click or tap here to enter text. Citation information for article/chapter Click or tap here to enter text.
Applicant signature Click or tap here to enter text.
1.2 Copy of research output
Please click here to upload a PDF copy of the article/chapter
1.3 Statement summarising the research output and outlining the appropriateness of the research approach
Click or tap here to enter text (500 word max).
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1.4 Statement outlining why the research output represents an outstanding example of legal scholarship
Click or tap here to enter text (500 word max). Please emphasise the contribution that it makes to the discipline of law.
2 Nomination by Associate Dean Research (or equivalent) of the Applicant’s Law School
2.1 Statement of endorsement by the Associate Dean Research as to why the research output represents an outstanding contribution to legal scholarship
Click or tap here to enter text (250 word max).
2.2 Confirmation by Associate Dean I confirm that: (Please tick) ● The research output falls at least 66% within FoR 18 as assessed by ☐ my institution for HERDC/ERA. ● The applicant is an academic staff member of my Law School ☐ employed at least 0.4 FTE. ● A majority of co-authors of the research output are employed at least ☐ 0.4 FTE as academic staff members of Australian Law Schools. ● The research output satisfies the HERDC definition of research. ☐ ● The research output has a publication or release date that falls within ☐ the calendar year preceding the application. ● The research output has not been nominated in a previous round and ☐ has not been nominated in another category in this round. ● I have nominated no more than 5 applicants for this award category. ☐
2.3 Signature of Associate Dean Research
Name Signature Date
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APPENDIX C: MODEL ALRA ASSESSMENT REPORT
1 Article / Chapter
Title of Article/Chapter Click or tap here to enter text. Name of Assessor Click or tap here to enter text. Date Received Click or tap here to enter text.
2 Recommendation
1 (Low) 2 3 4 5 (High) Overall Grading ☐ ☐ ☐ ☐ ☐ Shortlist Yes ☐ Maybe ☐ No ☐ Expert Evaluation Please tick this box if, in the assessor’s opinion, this paper needs ☐ to be assessed by a discipline expert to determine whether this Required paper should be elevated to the final shortlist
3 Evaluation
1 5 Content Strongly 2 3 4 Strongly N/A Disagree Agree Significant subject ☐ ☐ ☐ ☐ ☐ ☐ Adds to existing knowledge ☐ ☐ ☐ ☐ ☐ ☐ Related to previous scholarship ☐ ☐ ☐ ☐ ☐ ☐ Argument well developed ☐ ☐ ☐ ☐ ☐ ☐ Evidence related and compelling ☐ ☐ ☐ ☐ ☐ ☐ Appropriate methodology ☐ ☐ ☐ ☐ ☐ ☐ Sound methodology ☐ ☐ ☐ ☐ ☐ ☐ Well organised ☐ ☐ ☐ ☐ ☐ ☐ Clear and appropriate style ☐ ☐ ☐ ☐ ☐ ☐
Please review each research output using the following two criteria and write up a report of no more than 500 words that qualitatively describes the research and allocates a score out of 5 for the research output on each of the two criteria.
(1) Approach to Research Please provide a statement about the approach to research. You may wish to consider the following issues: • Are the methodologies appropriately articulated for work in the discipline? • Are the methodologies appropriate for the research questions or not? If no, what are the limitations or effects?
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• Is the style and form of the research (in terms of clarity of expression, structure, accessibility and persuasiveness) appropriate and effective?
Click or tap here to enter text.
Score Choose an item.
(2) Contribution to Field Please provide a statement about the contribution of the research output to the field of research. You may wish to consider the following issues: • Is the research timely? • Is the research (in terms of question and/or findings) significant? • What degree of originality and/or innovation is there in the research approach or research questions? • What is the level of theoretical and conceptual rigour in the research? • Does the research demonstrate depth of discussion and analysis? • What is the contribution nationally and/or internationally to the further development of knowledge and understanding (including the subsequently use of the research by others - whether academics, courts, Parliamentary committees, law reform commissions etc)?
Click or tap here to enter text.
Score Choose an item.
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Australian and New Zealand Standard Research Classification (ANZSRC) Review Indigenous Research Workshop 18 July 2019, Sydney Australia
Report: Feedback and Action Items
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Contents
1. INTRODUCTION ...... 3
BACKGROUND PAPERS 3
WORKSHOP STRUCTURE 3
REPORT ON THE WORKSHOP 3 2. KEY DISCUSSION POINTS ...... 4
RESEARCH PRACTICES 4
FIELDS OF RESEARCH (FOR) 5
SOCIO-ECONOMIC OBJECTIVES (SEO) 6 3. ACTION ITEMS ...... 7 4. OPTIONS FOR ANZSRC FIELDS OF RESEARCH (FOR) ...... 8
OPTION 1 – FOR AND SEO INDIGENOUS DIVISION AND GROUP CODES FOR ABORIGINAL AND TORRES STRAIT ISLANDER, MĀORI, PACIFIC PEOPLES AND OTHER INDIGENOUS 9
OPTION 2 – FOR AND SEO INDIGENOUS DIVISION AND GROUP CODES FOR INDIGENOUS DISCIPLINES/OUTCOMES 11
OPTION 3 – FOR AND SEO INDIGENOUS DIVISION AND GROUP CODES FOR DISCIPLINES/OUTCOMES AND PEOPLE 13
OPTION 4 – SEPARATE FOR AND SEO DIVISIONS FOR ABORIGINAL AND TORRES STRAIT ISLANDER AND MĀORI AND GROUP CODES BY DISCIPLINES/OUTCOMES 15
OPTION 5 – PROMOTING CURRENT FOR AND SEO FIELDS/OBJECTIVES TO GROUPS WITHIN THEIR CURRENT DIVISIONS, BROAD DISCIPLINES AND OUTCOMES 17 5. OPTIONS TO RECOGNISE INDIGENOUS RESEARCH IN OTHER DIVISIONS AND GROUPS .. 19
OPTION A – CROSS-REFERENCING NEW INDIGENOUS DIVISION WITH OTHER DIVISIONS 20
OPTION B – ANZSRC GUIDANCE ON ‘ALTERNATIVE GROUPINGS’ TO RECOGNISE NEW INDIGENOUS DIVISION DISCIPLINES/OUTCOMES IN OTHER DIVISIONS 21
OPTION C – ANZSRC GUIDANCE ON ‘ALTERNATIVE GROUPINGS’ OF DISCIPLINE/OUTCOME STRUCTURE TO RECOGNISE INDIGENOUS SEPARATELY 22 6. FEEDBACK TEMPLATE – ANZSRC REVIEW OPTIONS FOR ABORIGINAL AND TORRES STRAIT ISLANDER RESEARCH ...... 23
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1. Introduction The Australian Research Council (ARC), Australian Bureau of Statistics (ABS), Statistics New Zealand (Stats NZ), and the New Zealand Ministry of Business, Innovation and Employment (MBIE) are undertaking a joint review of the Australian and New Zealand Standard Research Classification (ANZSRC). To support the Review, the ARC and ABS are conducting a series of consultations with Australian stakeholders. A parallel process is being undertaken in New Zealand by MBIE and Stats NZ, with the results of both consultations informing the development of the revised ANZSRC.
As part of the consultation process, the ARC and ABS held a national Indigenous research workshop on 18 July 2019 in Sydney, Australia. The workshop brought together representatives from universities and peak bodies for Aboriginal and Torres Strait Islander research to discuss issues and suggestions for the classifications within the Australian context.
This report provides a summary of key points raised during discussion and action items arising from the workshop. The report will be distributed to workshop attendees and some others who were unable to attend on the day. Background Papers Prior to the workshop, an agenda with discussion questions and a copy of the ANZSRC Review discussion paper were circulated to registered participants. The discussion questions were developed from public consultation feedback received on Aboriginal and Torres Strait Islander research. At the workshop, participants were provided with a handout that grouped the Fields of Research (FoR) and Socio-economic Objectives (SEO) for Aboriginal and Torres Strait Islander, Māori and Pacific Peoples. Workshop Structure There were 31 participants representing universities and peak bodies for Indigenous research in Australia at the workshop. ARC and ABS staff attended to provide secretariat support and answer any questions about the Review. Discussions took place as a whole group and were facilitated by Professor Marcia Langton, Associate Provost, The University of Melbourne.
The day began with a presentation from the ARC and ABS on the ANZSRC Review and its scope as well as the broad issues raised through public consultation for Aboriginal and Torres Strait Islander research. The remainder of the day consisted of discussions around three main topics: Research Practices, Fields of Research (FoR) and Socio-economic Objectives (SEO). Report on the Workshop This report summarises the feedback and follow up actions from the workshop and is set out as follows:
Section 2 collates the key points for each of the three main discussion topics Section 3 summarises key proposals and action items coming out of the workshop Sections 4 and 5 outline some proposals for further discussion Section 6 includes a template for providing feedback to the ARC and ABS by 5 September 2019.
Note: Some comments were made about the processes of specific government programs which falls outside the scope of the ANZSRC Review. These comments are not included in this document but are being passed separately to the agencies responsible for those programs.
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2. Key Discussion Points Research Practices The Fields of Research (FoR) is the ANZSRC classification most used by Government and Australian universities followed by the Socio-economic Objectives (SEO). Therefore, the FoR was central to most of the discussion during the workshop. Discussion included who uses the FoR, how it is used and how people would like it to be used in future for Aboriginal and Torres Strait Islander research. Government uses
The main Government uses of FoR discussed at the workshop were grants submission and assessment processes at the ARC and the National Health and Medical Research Council (NHMRC). In these processes, the FoR is used to identify areas of research in grant applications and to assign assessors with appropriate expertise. Grant programs use the FoR at the Field (6-digit) level which is the most detailed level of the classification. The programs also allow applicants to identify multiple codes to recognise cross-disciplinary work. Other Government uses discussed included the ARC’s Excellence in Research for Australia (ERA) and Engagement and Impact Assessment (EI) which are national research evaluation exercises. These exercises use the FoR at the Group (4-digit) and Division (2-digit) levels. It was acknowledged that Aboriginal and Torres Strait Islander FoR only occur at the Field (6-digit) level. Both ERA and EI allow multiple codes to be apportioned to recognise multi- disciplinary work. It was acknowledged that the ANZSRC is also used by other Government departments but these uses were not discussed in detail during the workshop. University uses
Workshop participants discussed a range of ways in which universities use the FoR codes, including the following: o Australian universities are participants in the ARC and NHMRC grant funding programs as well as ERA and EI. The universities use the FoR and SEO in accordance with the requirements specified for each program. o Some universities use the codes to distribute funding internally. Those that do, use the Group (4-digit) level of the FoR whereas Aboriginal and Torres Strait Islander research codes occur at the Field (6-digit) level. o Some universities do not use FoR to allocate funding, instead focussing on income the researcher brings to the university or other measures. Aboriginal and Torres Strait Islander people
There was discussion about Aboriginal and Torres Strait Islander people wanting to know what research/data is being collected by them, for them and with them. The type of data that workshop participants are particularly interested in includes: o Funding – how much funding goes to Aboriginal and Torres Strait Islander research? o How many Aboriginal and Torres Strait Islander researchers are involved in awarded grants? o How many Aboriginal and Torres Strait Islander researchers are employed at each university? o What benefits are coming out of those research projects for Aboriginal and Torres Strait Islander people and communities? o How can people/communities access the data/research?
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It was suggested that at a national level the ARC and NHMRC may be able to provide some data. It was also suggested that universities collect this data at an institutional level and could be approached separately to obtain the data or through Universities Australia. Some acknowledged that approaching individual universities for the information could be an additional collection mechanism to seeking data from government, however if collection is not centralised the data may be inconsistent and not comparable. In principle agreement and actions
The ARC agreed to investigate what funding and workforce data is available from the ARC and NHMRC. Participants agreed to ask their universities for information on funding for Aboriginal and Torres Strait Islander research and employment of Aboriginal and Torres Strait Islander people. Representatives from Universities Australia agreed to ask Universities Australia about the data. Fields of Research (FoR) Are changes needed?
There was discussion about the visibility of Aboriginal and Torres Strait Islander research within the existing FoR structure. Currently, Aboriginal and Torres Strait Islander research occurs at the Field (6-digit) level which causes information to become invisible when analysis and reporting occurs at higher levels of the hierarchy. To address the issue of visibility, a number of suggestions were discussed to better identify Aboriginal and Torres Strait Islander research including: o new codes for Indigenous Research or Aboriginal and Torres Strait Islander research at Group (4-digit) and Division (2-digit) levels and potentially at Field (6-digit) level. o collect Fields (6-digit) for Aboriginal and Torres Strait Islander under the existing Division ‘16 Studies in Human Society’. o enable a ‘flag’ to identify Aboriginal and Torres Strait Islander research against any of the current codes at any level of the hierarchy. o promote all current Aboriginal and Torres Strait Islander Fields (6-digit) to Group (4-digit) level. Some people raised concerns about possible negative consequences for researchers identifying their research in more visible ways with new codes. There was also discussion about no change to the codes or that researchers might code their research differently to avoid potential negative consequences. Recognising that data can be used in many ways, positive and negative, there were views that the current structure of the FoR makes it difficult to know what data is available on Aboriginal and Torres Strait Islander research. Therefore as a first step, new higher level codes would enable Aboriginal and Torres Strait Islander research data to be identified and then analysed with greater precision for future benefits. Participants acknowledged that the purpose of current or potential new Indigenous codes in the ANZSRC is to classify research disciplines. The ethnicity of researchers involved in any research discipline, including Indigenous studies, is captured in other ways outside of ANZSRC.
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In principle agreement and actions
By the end of the day, there was strong in principle support for a new Division (2-digit) FoR to recognise Indigenous or Aboriginal and Torres Strait Islander research with appropriate subset codes. Several options were considered but more feedback is needed to determine the structure and subset codes. Options are detailed in Section 4 of this report. There was also strong support to enable Indigenous or Aboriginal and Torres Strait Islander research to be recognised not only under a new high level Indigenous research Division (2-digit) but also to be recognised under other discipline Divisions, for example Health or Education. This proposal needs to be considered further, in particular the potential consequences if the resulting classification is not strictly ‘mutually exclusive’. Options are outlined in Section 5 of this report. There was general concern that there were insufficient representatives from various disciplines (such as the sciences) to decide which subset codes should be included for specific disciplines. The ARC and ABS will arrange further consultation with discipline groups to inform these decisions.
What constitutes Indigenous research?
There was some discussion about what constitutes Indigenous research and how a new structure would consider Māori, Pacific Peoples and other Indigenous peoples internationally. However, participants were not comfortable with deciding on Māori or Pacific Peoples without their input. There was also discussion about recognition of international Indigenous research in the codes particularly where Aboriginal and Torres Strait Islander research is working with international Indigenous researchers.
In principle agreement and actions
The ARC and ABS will seek advice from New Zealand on the feedback and discussions concerning Māori or Pacific Peoples. Socio-economic Objectives (SEO) There was less discussion about the SEO codes. Generally, there was agreement that, similar to the FoR, the SEO classification needs further consideration for Aboriginal and Torres Strait Islander objectives and how they should be structured. These considerations will be included in discussions with discipline groups. Options have been developed based on similar principles to the FoR and support for representation of Aboriginal and Torres Strait Islander research at higher levels of the classification. The SEO options are outlined alongside the FoR options in Section 4.
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3. Action Items
Proposal Action
Research Data Investigation There was discussion around what data is Representatives of Universities Australia agreed available, particularly on the amount of funding to approach Universities Australia about what for Aboriginal and Torres Strait Islander type of data might be available collectively. research and the number of Aboriginal and Workshop participants agreed to find out what Torres Strait Islander researchers employed at data is available from their university through the universities. It was acknowledged that the ARC Deputy Vice-Chancellor Research (or equivalent) and NHMRC may be able to provide some of this data, but universities and Universities The ARC will investigate what data they have Australia may also be able to provide this type available and approach the NHMRC about the of data. data they have available.
New FoR codes (options in Section 4) Feedback required on options and consultation While there was strong in principle support for The ARC will conduct further consultation with Indigenous research representation at Division universities and a spread of discipline experts on (2-digit) and Group (4-digit) levels, more Indigenous research. feedback is needed about the structure of any Options for new FoR and SEO Divisions (2-digit) new Division (2-digit) and/or Group (4-digit) and Groups (4-digit) are outlined in Section 4 . with subset codes. Options have been Options for recognising Indigenous FoR and SEO developed for consideration (see Section 4). in other disciplines are outlined in Section 5. Further consultation recommended with You can give feedback on any or all of these Indigenous research discipline experts. options by using the template at Section 6. Further information requested on New Zealand We are also seeking your advice on who to perspectives relating to Māori and Pacific consult for the various discipline groups in STEM Peoples for ANZSRC. and HASS to develop the Fields and Objectives Recognising Indigenous FoR in other (6-digit) of the FoR and SEO classifications. The disciplines (options in Section 5) feedback template includes this question. There was strong in principle support to Please provide your feedback by email to ARC- recognise Indigenous research both under its [email protected] by COB Thursday, own discipline as well as another discipline 5 September 2019 (such as Health or Education).
The importance of this proposal is acknowledged and will need to be considered further. See options in Section 5. New SEO codes (options in Section 4) The SEO codes also require further consultation. Options have been modelled on the same principles for changing FoR. See Section 4 of this report.
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4. Options for ANZSRC Fields of Research (FoR) This section outlines five options for structuring Aboriginal and Torres Strait Islander FoR and SEO for further consultation and feedback. The options are based on the in principle support from workshop participants to represent Indigenous or Aboriginal and Torres Strait Islander research at higher levels of the FoR and SEO hierarchies. The options are not provided in any particular order and do not indicate any order of preference.
Each option includes examples to demonstrate a possible FoR and SEO structure for each classification. For simplicity, the examples do not include complete sets of codes. The codes and naming of codes used in the examples do not indicate any preferences for specific codes or naming of codes.
Comments on the options in this section can be provided using the feedback template in Section 6 of this report.
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Option 1 – FoR and SEO Indigenous Division and Group codes for Aboriginal and Torres Strait Islander, Māori, Pacific Peoples and Other Indigenous The structure of Option 1 is to include a new FoR and SEO code at Division (2-digit) level for Indigenous. The Groups (4-digit) would be determined by separate groups of people (Aboriginal and Torres Strait Islander, Māori, Pacific Peoples and Other Indigenous). Fields/Objectives (6-digit) would be determined by disciplines/outcomes. Specific Groups (4-digit) and Fields/Objectives (6-digit) to be included would need to be determined.
The FoR example below uses 23 as the Division (2-digit) code.
The SEO example below uses 98 as the Division (2-digit) code.
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Option 1 – Strengths and Challenges
Strengths Challenges Captures Indigenous research at a higher Details of disciplines remain at level of the FoR and SEO hierarchy Field/Objective (6-digit) level and Enables data to be captured separately for therefore may be less visible for reporting various Indigenous groups in Australia, purposes. New Zealand and more broadly Moving the Groups and Fields/Objectives to an Indigenous Division will have a statistical impact on Divisions such as Health, Education, Cultural Studies and others.
Question for Feedback
If Option 1 is supported:
Which disciplines should be included at Field (6-digit) level of the FoR? Which outcomes should be included at the Objective (6-digit) level of the SEO? Would there be any significant consequences if there is a low amount of research activity at Group (4-digit) or Field/Objective (6-digit) level? Explain.
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Option 2 – FoR and SEO Indigenous Division and Group codes for Indigenous disciplines/outcomes The structure of Option 2 is to include a new FoR and SEO code at Division (2-digit) level for Indigenous. The Groups (4-digit) would be determined by Indigenous disciplines/outcomes. The Fields/Objectives (6-digit) would identify Aboriginal and Torres Strait Islander, Māori, Pacific Peoples and Other Indigenous. Specific Groups (4-digit) and Fields/Objectives (6-digit) to be included would need to be determined.
The FoR example below uses 23 as the Division (2-digit) code.
The SEO example below uses 98 as the Division (2-digit) code.
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Option 2 – Strengths and Challenges
Strengths Challenges Captures Indigenous research at a higher Details of various First Nations peoples levels of the hierarchy are identified at Field/Objective (6-digit) Enables discipline/outcome data to be level which may be less visible in reporting captured at Group (4-digit) level at higher levels. Aboriginal and Torres Strait Islander fields interspersed with other Indigenous groups. Moving the Groups and Fields/Objectives to an Indigenous Division will have a statistical impact on other Divisions such as Health, Education, Cultural Studies and others.
Questions for Feedback
If Option 2 is supported:
Which disciplines/outcomes should be included at Group (4-digit) level? Will Aboriginal and Torres Strait Islander, Māori, Pacific Peoples and Other Indigenous be needed at Field/Objective (6-digit) level codes for all discipline/outcome groupings? Explain. Would there be any significant consequences if there is a low amount of research activity at Group (4-digit) or Field/Objective (6-digit) level? Explain.
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Option 3 – FoR and SEO Indigenous Division and Group codes for disciplines/outcomes and people The structure of Option 3 is to include a new FoR and SEO code at Division (2-digit) level for Indigenous. The Groups (4-digit) would be based on disciplines/outcomes and Indigenous people (Aboriginal and Torres Strait Islander, Māori, Pacific Peoples and Other Indigenous). The Fields (6-digit) would be based on more specific disciplines/outcomes by groups of people. The specific Groups (4-digit) and Fields/Objectives (6-digit) to be included would need to be determined.
The FoR example below uses 23 as the Division (2-digit) code.
The SEO example below uses 98 as the Division (2-digit) code.
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SEO Option 3 – Strengths and Challenges
Strengths Challenges Captures Indigenous research at a higher Moving the Groups and Fields/Objectives levels of the hierarchy. to an Indigenous Division will have a Enables more granular data to be captured statistical impact on other Divisions such by disciplines and Indigenous peoples at as Health, Education, Cultural Studies and Group (4-digit) level. others. Enables more detailed research disciplines/outcomes to be identified at Field/Objective (6-digit) level not currently available.
Questions for Feedback
If Option 3 is supported:
Which disciplines/outcomes should be included at Group (4-digit) level for Aboriginal and Torres Strait Islander? Which disciplines/outcomes should be included at Field/Objective (6-digit) level for Aboriginal and Torres Strait Islander and how should they be grouped? Would there be any significant consequences if there is a low amount of research activity at Group (4-digit) or Field/Objective (6-digit) level? Explain.
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Option 4 – Separate FoR and SEO Divisions for Aboriginal and Torres Strait Islander and Māori and Group codes by disciplines/outcomes The structure of Option 4 is to include a new FoR and SEO code at Division (2-digit) level for Aboriginal and Torres Strait Islander with Māori in a separate Division. The Groups (4-digit) would be based on disciplines/outcomes for Aboriginal and Torres Strait Islander. The Fields/Objectives (6-digit) would be based on more specific disciplines/outcomes. The specific Groups (4-digit) and Fields/Objectives (6-digit) to be included would need to be determined.
The FoR example below uses 23 as the Division (2-digit) code for Aboriginal and Torres Strait Islander.
The SEO example below uses 98 as the Division (2-digit) code for Aboriginal and Torres Strait Islander.
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Option 4 – Strengths and Challenges
Strengths Challenges Captures Aboriginal and Torres Strait Would need further consultation with Islander outcomes at the highest level of New Zealand concerning a separate the hierarchy Division for Māori Enables more granular data to be captured Need to consider where Pacific Peoples by outcomes at Group (4-digit) and and Other Indigenous would fit within this Objective (6-digit) levels not currently type of structure available Moving the Groups and Fields/Objectives to an Indigenous Division will have a statistical impact on other Divisions such as Health, Education, Cultural Studies and others Likely that volume in some Divisions will be too low to allow for useful statistical analysis
Questions for Feedback
If Option 4 is supported:
Which disciplines/outcomes should be included at Group (4-digit) level for Aboriginal and Torres Strait Islander? Which disciplines/outcomes should be included at Field/Objective (6-digit) level for Aboriginal and Torres Strait Islander? Where would Pacific Peoples and Other Indigenous fit into this structure? Would there be any significant consequences if there is a low amount of research activity at Division (2-digit), Group (4-digit) or Field/Objective (6-digit) level? Explain.
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Option 5 – Promoting current FoR and SEO Fields/Objectives to Groups within their current Divisions, broad disciplines and outcomes The structure of Option 5 is to promote the current Field/Objective (6-digit) codes for Aboriginal and Torres Strait Islander to the Group (4-digit) level. Any new and emerging areas of Aboriginal and Torres Strait Islander research to be included would need to be determined. Besides this primary structure, alternative groupings could also be provided.
The FoR example below uses the current Division 05 Environmental Sciences with amendments showing Aboriginal and Torres Strait Islander, Māori and Pacific Peoples related research at the Group level.
The SEO example below uses the current Division 92 Health with amendments showing Aboriginal and Torres Strait Islander, Māori and Pacific Peoples related research at the Group level.
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Option 5– Strengths and Challenges
Strengths Challenges Enables improved visibility of Aboriginal Requires alternative grouping of Group and Torres Strait Islander research without (4-digit) codes across multiple Divisions breaching the conceptual framework of the classification or impacting negatively on statistical outputs Indigenous research remains recognised under the discipline in which it is related
Question for Feedback
If Option 5 is supported:
What do you think are the strengths and weaknesses of this approach? Would this proposal result in improved visibility of Aboriginal and Torres Strait Islander research?
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5. Options to recognise Indigenous research in other Divisions and Groups This section presents three options to enable Aboriginal and Torres Strait Islander research to be recognised within its own discipline/outcome or in another relevant Division or Group of the FoR and SEO. The first two options are presented in the scenario of a new Indigenous Division created for FoR and SEO classifications and aligns with Options 1-4 described in Section 4 of this report. The third option is presented in the scenario of the current Fields/Objectives (6-digit) being promoted to Group (4-digit) in the FoR and SEO classifications. The third option aligns with Option 5 described in Section 4 of this report.
The ordering of the options does not indicate any order of preference.
Any examples included are intended to demonstrate how the option would work. For simplicity the examples do not include every possible set of codes. The codes and naming of codes used in the examples do not indicate any preferences for specific codes or naming of codes.
Comments on the options in this section can be provided using the feedback template in Section 6 of this document.
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Option A – Cross-Referencing new Indigenous Division with other Divisions Option A is presented in the event a new Indigenous Division is created in the FoR and SEO classifications (see Options 1-4 for details). The option uses cross-referencing to list a code in both a new Indigenous Division (2-digit) and another Division. The example below shows cross-referencing based on a new Division for Indigenous (coded to 23) and Group (4-digit) discipline of Indigenous History (coded as 2301) also listed with Division 21 History and Archaeology. The same code would show under both Divisions.
Example: Include Indigenous code under Indigenous Division and History and Archaeology Division 23 Indigenous 21 History and Archaeology 2301 Indigenous History 2101 Archaeology 2102 Curatorial and Related Studies 2103 Historical Studies 2199 Other History and Archaeology 2301 Indigenous History
Option 1 Cross Referencing – Strengths and Challenges
Strengths Challenges Enables Aboriginal and Torres Strait This proposal needs to be considered Islander research to be captured further, in particular the potential separately and within another discipline consequences if the resulting classification Use of same code, in this example 2301, is not strictly ‘mutually exclusive’ clearly identifies Aboriginal and Torres Care will need to be taken to ensure that Strait Islander wherever it is referenced cross-referencing does not cause double counting in statistical outputs
Question for Feedback If Option 1 is supported:
What do you think are the strengths and weaknesses of this approach?
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Option B – ANZSRC Guidance on ‘Alternative Groupings’ to recognise new Indigenous Division disciplines/outcomes in other Divisions Option B is presented in the event a new Indigenous Division is created in the FoR and SEO classifications (see Options 1-4 for details). The option is to provide supporting guidance to users on how to recognise Indigenous research in its own Division and alongside another Division. The current ANZSRC includes guidance on ‘Alternative Groupings of FoR Fields’ and ‘Alternative Groupings of SEO Objectives’ to recognise Aboriginal and Torres Strait Islander Studies, Māori Studies and Pacific Peoples Studies in the classifications. If a new Indigenous Division (2-digit) is created for Indigenous research, ANZSRC would include supporting guidance that relevant Groups (4-digit) and Fields (6-digit) of the new Indigenous Division could be included in calculations for other disciplines. For example, if Group 2301 ‘Indigenous History’ were part of the new Division, the ANZSRC would include guidance that reporting on ‘History and Archaeology research’ could also include Group 2301 alongside Division 21 History and Archaeology. Option B Guidance – Strengths and Challenges
Strengths Challenges Enables flexibility for Aboriginal and Torres It would be up to individual users whether Strait Islander research to be captured alternative groupings are used for separately or within another discipline particular purposes Clearly identifies discipline Division and Aboriginal and Torres Strait Islander calculation separately
Question for Feedback If Option B is supported:
What do you think are the strengths and weaknesses of this approach?
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Option C – ANZSRC Guidance on ‘Alternative Groupings’ of discipline/outcome structure to recognise Indigenous separately Option C is presented in the event Aboriginal and Torres Strait Islander Fields/Objectives (6-digit) are promoted to Group (4-digit) level (see Option 5 for details) within existing discipline/outcome Divisions (2-digit) of the FoR and SEO. The option is to provide supporting guidance to users on how to analyse and report on Indigenous research as a separate grouping as the need arises. This is provided in the current ANZSRC which includes guidance on ‘Alternative Groupings of FoR Fields’ and ‘Alternative Groupings of SEO Objectives’ to recognise Aboriginal and Torres Strait Islander Studies, Māori Studies and Pacific Peoples Studies as their own groupings in the classifications. Option C Guidance – Strengths and Challenges
Strengths Challenges Enables Aboriginal and Torres Strait It would be up to individual users whether Islander research to be captured under alternative groupings are used for relevant Divisions (2-digit) and Groups particular purposes (4-digit) within the current structure or grouped separately as needed
Question for Feedback If Option C is supported:
What do you think are the strengths and weaknesses of this approach?
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6. Feedback Template – ANZSRC Review Options for Aboriginal and Torres Strait Islander Research Please use this template to provide your feedback on any or all options for structuring FoR and SEO and for recognising Indigenous research in other disciplines/outcomes. We are also seeking any general feedback and advice on who we should consult for the various discipline groups in STEM and HASS to develop the Fields and Objectives at 6-digit levels of FoR and SEO classifications. Please provide your feedback by email to [email protected] by COB Thursday, 5 September 2019
Feedback from (name and organisation/group): ______
No. Option Supported Feedback N=No/ You are welcome to keep or remove the questions as part of your Y=Yes / response. V=Yes with variation 1 General Feedback N/A What general considerations should we take into account to determine the most appropriate structure and subset codes for Aboriginal and Torres Strait Islander? Is there any other general feedback you would like to provide? 2 Further consultation N/A Who should we talk to in HASS disciplines? The ARC and ABS are seeking contacts for all research disciplines Who should we talk to in STEM disciplines? (STEM and HASS) to discuss these options and which Fields and Objectives need to be included in the FoR and SEO classifications Options for FoR and SEO structures for Indigenous research 3 Option 1 – FoR and SEO Division for Indigenous/ Group by Any feedback on this option and Aboriginal and Torres Strait Islander, Māori, Pacific Peoples and If this option is supported: Other Indigenous/ Field/Objective by discipline/outcome
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No. Option Supported Feedback N=No/ You are welcome to keep or remove the questions as part of your Y=Yes / response. V=Yes with variation E.g., FoR 23 Indigenous> 2301 Aboriginal and Torres Strait Which disciplines should be included at Field (6-digit) Islander> 230101 Aboriginal and Torres Strait Islander Health level of the FoR? E.g., SEO 98 Indigenous> 9801 Aboriginal and Torres Strait Which outcomes should be included at the Objective (6- Islander> 980101 Aboriginal and Torres Strait Islander Health digit) level of the SEO? Would there be any significant consequences if there is a low amount of research activity at Group (4-digit) or Field/Objective (6-digit) level? Explain. 4 Option 2 – FoR and SEO Division for Indigenous/ Group codes for Any feedback on this option and Indigenous disciplines/outcomes/ Fields/Objectives for If this option is supported: Indigenous peoples Which disciplines/outcomes should be included at Group E.g., FoR 23 Indigenous> 2301 Indigenous Health> 230101 (4-digit) level? Aboriginal and Torres Strait Islander Health Will Aboriginal and Torres Strait Islander, Māori, Pacific E.g., SEO 98 Indigenous> 9801 Indigenous Health> 980101 Peoples and Other Indigenous be needed at Aboriginal and Torres Strait Islander Health Status, 980102 Field/Objective (6-digit) level codes for all Māori Health Status discipline/outcome groupings? Explain. Would there be any significant consequences if there is a low amount of research activity at Group (4-digit) or Field/Objective (6-digit) level? Explain. 5 Option 3 – FoR and SEO Division for Indigenous/ Group codes for Any feedback on this option and disciplines/outcomes by groups of people/ Fields/Objectives for If this option is supported: specific disciplines Which disciplines/outcomes should be included at Group E.g., FoR 23 Indigenous> 2301 Aboriginal and Torres Strait (4-digit) level for Aboriginal and Torres Strait Islander? Islander Health> 230101 Aboriginal and Torres Strait Islander Which disciplines/outcomes should be included at Mental Health, 230101 Aboriginal and Torres Strait Islander Field/Objective (6-digit) level for Aboriginal and Torres Infectious Diseases Strait Islander and how should they be grouped? E.g., SEO 98 Indigenous> 9801 Aboriginal and Torres Strait Would there be any significant consequences if there is a Islander Health> 980101 Aboriginal and Torres Strait Islander low amount of research activity at Group (4-digit) or Field/Objective (6-digit) level? Explain.
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No. Option Supported Feedback N=No/ You are welcome to keep or remove the questions as part of your Y=Yes / response. V=Yes with variation Health Status, 980102 Aboriginal and Torres Strait Islander Health System Performance 6 Option 4 – FoR and SEO Division for Aboriginal and Torres Strait Any feedback on this option and Islander and separate Division for Māori/ Group by If this option is supported: discipline/outcome/ Field/Objective for specific Which disciplines/outcomes should be included at Group discipline/outcome (4-digit) level for Aboriginal and Torres Strait Islander? E.g., FoR 23 Aboriginal and Torres Strait Islander/ 2301 Which disciplines/outcomes should be included at Aboriginal and Torres Strait Islander Health> 230101 Aboriginal Field/Objective (6-digit) level for Aboriginal and Torres and Torres Strait Islander Mental Health Strait Islander? E.g., SEO 98 Aboriginal and Torres Strait Islander/ 9801 Where would Pacific Peoples and Other Indigenous fit Aboriginal and Torres Strait Islander Health> 980101 Aboriginal into this structure? and Torres Strait Islander Health Status Would there be any significant consequences if there is a low amount of research activity at Division (2-digit), Group (4-digit) or Field/Objective (6-digit) level? Explain. Option 5 – Promoting current FoR and SEO Fields/Objectives to Any feedback on this option and Groups within their current Divisions, broad disciplines and If this option is supported: outcomes What do you think are the strengths and weaknesses of E.g., FoR 05 Environmental Science/ 0501 Aboriginal and this approach? Torres Strait Islander Environmental Knowledge> 050101 Would this proposal result in improved visibility of Aboriginal and Torres Strait Environmental Knowledge Aboriginal and Torres Strait Islander research? E.g., SEO 92 Health/ 9201 Aboriginal and Torres Strait Islander Health> 920101 Aboriginal and Torres Strait Islander Health– Determinants of Health Options for recognising Indigenous research across Divisions 7 Option A – Cross-Referencing new Indigenous Division with Any feedback on this option and other Divisions If this option is supported: E.g., 23 Indigenous/ 2303 Indigenous History and listed at 21 What are the strengths and challenges of this approach? History and Archaeology/ 2303 Indigenous History
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No. Option Supported Feedback N=No/ You are welcome to keep or remove the questions as part of your Y=Yes / response. V=Yes with variation 8 Option B – ANZSRC Guidance on ‘Alternative Groupings’ to Any feedback on this option and recognise new Indigenous Division disciplines/outcomes in other If this option is supported: Divisions What are the strengths and challenges of this approach? E.g., reporting ‘History and Archaeology research’ can include FoR 2301 Indigenous History (from new Indigenous Division) alongside Division 21 History and Archaeology 9 Option C – ANZSRC Guidance on ‘Alternative Groupings’ of Any feedback on this option and discipline/outcome structure to recognise Indigenous separately If this option is supported: E.g., Include guidance that Indigenous Groups and What do you think are the strengths and weaknesses of Fields/Objectives from existing Divisions be grouped together this approach? to recognise Indigenous separately
Feedback Template – ANZSRC Review Options for Aboriginal and Torres Strait Islander 26
CALD Meeting Paper Page 111 CALD Meeting - 4 Oct 2019 Item B04 CALD STANDING COMMITTEE ON International Matters
Report for the CALD meeting at Edith Cowan University, 4 October 2019 Professor Pip Nicholson, Standing Committee Chair
(1) CHINA JURIS DOCTOR (JD) ACCREDITATION UPDATE A recent proposal by the China Service Centre for Scholarly Exchange (CSCSE) raised concerns that the Australian JD would be certified in a manner that disadvantaged Australian JD graduates against those with a JD qualification from the United States. The proposal is currently on hold pending further consideration. The Department of Foreign Affairs and Trade plans to meet with the CSCSE on our behalf in late October and will enquire as to the current status of the proposal. They will seek that the certification be consistent with the United States JD, and take into account the certification treatment of Australian Doctorates of Medicine (MD). Please see paper E03(9) for further detail.
(2) INDIA – RECOGNITION OF AUSTRALIAN UNIVERSITIES ACCREDITED IN 2015 Professor Picker met with representatives of the Bar Council of India (BCI) on Friday 6 September 2019 in Delhi to discuss the following points: The details of degrees accredited, specifically, amendments sought to degrees offered for each of the 14 law schools who applied for recognition in 2015, and which were published on the BCI website. In response, the BCI requested that they be provided with the original documentation submitted for accreditation in 2015, along with the accreditation letters each school received in response, in order to verify our amendments. This work is in progress. The duration of the current accreditation, and whether the duration could be aligned to the Australian academic year. The BCI was open to consideration of this request upon formal application. The process for reaccreditation, including when the process should commence, and what form it might take. This point was the subject of some discussion, and we may need to seek further instructions from senior contacts within the BCI.
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Report for the CALD meeting at Edith Cowan University, 4 October 2019 Professor Nick James, Standing Committee Chair
(1) LEAD RESPONSE TO LACC ON THE CHANGES TO THE PRIESTLY 11 ON BEHALF OF AUSTRALIAN LAW SCHOOLS LACC has circulated for feedback a proposal regarding the redrafting of the academic requirements for admission (the ‘Priestley 11’). The deadline for submission of feedback was 30 September 2019.
The LEAD Convenors have held meetings with various LEAD members to settle the content and wording of its response to LACC. Broadly, there is general support from LEAD members for the revision of the Academic Requirements for Admission as set out in the review. LEAD welcomes the revision in wording of the Priestley 11 to make them more consistent with the Threshold Learning Outcomes (TLOs) and the requirements set out in the Australian Qualifications Framework (AQF). LEAD members are supportive of the descriptions of the Academic Requirements for Admission as being indicative and not prescriptive and that they should be adaptable to change.
LEAD members have offered some general and some specific recommendations for LACC’s consideration, relating to: Indigenous perspectives and cultural competency Emerging technology and the Priestley 11 The wording of the proposed Priestley 11 The ‘Evidence’ and ‘Torts’ areas of knowledge.
The specific content of the response was not settled until the LEAD meeting on 27 September leaving insufficient time for the LEAD submission to be considered and potentially formally endorsed by CALD. However I have been involved with the drafting of the submission, it has my own approval, and I can speak to its content at the CALD meeting on 4 October.
(2) LEAD UPDATE The most recent meeting of LEAD was held in Adelaide on Friday 27 September. The agenda for that meeting included the following: LEAD response to LACC: final discussion prior to submission on Monday 30 September National Law Teaching Awards Proposal Student and peer evaluation of teaching, including use as evidence for teaching awards CPLE’s Impact of Emerging Technologies on Core Law Subjects Project – update CPLE’s proposal for annual law school survey and yearbook.
An oral report of the outcomes of the meeting will be presented at CALD on 4 October.
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Thank you for the opportunity to provide feedback on the LACC’s Redrafting The Academic Requirements For Admission.
I write on behalf of the Legal Education Associate Deans’ Network (LEAD). LEAD represents all Associate Deans – Teaching & Learning (or equivalent) of Law Schools around Australia, and is supported by the Council of Australian Law Deans (CALD). LEAD has undertaken consultation with its members and the comments below are presented on their behalf.
Support for the Revision of the Priestley 11
There is general support from LEAD members for the revision of the Academic Requirements for Admission as set out in the review. We welcome the revision in wording of the Priestley 11 to make them more consistent with the Threshold Learning Outcomes (TLOs) and the requirements set out in the Australian Qualifications Framework (AQF).
LEAD members would like to record some general and some specific recommendations, as set out below, for LACC’s consideration. We note that there are many substantive and contextual issues relevant to legal education and that different law schools may assign different importance to these. Such issues include internationalisation, globalisation, social justice, pro bono and community lawyering, as well as the two key areas we have focused on in this submission, Indigenous perspectives and cultural competency, and the impact of emerging technology.
Indigenous Perspectives and Cultural Competency
The primary feedback recorded by LEAD concerns the potential for incorporation of Indigenous perspectives and cultural competency into the prescribed areas of knowledge. This review of the Priestley 11 presents an opportunity to take an important step towards recognition of Indigenous peoples, perspectives, rights and laws as an essential part of Australian legal education. We acknowledge that this area is complex and must involve an approach that is based on self‐determination and addresses not just legal curricula, but also decision‐making strategies and cultural safety, as well as extending to issues like employment. It is incumbent upon legal education providers and accrediting bodies to ensure that Indigenous cultural competency is appropriately developed in collaboration with Indigenous peoples, recognising the diversity of Indigenous Australians and their unique cultural systems. This area should not be rushed; it will take time for legal education providers to determine how to most appropriately develop Indigenous cultural competency.
There are two primary ways in which incorporation of Indigenous perspectives and cultural competency into the prescribed areas of knowledge could be achieved, and LEAD recognises that there are advantages and disadvantages to both and that members differ in their views.
The first approach would be to incorporate recognition of Indigenous perspectives, rights and laws in the prefatory paragraphs to the prescribed areas on knowledge. This could involve an additional sentence or paragraph, identifying the importance of an understanding of Indigenous perspectives, rights and laws for applicants for admission to the Australian legal profession, and recognising that Indigenous perspectives, rights and laws should inform the “fundamental areas of legal knowledge” referred to in the Threshold Learning Outcomes (TLOs), recognising cultural competency as an essential attribute for admitted practitioners.
1 CALD Meeting Paper Page 114 CALD Meeting - 4 Oct 2019 Item B05(1) The second approach would be to embed Indigenous perspectives, rights and laws into the relevant Priestley 11 prescribed areas of knowledge. This would likely require more work to be done by the groups responsible for the re‐drafting each of the prescribed areas of knowledge, though could also be accomplished by incorporating reference to the impact or relationship of each area of law on Indigenous rights and laws, potentially in part (a) of the description, where relevant, as well as in descriptions of specific areas within the Priestley 11, as already reflected in the descriptions of Constitutional law and Property.
LEAD realises that both approaches will require more work to be done as part of this review. We would recommend that this include consultation with Indigenous experts and non‐Indigenous experts with appropriate knowledge.1 LEAD encourages LACC to consult with industry experts within the CALD Working Party on First Peoples Partnership. In addition, LACC may find the Indigenous Cultural Competency for Legal Academics Program (ICCLAP) Final Report a helpful resource, as this sets out guiding principles for the incorporation of Indigenous cultural competency into curriculum and the embedding of Indigenous cultural competency into law programs.2
Emerging Technology and the Priestley 11
The second most commonly raised issue identified in discussions with LEAD members is that of recognition of the impact of emerging technology on the law in the Priestley 11 prescribed areas of knowledge, including how the law is administered, enforced and practised, and how this will change what current and future lawyers need to know and be able to do. LEAD notes that the Centre for Professional Legal Education (CPLE) at Bond University is currently leading a project on the impact of emerging technology on each of the Priestley 11 subject areas, and that LEAD is promoting this project through its network.
It may be appropriate to consider insertion of reference to the impact of emerging technology on the substance and practice of law in the prefatory comments to the prescribed areas of knowledge. However, some LEAD members consider that this is not necessary as this impact is implicit in the proposed framework which recognises that there is no intent to ‘prevent the teaching of new developments in the relevant law, its context or practice.’ This statement leaves it to law schools to determine how to most appropriately address the issues raised by emergent technology for their curriculum and the graduates they are seeking to produce. LEAD recognises the value in allowing law schools the scope to shape their curriculum to meet the needs of their students, whilst also meeting the requirements for the prescribed areas of knowledge.
Comments of the wording of the proposed Priestley 11
LEAD members would like to raise some issues relating to the descriptions of the Priestley 11 generally, and then specifically in relation to the description of some of the prescribed areas of legal knowledge.
LEAD members are supportive of the descriptions of the Academic Requirements for Admission as being indicative and not prescriptive and that they should be adaptable to change. However, there is some concern that current practice in application of these standards is in fact prescriptive. As a result, LEAD members recommend that it would be helpful to include a more accurate statement outlining how the requirements are intended to be used, and by whom.
LEAD was interested in the use of the word ‘[u]nderstanding’ at the beginning of each area of knowledge given that expression of learning outcomes would tend to favour adoption of words that would indicate how students would demonstrate their knowledge or understanding and their skills in applying that knowledge. Given the focus in
1 There is extensive literature in this field, including a recent special edition of the Legal Education Review which contains insights on the challenges and opportunities of embedding Indigenous cultural competency in law and how we may be able to rise to meet them. In particular LEAD notes the article by Marcelle Burns, Simon Young and Jennifer Nielsen, ‘The Difficulties of Communication Encountered by Indigenous People: Moving Beyond the Indigenous Deficit in Model Admission Rules For Legal Practitioners’ (2018) 28(2) Legal Education Review 405 – 431. 2 See the ICCLAP website for more detail
Members have also noted that there are differences between descriptions of the prescribed areas of knowledge that may reflect the nature of the process undertaken to produce those descriptions and which may be appropriately amended for greater cohesion and consistency. Examples include the descriptions in part (a) of each area of prescribed knowledge. Most (though not all) adopt wording that reflects the theoretical basis of the area of law; some also refer to social context and/or historical context. There may be scope to develop consistent wording across the areas of prescribed knowledge for part (a), potentially also including the impact of Indigenous knowledge, rights and laws.
It has also been noted that there is a clear difference between how some areas of prescribed knowledge are drafted overall compared to others. As an example, the description of Contract and Property are quite general, whereas the description of Corporations Law, Criminal Law and Procedure, Evidence and Equity are more detailed with multiple examples. There have been concerns raised about this leading to a different approach in assessing compliance of some subjects compared to others in an accreditation process, particularly given that the previous Priestley descriptions included an ‘or’ category prefaced by the words “topics of such breadth and depth as to satisfy the following guidelines…’, which is no longer present in the descriptions. This reinforces the point made above about the need to more accurately outline exactly how the requirements for admission are to be applied by admitting authorities (including that they are indicative and not prescriptive).
Members have noted that the approach to drafting the requirements in Contracts or Property is to be preferred, whereas the lists in Company Law, Criminal Law and Procedure, Equity and Evidence, for example, are seen as too prescriptive. LEAD would recommend that a more consistent approach be adopted and that this be modelled on the broader approach taken to stating the requirements in Contracts or Property. Such a re‐framing would also enable learning outcomes to be drafted so as to encompass Indigenous perspectives and cultural competency as well as the impact of emerging technology on the Priestley area. LEAD would strongly recommend that a more consolidated and higher‐level approach be taken to the drafting of the requirements for admission to practice.
Other feedback offered by LEAD members concerns the standard specified of the ability of applicants for admission to be able to demonstrate that they can prepare a “sound draft advice to a client”; this potentially reflects a quite rigid view of how demonstration of mastery of knowledge and skills may be shown, given the broad scope of work an admitted lawyer may undertake.
Notes on specific subject descriptions:
Some LEAD members have also made suggestions around the wording of particular Priestley 11 areas:
Evidence
It has been suggested that Part (b) may be better worded as ‘the nature and sources of evidence law (for example common law and statutory provisions)’ rather than making a distinction between common law and uniform evidence jurisdictions.
Part (c) refers to credibility and the presumption of innocence. It is recommended that credibility is removed from (c) as it is already (and more appropriately) included in part (f). It should also be considered if the presumption of innocence is more a fundamental principle of criminal law than it is evidence law (and so appropriately removed from the description of Evidence requirements).
The reference to ‘tendency (disposition)’ evidence may be more appropriately expressed as ‘tendency (propensity)’ evidence if referring to the uniform evidence law and common law terminology.
3 CALD Meeting Paper Page 116 CALD Meeting - 4 Oct 2019 Item B05(1) Torts
Part (e) refers to ‘how common law and statute deal with multiple wrongdoers (for example, vicarious and concurrent liability)’. Technically, vicarious liability does not involve multiple wrongdoers – instead it involves ascribing liability to a defendant who has not committed any wrong. It is suggested that this be reworded to ‘common law and statutory methods for ascribing liability (for example, vicarious and concurrent liability)’ or something similar.
Again, thank you for the opportunity to provide feedback on the LACC’s Redrafting The Academic Requirements For Admission. We hope that LEAD’s feedback is helpful and constructive.
Yours sincerely,
Judith Marychurch
Co‐convenor, Legal Education Associate Deans’ (LEAD) Network
September 2019
4 CALD Meeting Paper Page 117 CALD Meeting - 4 Oct 2019 Item B05(1)
Vi Kacevska
Subject: RE: LEAD Submission on Revised Descriptions of Academic Requirements for admission
Begin forwarded message:
From:
Dear Judith
I have just read the submission from LEAD and write to thank you and your group for its very helpful comments. I thought it might be helpful for me to respond to you, although the Steering Committee will obviously consider the document and report to LACC on the various submissions received.
LEAD's concerns about the place of Indigenous perspectives and emerging technology have been identified by others as requiring attention. While the latter is implicit in elements of the TLOs, their place as part of the descriptions of prescribed areas of knowledge is, as you suggest, something that will required careful thought and, I suspect, considerable consultation. At its last meeting, LACC acknowledged that the present limited exercise of trying to develop descriptions that are more compatible with the TLOs and AQF, but do not alter the substance or scope of the existing descriptions, needs to be followed by a comprehensive review of the substance of the prescribed areas of knowledge. There was talk of ensuring that it is on LACC's workplan for the coming year; and Lesley Hitchens foreshadowed that CALD may well choose to devote resources to such a project. (Funding for such projects is, as you will appreciate, very difficult to organise.)
My expectation would be that the issues you raise will be central to that review; but I suspect that LACC may seek to adopt revised descriptions as soon as possible, rather than incur the delay that wide further consultation would necessarily entail.
As to the use of "understanding", we have been guided rather by the AQF descriptions, as well as item 1 of the TLOs, in choosing this term.
I note your suggestion that it might be helpful "to more accurately outline how the requirements for admission are to be applied by admitting authorities". There are significant political sensitivities about the autonomous statutory authority of each admitting authority. LACC has, however, drawn their attention to the significant issues arising from the 2017 Phillips KPG Report Professional Accreditation – Mapping the Territory. Indeed, the present revision of the drafting of the prescribed areas of knowledge is directly attributable to the suggestions in that report.
In relation to your other feedback, I should perhaps note that the task of an admitting authority is to certify to the Supreme Court that a person applying for admission to the legal profession is equipped to engage in legal practice. Requiring an applicant to be able to prepare sound draft advice to a client responds to that obligation. It is not the task of an admitting authority to consider the possibility that an applicant for admission
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CALD Meeting Paper Page 118 CALD Meeting - 4 Oct 2019 Item B05(1) may undertake employment other than as a legal practitioner, as you appear to suggest. Admission to the legal profession is not a pre-condition for employment other than as a legal practitioner.
I shall, of course, arrange for your comments about Evidence and Torts to be considered by those responsible for preparing those drafts.
Please thank your colleagues for a most helpful and thoughtful contribution.
Kind regards
Sandy
Sandford D Clark AM Chairman Law Admissions Consultative Committee [email protected] D: +61 3 9679 3375 | M: +61 419 334 225
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CALD Meeting Paper Page 119 CALD Meeting - 4 Oct 2019 Item B05(2) Legal Education Associate Deans Network (LEAD Network) Report to CALD, September 2019
LEAD key contacts:
Judith Marychurch [email protected] (03) 8344 7683 or 0408 951 519 Co‐convenor, Melbourne Law School
Julian Laurens [email protected] 0439 988 675 Project officer, UNSW Law
LEAD ex officio member from CALD: Nick James, Bond
Finances: Report on expenses 2017/ 2018 financial year: Attachment 1
LEAD account at UNSW –account closed after balance reduced to NIL. LEAD account set up at Melbourne Law School, University of Melbourne early 2019 Invoice for $10,000 for 2018/2019 financial year to be issued to CALD with funds to paid into LEAD account
2018 Meetings
27 September 2019: 18 attendees* (Flinders University)
Meeting agenda: Attachment 2
3 May 2019: 19 attendees* (University of Melbourne)
Meeting agenda: Attachment 3
* Average number of attendees at meeting since 2015 ‐2018 is 15, with an overall upward trend, particularly in 2019, as reflected in 2019 attendance.
Recent LEAD activities between meetings:
Submission to LACC: Redrafting the Academic Requirements for Admission (September 2019) Response to revision of CALD Standards (submitted 25 June 2019) Feedback from members to LEAD colleagues on the teaching of Priestley subjects in their programs and other issues as they arise (informal benchmarking) Updated survey on class recording practices at Australian law schools (June 2019), building on previous survey (August 2018) with increased response (up to 16) Continued promotion of national research project: The Impact of Emergent Technologies Upon the Teaching of Core Law Units in the Australian law Curriculum (Centre for Professional Legal Education, Bond University) Dissemination of calls for papers, conferences and other T&L initiatives Updating of LEAD website
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CALD Meeting Paper Page 120 CALD Meeting - 4 Oct 2019 Item B05(2)
LEAD Strategic Plan: 2019 – 2020
Consistent with the MOU between CALD and LEAD, LEAD seeks to provide a national forum for those leading teaching and learning in the discipline of law in their law schools. The aims of the Network include:
the promotion, documentation and dissemination of good practice in legal education in Australia, including through the maintenance and on‐going development of Network’s website facilitation of communication to members of issues arising in legal education nationally and internationally enhancement of professional development opportunities for members through mentoring and collegial sharing of information relevant to the development of professional skills in their teaching and learning leadership roles the provision of a forum to discuss issues, both of policy and substance, arising in legal education and where appropriate, to develop responses in the form of o dissemination of information o research projects facilitated by the Network o development of resources such as Good Practice Guides o submissions to the Council of Australian Law Deans (CALD)
At its September 2018 meeting, LEAD confirmed its commitment to these objectives and agreed that a renewed focus on providing a ‘hub’ for the dissemination of good practice and excellence in legal education is needed. Email correspondence between meetings, and use of the LEAD mailing list by LEAD members as well as the convenor has increased significantly between the May and September 2019 meetings.
In 2019, LEAD has sought to continue to be a collegial support network for associate deans of legal education (or equivalent) to curate, share and disseminate resources and examples of excellence, innovation and good practice in legal education. There is a high degree of annual turnover in LEAD membership as people move in and out of T&L leadership roles. Maintaining an up to date list of members is a continuous process, as is welcoming new members and thanking departing members for their contribution to the group.
LEAD members have been regularly using the Network mailing list to seek feedback or informal benchmarking for work they are doing in their own law schools and institutions, and to disseminate information on upcoming T&L events to enable members to then communicate to their staff.
In the 2018 strategic plan prepared for LEAD, one of the goals was to seeks to develop LEAD’s capacity to provide strategic advice to CALD and other bodies, groups and individuals (eg. accrediting authorities, LACC; tertiary institutions) on issues confronting legal education in Australia, and to advocate for the future of legal education in Australia. In 2019, LEAD members have collaborated at face to face meetings, online meetings, online documents and via email to gather feedback on the CALD Standards and to compile a detailed response to the LACC Redrafting of the Academic Requirements for Admission.
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CALD Meeting Paper Page 121 CALD Meeting - 4 Oct 2019 Item B05(2) Review against the 2019 Action Plan (included in 2018 Report to CALD
1. Review website and website platform, to create a ‘hub’ for teaching and learning in law:
Aim: raise the profile of LEAD and provide a tool for communications and dissemination of information, good practice and innovation in teaching and learning.
LEAD has found that the most effective method of communication with members is via email.
The LEAD website has been reviewed and cleaned up. New members are referred to the LEAD website. Progress in 2019 has been limited due to availability of the LEAD executive officer and having effectively a single co‐ convenor, Judith Marychurch (UoM) due to a change in role of one of the co‐convenors, Mandy Shircore (JCU) from early in the year. Additional co‐convenors were appointed at the 27 September 2019 meeting, being Kelley Burton (Southern Queensland University) and Michael Nancarrow (Central Queensland University).
LEAD will continue to disseminate information on conferences, symposia and workshops on teaching and learning in legal education, as well as to provide a conduit through which members can seek feedback and information on issues of interest from members for the purposes of curriculum review, accreditation and other purposes.
2. Develop communication strategy to increase profile (social media, podcasts, resources)
The benefits of LEAD as a network are known to members, who have been able to utilise the group’s contacts via email to gain insight into how issues are evolving at other law schools to assist in their own projects, reviews and reports. The collegiality of the group is repeatedly emphasised in handover by members to new representatives joining LEAD.
In 2019, CALD has included the LEAD co‐convenor on email distributions which has been tremendously helpful in enabling targeted, regular communications with LEAD members and encouraging members to liaise with their own staff.
LEAD has also contributed feedback on the CALD Standards after discussions at its May meeting and collation of feedback via a shared Google document. In August and September 2019, LEAD members participated in Zoom meetings to discussion the LACC Redrafting of the Academic Requirements for Admission. Feedback was subsequently compiled into a draft submission prepared by co‐convenor Judith Marychurch and disseminated to members for further comment, resulting in a penultimate draft being distributed on 25 September for finalisation at the 27 September LEAD meeting and submission by the 30 September deadline. This process has been highly collaborative, engaging many members in a project to respond to an issue of national significance for law schools and the legal profession.
3. Disruption in legal education
LEAD has continued to explore issues posed by disruption as they impact on legal education, building on the work on this issue from 2017 and 2018, including through its roundtable discussions and promotion of the national project through the Centre for Professional Legal Education at Bond University The Impact of Emergent Technologies Upon the Teaching of Core Law Units in the Australian law Curriculum. LEAD’s May 2019 meeting featured a presentation on the Hackathon run at MLS which stimulated interesting discussion. LEAD will continue to work to support the CPLE project via Nick James (Bond; CALD liaison to LEAD) into 2020; this item is on the agenda for the 27 September 2019 meeting.
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CALD Meeting Paper Page 122 CALD Meeting - 4 Oct 2019 Item B05(2) Additional items for work in 2020
Proposal for National Law Teaching Awards
This is currently under development, to match the recent LADRN national research award proposal presented to CALD. Six categories of teaching award (to align with the LADRN proposal) were discussed with LEAD members at the 27 September 2019 meeting with general support for approximately six categories. Input will be sought from members by the end of 2019 to facilitate drafting of a proposal by LEAD working group members Judith Marychurch (UoM), Kylie Burns (Griffith) and Vivienne Holmes (ANU) by early 2020 for input by members and finalisation to refer to CALD in March 2020.
Student Surveys of Teaching
Concerns about the reliability and use of student surveys of teaching performance was identified as a high priority by LEAD members. Falling response rates, discriminatory and abusive comments, and impact on academic wellbeing were common concerns. The Canadian arbitration decision in Ryerson University and The Ryerson Faculty Association has reinforced these concerns. Julian Laurens, LEAD Project Officer, has begun compilation of a literature review on this area. Due to positive member response, this project will be continued and potentially expanded to consider developments in peer review of teaching at some law schools and universities. This will also feed into considerations of the evidence base that may be submitted by applicants for teaching awards.
Benchmarking of Academic integrity Practices and Processes
LEAD members, including Professor Nick James as CALD liaison with LEAD, considered that another worthwhile project would be a benchmarking exercise relating to how academic integrity matters are handled at different law schools. Members raised concerns about staff workload in investigating matters, which may mean that some suspected academic integrity breaches are not fully investigated; and concerns about students using contract cheating services, including cases of contract cheating providers subsequently blackmailing students, graduates and/or practitioners relating to past use of contract cheating services. The proposed Commonwealth legislation on prohibiting academic cheating services also makes this a current topic for consideration.
Website
LEAD would like to explore options for establishing a web presence available from the CALD website. As discussed with Tania Leiman (Flinders) at the September 2019 LEAD meeting, we wonder if there may be opportunities for cost savings for website hosting and administration if CALD, LEAD and LADRN (if agreeable to each group), shared a web presence, with LEAD and LADRN having pages available from the CALD website. LEAD would be interested in further conversation on this if this is of interest to CALD and/or LADRN.
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CALD Meeting Paper Page 123 CALD Meeting - 4 Oct 2019 Item B05(2) Attachment 1
Report on Expenditure 2018/ 2019 Financial Year
See below for the print out of the relevant account at UNSW as at 24 September 2018. It is worth noting that UNSW/LEAD did not receive the final funds from CALD till 27 October 2017 (this was due to a number of technical issues rather than a CALD issue). By that stage there were a number of outstanding invoices related to the network which were immediately paid. There were no accommodation and travel costs associated with the April UNSW LEAD meeting as the Project Officer works there.
As per the 2018 LEAD Report to CALD, as at the end of the 2017/2018 financial year, the balance of the LEAD account held at UNSW was $1,324.74. There were however some outstanding expenditure items and the balance of this account was reduced to NIL and closed.
A LEAD account has been set up at Melbourne Law School under LEAD co‐convenor Judith Marychurch to facilitate ongoing LEAD financial management. Julian Laurens has been employed on a sessional basis under a UoM contract to provide project officer support to LEAD. LEAD’s primary expenditure since receiving $10,000 for CALD earlier in 2019 (for 2018/2019) has been:
Project officer hours (sessional):
68 hours owing from 2018 and unclaimed via UNSW due to insufficient funds: $3108.28 Plus approx. 40 hours for 2019 (details pending – approx. $1800) Travel and accommodation reimbursement to Julian Laurens to attend LEAD meetings:
Melbourne ‐ $750.08 and Adelaide ‐ pending Catering costs for LEAD meetings:
Melbourne – $1850 Adelaide ‐ $1267.55 Approx. total: $8775 plus travel for Project Officer to Adelaide for September meeting
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CALD Meeting Paper Page 124 CALD Meeting - 4 Oct 2019 Item B05(2) Attachment 2
AGENDA ‐ Legal Education Associate Dean’s Network Network Meeting, Friday 27 September 2019
Flinders University City Campus 182 Victoria Square, Adelaide Room 2.2, Level 2
Time Topic
9:15 – 9:45am Arrival – coffee/tea /light refreshments
9:45– 10:30am Welcome and Introductions: 1. Acknowledgement of Country 2. Introductions, with identification of two ‐three key issues, challenges or opportunities each for further discussion 3. Summary of activities since the last meeting (May 2019)
10:30 – 11:00am 4. LEAD response to LACC: final discussion prior to submission on Monday 30 September (30 mins) Updated document to be sent to members on Thursday 26 September after close of feedback COB Wednesday 25 September
11:00 – 11:15 Morning Tea
11:15 – 12:15pm 5. National Law Teaching Awards Proposal Working group (May meeting): Kylie Burns, Vivienne Holmes, Judith Marychurch
Attachment 1: LADRN proposal
12:15 – 12:45pm 6. Student and peer evaluation of teaching, including use as evidence for teaching awards
12:45 ‐1:45 LUNCH
1:45 – 3:00pm 7. Report from Nick James, CALD liaison for LEAD, and Executive Dean and Executive Director, Centre for Professional Legal Education (Bond University)
Including: CPLE’s Impact of Emerging Technologies on Core Law Subjects Project – update CPLE’s proposal for annual law school survey and yearbook
3:00 – 3:15 Afternoon tea
3:15 – 4:00pm 8. Lead co‐convenors: Kellie Burton (University of Sunshine Coast) and Michael Nancarrow, (Central Queensland University) have volunteered to assist Judith Marychurch (University of Melbourne) 9. Conclusion/ next steps/ ideas for 2020/ wrap up 10. Next LEAD meeting ‐ Offers to host LEAD meetings in 2020 include UTS
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CALD Meeting Paper Page 125 CALD Meeting - 4 Oct 2019 Item B05(2) Attachment 3
AGENDA ‐ Legal Education Associate Dean’s Network Network Meeting, Friday 3 May 2019 Melbourne University Law School, Boardroom Level 10, 185 Pelham Street Melbourne Access via Level 9 stairs.
Time Topic
9:15 – 9:30 Arrival – coffee/tea /light refreshments
9:30– 10:30 Welcome, Acknowledgment of Country and Introductions Previous meeting proceedings and matters arising General roundtable – current challenges and opportunities in legal education at your law school (list taken to be discussed in more depth at later session)
10:30 – 11:00 Update for members on 2018 report to CALD and request for increased funding (Judith Marychurch and Mandy Shircore – 5 mins) CALD Report – (Nick James, Bond Law and CALD Standing Committee on Legal Education)
11:00 – 11:15 Morning Tea
11:15 CALD Standards ‐ briefing and discussion (Tania Sourdin, Newcastle) 1 hour
12:15 Report of 2019 Wellness For Law Forum and proposal for Wellness Network for Law relationship with 10 minutes LEAD (Judith Marychurch, MLS and co‐convenor of the 2019 Forum with Adiva Sifris from Monash)
12:25 Presentation – the link between wellbeing and ‘action on one’s [pro‐social] values’ (Vivienne Holmes, 20 minutes ANU)
12:45 ‐1:45 LUNCH
1:45pm Presentation – Hackathon (Jason Bosland, MLS) 30 mins
2:15 – 3:00 Roundtable discussion: Review of member issues raised in the introduction and presentations from the morning, including CALD standards and plans for progressing discussion of disruption on the teaching of law and legal skills Discussion re Updates to Centre for Professional Legal Education proposed national Project., ‘The Impact of Emergent Technologies Upon the Teaching of Core Law Subjects in the Australian Law Curriculum’ (Nick James)
3:00 – 3:15 Afternoon tea
3:15 – 4:00 Conclusion/ next steps/ wrap up Next LEAD meeting ‐ Thursday 3 October 2019, possibly Notre Dame WA (timed to precede CALD on 4 October also in WA), TBC. Possible joint session with NALA Offers to host LEAD meetings in 2020 include UTS
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CALD Meeting Paper Page 126 CALD Meeting - 4 Oct 2019 CALD STANDING COMMITTEE ON Item B06 Standards, Accreditation and the Legal Profession
Report for the CALD meeting at Edith Cowan University, 4 October 2019 Professor Tania Sourdin, Standing Committee Chair
INTRODUCTION There is one main matter to be considered at the October 2019 CALD meeting. Following the March CALD meeting, a significant amount of work commenced relating to the CALD Australian Law School Standards. Inputs were sought from a range of bodies and the revision areas noted at the March meeting were the subject of specific feedback. In addition, all Law Schools which were not certified by the March CALD meeting were contacted by the Chair and additional applications were made and will be dealt with by the ALSSC (see below).
(1) CALD AUSTRALIAN LAW SCHOOL STANDARDS The Australian Law School Standards were developed from 2005 – 2009 and formally adopted in 2009 by CALD. They were the subject of revision in 2013 to incorporate teaching and learning outcomes. In 2019 the ALSSC made a number of suggestions relating to the revision of the Standards.
In 2019, a small project sponsored by CALD commenced and findings are noted below (see also supporting documentation). Three documents have been prepared to assist with the revision of the CALD Standards. These are:
(a) A document compiling commentary and feedback on the Standards (paper B06(1)(a)). This includes feedback actively sought as part of the revision process and also commentary on the Standards taken from ALSSC meetings and associated documents.
(b) A preliminary revised version of the CALD Standards with suggested changes made using the ‘track changes’ function of Microsoft Word (paper B06(1)(b)).
(c) A document of further information which may assist the revision process, making reference to other existing Standards documents (international and Australian) as a point of comparison (paper B06(1)(c)). This document also highlights some outstanding issues for discussion.
These documents work together and each offers different information relevant to the CALD Standards revision. Audience familiarity with publications, groups and acronyms referred to is assumed and so detailed citations and/or explanations are not provided. Where feedback is reproduced, it appears largely verbatim and at times without quotation marks for ease of reading.
Feedback has been received and compiled from the following sources: Action Items for ALSSC Meeting, 10 September 2018 ALSSC Meeting, 10 September 2018 ALSSC Interim Certification Invitation, July 2014 ALSSC Meeting, 2 April 2019 Charles Sturt University Library, written feedback, 11 September 2019 Deakin University Library, written feedback, 13 September 2019 Griffith University Library, written feedback, 13 September 2019 Introduction and Context to the CALD Standards for Australian Law Schools, March 2014 LEAD, written feedback, May 2019
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\Drafts & Word versions\B06 ‐ Standards Report.docx Page 1 CALD Meeting Paper Page 127 CALD Meeting - 4 Oct 2019 Item B06 LEAD Meeting on CALD Standards, 3 May 2019 Michael Black, ALSSC Report to CALD on interim certification process, 6 March 2017 Michael Black, The CALD Standards for Australian Law Schools: Much More than Course Content, 2018 Monash University Library, written feedback, 12 September 2019 Reid Mortensen (USQ and CALD Working Party on Review of CALD Standards), written feedback Sourdin Report, March 2019 University of Melbourne Library, written feedback, 16 September 2019 University of Newcastle Library, verbal and written feedback, 29 August 2019 and 3 September 2019 University of Wollongong Library, written feedback, 10 September 2019 Working Party on First Nations Partnerships, written feedback, May 2019
As part of the consultation process, feedback was sought in relation to Standard 5 via the Australian and New Zealand Academic and College Law Libraries (ANZACLL) network, with responses provided by seven universities: Deakin, Griffith, University of Newcastle, Monash, University of Melbourne, University of Wollongong, and Charles Sturt University. Further comment can be sought from the network of university library Assoc directors if necessary. As the feedback was robust and often conflicting, it may benefit from Committee discussion in order to determine the path forward.
Other Standards documents which offer comparison for a revision of the CALD Standards are:
European Foundation for Management Development (EFMD) Quality Improvement System (EQUIS), ‘EQUIS Standards and Criteria’ (2019) Association to Advance Collegiate Schools of Business (AACSB), ‘2013 Eligibility Procedures and Accreditation Standards for Business Accreditation’, (2018) Australian Medical Council, ‘Standards for Assessment and Accreditation of Primary Medical Programs by the Australian Medical Council’ (2012) American Bar Association, ‘American Bar Association Standards and Rules of Procedure for Approval of Law Schools 2019‐2020’ (2019).
For CALD discussion / decision / approval: There are some specific overarching issues where guidance is sought from CALD members:
(1)(a): One significant concern that was raised in relation to standards was the use of the word ‘appropriate’ to determine whether CALD was meeting standards There are two approaches that could be used to address this issue.
(i) Option One: We specify minimum requirements in relation to some standards. This is the approach that takes place in relation to some comparative standards. For example, CALD could determine that the minimum staff size of a law School is 15EFT (no sessional staff). There are a number of issues with this approach. First, some law schools would be disadvantaged. Second, there will be compliance costs. Third, it will take some time for CALD to agree on minimum levels in a range of areas.
(ii) Option Two: We prepare a Guidance document that sits behind the Standards and gives examples in relation to each of the standards area.
(1)(b): Another concern relates to the inclusion of an indigenous focus. In the revised draft there is reference to indigenous inclusion throughout the document. This approach was taken as a result of feedback. Another approach to make a more general statement and perhaps also include a statement about gender equity in staff employment and recognition and support for diversity and inclusiveness.
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\Drafts & Word versions\B06 ‐ Standards Report.docx Page 2 CALD Meeting Paper Page 128 CALD Meeting - 4 Oct 2019 Item B06 (1)(c): There is a focus on the law library area and some input from law librarians about this. It may be that we need to revise the standards so that there is a statement about dedicated and sufficient resources (rather than discussing a law library).
(2) UPDATE ON CERTIFICATION Most Australian Law Schools have now been certified under the Standards: Application Certification University Current Dean/Head Status Date Australian Catholic University Prof Rocque Reynolds Submitted Australian National University Prof Sally Wheeler OBE Certified 24‐Feb‐2017 Bond University Prof Nick James Certified 24‐Feb‐2017 Charles Darwin University Assoc Prof Alan Berman Did not apply Charles Sturt University Assoc Prof Alison Gerard Did not apply CQUniversity Australia Prof Stephen Colbran Certified 01‐May‐2017 Curtin University Prof Robert Cunningham Submitted Deakin University Prof Jenni Lightowlers Certified 14‐Mar‐2017 Edith Cowan University Assoc Prof Joshua Aston Certified 06‐Mar‐2017 Flinders University Assoc Prof Tania Leiman Certified 14‐Mar‐2017 Griffith University Assoc Prof Therese Wilson Certified 06‐Mar‐2017 James Cook University Prof Elizabeth Spencer Certified 24‐Feb‐2017 La Trobe University Assoc Prof David Wishart Certified 01‐Mar‐2017 Macquarie University Prof Marc de Vos Certified 24‐Feb‐2017 Monash University Prof Bryan Horrigan Certified 24‐Feb‐2017 Murdoch University Ms Sonia Walker Certified 07‐Apr‐2017 Queensland University of Technology Assoc Prof Allan Chay Certified 06‐Mar‐2017 RMIT University Prof Kathy Douglas Certified 24‐Feb‐2017 Southern Cross University Prof William MacNeil Certified 24‐Feb‐2017 Swinburne University of Technology Prof Dan Hunter Did not apply The University of Adelaide Prof Melissa de Zwart Certified 24‐Feb‐2017 The University of Melbourne Prof Pip Nicholson Certified 24‐Feb‐2017 The University of Newcastle Prof Tania Sourdin Certified 24‐Feb‐2017 The University of Notre Dame, Australia Prof Joan Squelch Certified 24‐Feb‐2017 (Fremantle) The University of Notre Dame, Australia Prof Michael Quinlan Certified 24‐Feb‐2017 (Sydney) The University of Queensland Prof Patrick Parkinson AM Certified 24‐Feb‐2017 The University of Sydney Prof Simon Bronitt Certified 24‐Feb‐2017 The University of Western Australia Prof Natalie Skead Certified 14‐Mar‐2017 University of Canberra Assoc Prof Benedict Sheehy Certified 24‐Feb‐2017 University of New England Prof Michael Adams Certified 24‐Feb‐2017
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For CALD discussion / decision / approval:
Review of CALD Standards: It is suggested that:
(2)(a): all CALD members to provide feedback on the draft Standards by 30 October.
(2)(b): a small CALD subcommittee meet, consider the revised Standards and refer any more complex matters back to CALD (if needed). There are some matters where it may be that a subcommittee will not recommend any changes to the existing Standards.
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The CALD Standards for Australian Law Schools
As Adopted 17 November 2009 and Amended to March 2013
Feedback
Part A: The Standards
1. Fundamental issues, mission and objectives 1.1 Academic autonomy 1.1.1 The law school has the responsibility and capacity to design, develop and deliver a law course which meets these Standards.
NAME COMMENT/FEEDBACK
CQU (LEAD) Acknowledged. However, where a Law Discipline sits within a wider School, such as a School of Business and Law, the capacity to meet these standards will need to be accommodated within that wider operational context.
MLS (with LEAD Agreed with CQU. Multiple law schools are now part of larger faculties, sometimes with other hat on) disciplines that are quite diverse. However, this standard is important because it gives a law school within a broader faculty scope to advance their case for sufficient autonomy (within university policy and processes for course approval) to control their law degree offering at undergraduate or postgraduate level, and access to sufficient resources to deliver a degree complying with these standards.
1.2 Aspiration in regard to these Standards 1.2.1 The law school seeks to exceed the requirements of these Standards.
NAME COMMENT/FEEDBACK
CQU (LEAD) Replace ‘seeks’ with ‘undertakes to make best endeavours’.
1.3 Statement of mission and objectives 1.3.1 The law school has defined its mission and the objectives of the law course, and has made them known to students and other stakeholders. 1.3.2 The law school’s mission encompasses teaching, research and community engagement. 1.3.3 The law school’s mission encompasses a commitment to the rule of law, and the promotion of the highest standards of ethical conduct, professional responsibility, and community service.
NAME COMMENT/FEEDBACK
CQU (LEAD) 1.3.1 Where a Law Discipline sits within a wider School a separate Mission may not be possible.
CQU (LEAD) 1.3.3 Add after ‘service’ ‘and inclusion with particular attention to facilitating legal education to students in regional Australia and through diverse digital learning.’
CALD Meeting Paper Page 131 CALD Meeting - 4 Oct 2019 Item B06(1)(a)
Working Party 1.3.1 Expand mission of Law Schools to explicitly articulate a commitment to Indigenous on First Nations cultural competence. Partnership 1.3.2, 1.3.3 The incorporation of Indigenous cultural competence could be encompassed within the phraseology of ‘ethical conduct’, ‘community service’ and ‘community engagement’.
Michael Black 1.3 Importance of requiring a law school to have a mission and objectives. Requirements paper about mission statements form part of a much larger context reflecting high ideals of service and ethics.
1.3.2 Important that the mission encompasses community engagement.
2. The law course* *This section incorporates and should be read in conjunction with the Threshold Learning Outcomes that may be found at http://www.cald.asn.au/education (Inserted March 2013) 2.1 Educational outcome 2.1.1 The law school has articulated and disseminated the attributes that law students should exhibit on graduation.
NAME COMMENT/FEEDBACK
MLS, with LEAD Re-word to incorporate reference to the TLOs, and possibly the AQF requirements. The hat on TLOs are designed to meet the AQF requirements, but changes in the latter may not be immediately incorporated in the former. We also need allocation of responsibility for updating TLOs when required (perhaps outside the scope of this document).
Working Party a. All Law Schools have committed to a graduate attribute on Indigenous cultural on First Nations competence through Universities Australia.1 Partnership b. The ICCLAP Final Report2 recommends Indigenous cultural competence be a compulsory accreditation requirement.
c. The NSW Department of Justice wrote to all law schools in 2017 inviting them to have a graduate attribute of ‘Aboriginal cultural awareness’, which stopped short of Indigenous cultural competence.
d. The NSW Department of Justice advice regarding the implementation of the Bowraville Report’s recommendations3 is: The Department has also liaised with relevant stakeholders regarding the inclusion of Aboriginal cultural awareness training in legal training and education. At the request of the Department, the Legal Services Council is investigating a new admission requirement, which will make training compulsory for people seeking admission as lawyers. The Department has also requested that all law course providers introduce a dedicated graduate attribute based on Aboriginal cultural awareness. Overall, as a product of this and earlier commitments by law course providers, up to 11 of 14 providers will have a relevant graduate attribute.
ALSSC Meeting The CALD Standards include threshold learning outcomes (‘TLOs’) for LLB and JD – this 2 April 2019 makes it vital for them to continue. These TLOs are not picked up in law school accreditation requirements at any other stage.
2.2 Curriculum design and educational methods 2.2.1 The law school has a curriculum and teaching and learning methods that promote the educational objectives of the law course.
1 Universities Australia, Indigenous Strategy 2017-2020 (2017) 30; termed ‘cultural capabilities’. See also Universities Australia’s Guiding Principles for Developing Indigenous Cultural Competency in Australian Universities (2011) which recommends (Recommendations 1, 2 and 4) that Indigenous knowledges and perspectives be embedded in all university curricula and that Indigenous cultural competence be included as a graduate attribute, with the need for staff training to achieve this goal, 30. 2 Indigenous Cultural Competency for Legal Academics Program, Final Report (2019) 23. 3 Standing Committee on Law and Justice, NSW Parliament, Family Response to the Murders in Bowraville (2014). Includes Recommendation 5 that ‘the NSW Government liaise with the Legal Profession Admission Board of New South Wales, the New South Bar Association and all accredited universities offering legal training in New South Wales to request that Aboriginal cultural awareness training be included as a compulsory element in their legal training and accreditation,’ xiii.
CALD Meeting Paper Page 132 CALD Meeting - 4 Oct 2019 Item B06(1)(a) 2.2.2 The teaching and learning methods encourage students to be active participants in the learning process and to engage with the law in an analytical and critical way. 2.2.3 Appropriate tuition, either face to face or electronically, is provided to enable students to develop the knowledge, understanding and skills set out in Standard 2.3. 2.2.4 The law school endeavours to provide, so far as is practicable, experiential learning opportunities for its students, including, but not limited to, clinical programs, internships, workplace experience, and pro bono community service.
NAME COMMENT/FEEDBACK
CQU (LEAD) 2.2.2 Online legal learning needs to continue to explore innovation in engagement for e.g. through participation blogs and finding ways for online learners to utilise their online learning environment to experience how technology is transforming legal processes and practice.
CQU (LEAD) 2.2.4 Add ‘including virtually through appropriate video-conferencing technology’.
MLS, with LEAD 2.2.1, 2.2.2, 2.2.3 Can stand as they are and still be inclusive of online learning. Innovation hat on could come in under 1.2.1 with a law school seeking/endeavouring to exceed the Standards.
Working Party The Law School curriculum embeds Indigenous cultural competency. on First Nations Partnership
2.3 Curriculum content 2.3.1 The curriculum includes coverage of all of the academic requirements specified for the purposes of admission to practice as a legal practitioner in Australia. 2.3.2 General requirements: The curriculum seeks to develop knowledge, understanding, skills and values: knowledge of the law; understanding of legal principle and of the context within which legal issues arise; skills of research, analysis, reasoning, problem-solving, and communication; and the values of ethical legal practice, professional responsibility, and community service. 2.3.3 In particular, the curriculum, seeks to develop – a. Knowledge and understanding of – the fundamental doctrines, concepts, principles, and values of Australian law the fundamental areas of the substantive law the sources of that law and how it is made and developed, and of the institutions within which that law is administered the theory, philosophy, and role of law, and the dynamics of legal change the broader context within which legal issues arise, including, for example, the political, social, historical, philosophical, and economic context international and comparative perspectives on Australian law and of international developments in the law the principles of ethical conduct and the role and responsibility lawyers, including, for example, their pro bono obligations. b. the intellectual and practical skills needed to research and analyse the law from primary sources, and to apply the findings of such work to the solution of legal problems. c. the ability to communicate these findings, both orally and in writing. d. awareness of and sensitivity to, and, so far as is practicable, internalisation of, the values that underpin the principles of ethical conduct, professional responsibility, and community service.
NAME COMMENT/FEEDBACK
ALSSC Meeting 2.3 Guidance is needed as to how Standard 2.3 is to be read in conjunction with the 2 April 2019 Threshold Learning Outcomes that were incorporated in March 2013.
CQU (LEAD) 2.3.3 (a) ‘...the broader context within which legal issues arise, including, for example, the political, social, historical, philosophical, and economic context’ ADD after ‘for example, the’ ‘technological’.
CQU (LEAD) 2.3.3 (d) After ‘internationalisation’ add ‘indigenisation, and regionalisation’.
MLS, with LEAD 2.3.2, 2.3.3 Agree with ALSSC feedback. This may require a substantial re-writing of 2.3.2 hat on and 2.3.3.
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I also wonder if the Standards ought to specify/address who is responsible for keeping the TLOs up to date given review of the AQF.
Working Party 2.3.3 (a) Suggest two new dot points on: on First Nations Partnership ‘Indigenous cultures, histories and contemporary social realities’
‘Legal pluralism and continuing First Nations laws and or legal systems’
Sourdin Report 2.3.2, 2.3.3 Other Standards which may benefit from further commentary or guidance include Standards 2.3.2, 2.3.3, 3.2.1, 8.1 and 8.2.
Michael Black The ideal of the ethical lawyer with a commitment to community service is another paper powerful notion that finds reflection in the Standards. [Black notes this runs through the provisions for curriculum content, making specific reference to 2.3.2 and 2.3.3 (d). He also notes there are provisions and references elsewhere in the Standards to ethical conduct and the role and responsibility of lawyers.]
2.4 Course duration 2.4.1 The law course requires the completion of the academic equivalent of at least three years, or six semesters, of full-time study of law.
NAME COMMENT/FEEDBACK
CQU (LEAD) After ‘Semesters’ add ‘or Terms’.
MLS, with LEAD Does need to recognise trimesters and terms. The query as to how to best encompass, hat on specifying each (‘semester, trimester or term’ or using an encompassing term or phrase, ‘semester or other period of study’).
2.5 Curriculum dissemination. 2.5.1 The law school publishes a description of the content and structure of the curriculum and duration of the course that guides both staff and students on the level of knowledge and understanding, skills and attributes expected of students at each stage of the course.
NAME COMMENT/FEEDBACK
MLS, with LEAD I wonder if this should also refer to prospective students. There is an emerging focus on hat on fitness to study based on whether or not students meet the inherent requirements to participate in the degree. This could be:
2.5.1 ‘The law school publishes a description of the content and structure of the curriculum and the duration of the course that guides both staff, students and prospective students on the level of knowledge and understanding, skills and attributes expected of students at each stage of the course.’
It may be appropriate to look in the future at incorporating reference to inherent requirements to participate in study or fitness to study - but this may still be a bit premature unless we want to push law schools to address this. MLS is likely doing this over the next 12 months. QUT already has a fitness to study policy. In some cases this is linked to admission, e.g. Flinders with combined law degree and PLT, but addressing fitness to study is a growing issue at multiple institutions.
2.6 Granting of credit and recognition of prior learning 2.6.1 The law school has published policies in regard to the granting of status or credit and the recognition of prior learning. 2.6.2 The policies are consistent with the integrity of the law course and the capacity of the law school to comply with these Standards.
NAME COMMENT/FEEDBACK
MLS (LEAD) This is an aspect where law schools need local responsibility for the implementation of university-wide standards, with local implementation appropriate for a discipline with external professional accreditation requirements.
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2.7 Course management 2.7.1 The law school has the responsibility and capacity to plan, implement and review the curriculum to achieve the objectives of the law course. 2.7.2 In respect of the curriculum, the law school consults widely in the professional and other environments in which graduates will be expected to work.
NAME COMMENT/FEEDBACK
CQU (LEAD) 2.7.2 Add at the end ‘including emerging occupational contexts within the digital economy’.
MLS (LEAD) It may be helpful to recognise emerging workplaces and sources of work (including entrepreneurial); ‘including emerging occupational contexts’ is useful but perhaps not specifying ‘within the digital economy’.
Curriculum review processes are also an aspect where law schools need local responsibility for the implementation of university-wide standards, with local implementation appropriate for a discipline with external professional accreditation requirements.
Working Party The Law School ought to engage community stakeholders such as Indigenous community on First Nations Elders and knowledge-holders and Indigenous community organisations. Partnership
2.8 Postgraduate legal education 2.8.1 So far as the law school offers educational programs in addition to the course or courses that satisfy the academic requirements for admission to legal practice, the requirements of these Standards shall apply, so far as they are applicable and appropriate.
NAME COMMENT/FEEDBACK
Sourdin Report 2.8 ALSSC notes that … postgraduate courses are not out of the scope of the Standards but are out of the scope of certification (certification applies to undergraduate and JD courses). Guidance as to whether Standard 2.8 applies to other courses, for example, course work masters courses and/or PLT courses.
2.9 Pastoral responsibility 2.9.1 The law school’s commitment to sound educational methods and outcomes includes a commitment to, and the adoption of practical measures to promote, student well-being, with particular reference to mental health and awareness of mental health issues.
NAME COMMENT/FEEDBACK
CQU (LEAD) Add ‘and as appropriate for students in online learning contexts’.
MLS (LEAD) As noted by the ALSSC, with centralisation of student support services a common feature in universities seeking to deliver services at scale and with resource savings, aspects of student wellbeing and mental health awareness are often left with central services, that are often under-resourced. This, of course, does not abdicate any responsibility from law schools for educational methods and student outcomes, but the practical measures a law school can implement are also impacted by available resources and these are often centralised when it comes to direct wellbeing services, leaving less direct resources at the law school level. If anything, this aspect needs strengthening to emphasise the importance of the pastoral responsibility at the discipline level. I say discipline here, because mental health issues permeate all or most disciplines, so it is a sector and institutional problem, but the most effective responses are often local, at the school level.
Working Party a) Suggest we include a commitment to cultural safety of Aboriginal and Torres Strait Islander on First Nations students specifically. Partnership b) An articulated commitment to participation, retention and completion for Aboriginal and Torres Strait Islander students.
c) An articulated commitment to inclusive teaching practices.
ALSSC Meeting a) In relation to the Priestley 11, it was specifically noted that the CALD Standards pick up 2 April 2019 the TLOs and include a mental health component, absent from the Priestley 11.
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b) 2.9.1 Suggestion: in addition to ‘commitment to, and the adoption of practical measures to promote’, inclusion of the sentiment, ‘actively drives and monitors’.
c) Note importance of commitment not only to student well-being but also staff well-being (is this adequately captured in Standards 4.3 and 4.3.4?).
d) The ALSSC notes the issue of policy development and implementation is particularly acute in areas such as pastoral care. The allocation of resources for pastoral and leadership functions is often centralised with university-wide administration. There can be a danger in simply relying on central policies. The Higher Education Standards Panel now requires incorporation of a mental health strategy. The ALSSC recommends that a key feature of any clarification of the Standard should emphasise its non-delegable nature, that is, at minimum, local responsibility for the implementation of university-wide standards.
Sourdin Report ALSSC notes that some Standards might benefit from further detail or guidance by commentary, so as to require a law school's response provides precise details as to how the standard is implemented in the law school, and not just provide a reference to the adoption of university policy (for example, Standards 2.9.1 and 4.3.4).
Michael Black 2.9 [Speaks to] “the character” of a law school. Does it care about the welfare of its students? paper Does it care about the welfare of its own staff? These are basic matters of leadership that go to the values of an organisation and, if a teaching organisation, to the values that it implicitly imparts to its students.
2.9.1 [Black emphasises the open-endedness of the word ‘includes’: ‘The law school’s commitment to sound educational methods and outcomes includes a commitment to…’]
3. Assessment of students 3.1 Assessment methods and standards 3.1.1 The law school has documented and published the methods and criteria used for assessment, including the criteria for progression in the course. 3.1.2 The reliability and validity of assessment methods are evaluated and new assessment methods are developed where required. 3.1.3 The law school in its assessments requires all students to achieve an appropriate academic standard.
NAME COMMENT/FEEDBACK
CQU (LEAD) 3.1.2 After ‘new assessment methods’ add ‘which emphasise the embedding of legally relevant and appropriate technology in relation to different subject areas’.
MLS (LEAD) Criteria for progression in the course is typically set at central university level, so this is another case of an aspect where law schools need local responsibility for the implementation of university-wide standards.
Working Party Indigenous cultural competence needs to be part of assessment to support graduate learning on First Nations attributes. Partnership
3.2 Relationship between assessment and learning. 3.2.1 The assessment principles, methods and practices are aligned with the educational objectives of the law course.
NAME COMMENT/FEEDBACK
Sourdin Report Other Standards which may benefit from further commentary or guidance include Standards 2.3.2, 2.3.3, 3.2.1, 8.1 and 8.2.
Reid Mortensen I wonder how much more detail could be specified for something like 3.2.1, and that, for (USQ, CALD example, standard mapping processes may be sufficient without specifying it. This is Working Party) already more onerous than, for example, we would be required to give in approval processes for the LPAB in Queensland.
CALD Meeting Paper Page 136 CALD Meeting - 4 Oct 2019 Item B06(1)(a) 4. Academic staff 4.1 Staff numbers, profile and duties 4.1.1 The law school has sufficient members of academic staff to meet the needs of the law course and otherwise to fulfil its mission and the requirements of these Standards. 4.1.2 The profile of the law school’s academic staff reflects an appropriate range of experienced members. 4.1.3 The profile of the law school’s academic staff reflects an appropriate number of full-time staff or an appropriate mix of full-time staff and those with other arrangements. 4.1.4 The teaching load expected of staff is consistent with the law school being able to achieve its aspirations in regard to research and community engagement.
NAME COMMENT/FEEDBACK
LEAD Meeting 3 4.1.2, 4.1.3 Query ‘appropriate’. What criteria inform this? May 19 4.1.3 Query about sessional staffing, for example, the relationship with scholarships and grants, and their reflective practice as educators. Note also there is a need for balance between permanent staff and sessional staff.
4 Need for elaboration in general.
Is there a way for Section 4 to give profile to teaching and learning as important activities?
Working Party Law schools need to prioritise Indigenous employment strategies and promote and facilitate on First Nations the advancement of Indigenous law academics. Partnership
Sourdin Report 4.1 Some Standards were found to be broad or vague and the ALSSC in these cases adopted a broad approach for the interim certification process (for example, Standards 4.1 and 4.2).
ALSSC Meeting Note overlap between Standards and TEQSA requirements4 in relation to staffing – 2 April 2019 which was initially excluded from the Standards because of the TEQSA framework.
Tania Sourdin Suggestion to include a specific requirement for faculty composition, for example, a minimum core faculty of 15 FTE. Or, a ratio of 7:3 for casual: continuing roles.
4.2 Staff qualifications 4.2.1 Members of the law school’s academic staff have qualifications and experience appropriate to fulfil the mission of the law school and to meet the requirements of these Standards.
NAME COMMENT/FEEDBACK
Working Party Law Schools need to recognise Indigenous knowledges. on First Nations Partnership
Reid Mortensen 4.2 I think 4.2 is already covered by TEQSA requirements and, as it is externally regulated, (USQ, CALD those regulations could be considered in any redraft. There is an option that, because Working Party) something is externally regulated there may be no need for it in the CALD Standards, but I’d be more inclined to incorporate these to ensure that the Standards have clarity.
Sourdin Report 4.2 Some Standards were found to be broad or vague and the ALSSC in these cases adopted a broad approach for the interim certification process (for example, Standards 4.1 and 4.2).
4.3 Staff appointment, promotion and development 4.3.1 The law school has published appointment and promotion policies that recognise and reward meritorious achievement. 4.3.2 The law school’s employment practices are non-discriminatory. 4.3.3 Members of academic staff have the opportunity to engage in appropriate staff development. 4.3.4 The law school is committed to and promotes the well-being of its staff.
NAME COMMENT/FEEDBACK
4 TEQSA Standard 3.2.
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MLS (LEAD) This is an aspect where law schools need local responsibility for the implementation of university-wide standards.
Working Party Law schools should have compulsory training on Indigenous cultural competence and on First Nations inclusive teaching at induction and periodically. Partnership
Sourdin Report 4.3.4 ALSSC notes that some Standards might benefit from further detail or guidance by commentary, so as to require a law school's response provides precise details as to how the standard is implemented in the law school, and not just provide a reference to the adoption of university policy (for example, Standards 2.9.1 and 4.3.4).
Michael Black 4, 4.3.4 [Part 4 of the Standards addresses] “the character” of a law school. Does it care paper about the welfare of its students? Does it care about the welfare of its own staff? These are basic matters of leadership that go to the values of an organisation and, if a teaching organisation, to the values that it implicitly imparts to its students. [Reference also made to 2.9].
ALSSC Meeting 4.3.4 Is the importance of the commitment not only to staff well-being adequately captured 2 April 2019 here?
4.4 Academic freedom 4.4.1 The law school has published policies, or is subject to its university’s published policies, in regard to the maintenance of academic freedom.
NAME COMMENT/FEEDBACK
4.5 Employment conditions 4.5.1 The law school has published policies, or is subject to its university’s published policies, in regard to fair and reasonable conditions of employment.
NAME COMMENT/FEEDBACK
Working Party Law Schools have policies to promote and facilitate the appointment and advancement of on First Nations Indigenous law academics. Partnership
4.6 Part time and casual teaching staff 4.6.1 The law school has defined the role and responsibilities of all staff, including part time and casual teachers who contribute to the delivery of the law course, and the responsibilities of the law school to those teachers.
NAME COMMENT/FEEDBACK
CQU (LEAD) Add ‘4.6.2 The Law School will undertake and dedicate appropriate resources to developing appropriate scholarship skills and opportunities for casual law academics that is consistent with TEQSA principles and requirements.’
Working Party Casual staff need also to undertake Indigenous cultural competence training and inclusive on First Nations teaching training. Partnership
5. The law library or law collection In this section the term “law library” also refers to the “law collection” where there is not a distinct law library but there is a distinctive and identifiable law collection in the university’s library. 5.1 General provisions Recognising that the law library has a distinctive role in the university, and is appropriately described, to underline the parallel with the essential equipment of the scientist, as “the lawyer’s laboratory” – 5.1.1 The law library is able to be an active and responsive force in the educational life of the law school, effectively supporting the school’s teaching, research and service programs.
CALD Meeting Paper Page 138 CALD Meeting - 4 Oct 2019 Item B06(1)(a) 5.1.2 The law library has sufficient financial resources to support the law school’s teaching, research and service programs. 5.1.3 The law library uses up-to-date information technology. 5.1.4 Adequate library and information technology provision is available to all students studying in the law course, whether full-time, part-time, face to face, on line, or by distance learning, as appropriate.
NAME COMMENT/FEEDBACK
ALSSC Meeting It may be appropriate to seek assistance/advice from qualified law librarians. The Committee 2 April 2019 noted that law librarians were consulted during the development of Threshold Learning Outcomes.
The possibility was raised that, in the era of digital technology, law librarians may no longer be imperative in order to students to achieve graduate attributes.
Prof Sourdin emphasised the importance of clarifying Standard 5, especially with the increasing pressure on university libraries to reduce subscription fees etc.
The ALSSC considers resolution of this issue is a matter for CALD.
MLS (LEAD) The role of the law library and law librarian is just as central as ever, particularly with the pace of change in scholarly services in the digital age and moves towards more open source repositories. I would still encourage engagement with law librarians if possible.
Charles Sturt 5 In regard to ‘distinctive and identifiable law collection in the university’s library’ [italicised University prefacing statement], is it sufficient for the collection to be identified in the Library’s discovery Library tool or curate relevant resources into a Libguide, or does it also need to be identified in the physical location of the collection? With the discovery tool and so many resources online, is the physical location still the best way to present a unified collection?
Deakin 5.1 Please do not alter section 5.1. It comprehensively covers the current standard and University requirements of a law library. I have referred to “the lawyer’s laboratory” in a recent journal Library article Michelle Bendall, ‘Law Librarian as Scholarly Colleague’, (2019) 27(2) Australian Law Librarian 65-69.
Griffith These standards are very important and do have a big impact on libraries. Parts of the University Library section (5) needs a major refresh to make the standards more broadly applicable. Library 5 Many universities do not have a physical Law Library and the primary assumption with these standards is that they do. The term “law collection” cannot be used interchangeably with the term “law library” since the “law library” is represented primarily as a physical entity throughout most of section 5, requiring separate resourcing in terms of staffing (5.2.2) and space (5.3.2).
The “law collection” by today’s definition, is largely an online collection requiring a different conceptualisation of resourcing need. For those universities who do not have a separate law library, standards around the maintenance and resourcing of their law collection need to be considered and described separately.
5.1 The “lawyer’s laboratory” no longer requires to be a physical Law Library. While there may be a need for a suitable space for students to study this does no longer needs to be a space.
5.1.1, 5.1.2, 5.1.3 Suggested wording – If the word ‘law’ was dropped from the front of ‘library’ in 5.1.1 and 5.1.2 and 5.1.3 this high level section would be applicable to all libraries that support law regardless if they had a physical law library or not.
5 Change the high level section title to “The Library and the Law Collection” would also further clarify.
5.1 Delete the bold section: ‘Recognising that the law library has a distinctive role in the university, and is appropriately described, to underline the parallel with the essential equipment of the scientist, as “the lawyer’s laboratory”’.
Monash 5.1.1 Suggest adding ‘contributing to’ to acknowledge the more active role played by law University library staff: Library i.e. ‘The law library is able to be an active and responsive force in the educational life of the law school, effectively contributing to and supporting the school’s teaching, research and service programs.’
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5.2 Administration of the law library 5.2.1 The law school is able to participate effectively in the growth and development of the law library and the use of its resources. 5.2.2 The law library has a person who is appropriately qualified to manage a law library and whose primary responsibility is the management of the law library. 5.2.3 The law library has competent and appropriately qualified staff, sufficient in number to provide appropriate library and informational resource services and support for the law school’s programs.
NAME COMMENT/FEEDBACK
University of 5.2.2 suggestion: ‘The law library has a person who is appropriately qualified and skilled to Wollongong effectively engage with the law school on management of the law library.’ Library The above change is in recognition that universities recognise the value of skilled librarians to support the law school and its collections, and the flexibility libraries take in ensuring proper engagement with the law school. Appropriate engagement is key to doing this well. Not sure how I feel about the phrase “has a person”.
Deakin 5.2 Please do not delete any sub-sections in section 5.2. It is essential that universities University employ suitably qualified staff to manage the law library and have subject matter expertise Library to support the law schools’ programs.
I think it should be amended to include that a librarian should have a clearly identifiable position title that recognizes the librarian’s subject-matter expertise. I have noticed in some universities that there is no longer a position of “law librarian” where there is a Law School.
University of 5.2.2 In my honest opinion, it is important that the library manager is primarily responsible Melbourne for the law library. In addition, it is also important that the person who is appointed to the role Library has experience in law libraries and the law field. The person should have specific library qualifications to manage the library.
University of 5.2.3 Library staff are not only involved in administration of the library but also in the delivery Newcastle of lesson to law students, for example about legal research. At our university these are Library required units in a law student’s program. It may be useful to capture this in the Standards.
Griffith 5.2 The titling of this section limits the applicability of some aspects potentially for those University Universities that do not have a physical library. It would be much better to combine this Library section with section 5.3 with perhaps a more general heading of ‘Library, Services Facilities and Administration’. If there are specific requirements for universities that do have a physical Law Library then this would be much easier to include. I have included below a proposed section that could combine 5.2 and 5.3 and be more applicable to all libraries / university situations. [See 5.X below].
5.2.2 There is no need to have a staff member whose sole responsibility is the management of the law library particularly where the “law library” is simply a distinctive and identifiable law collection – which in some cases is also largely an online collection (possibly solved by suggestion of combining sections).
5.2, 5.2.3 The use of the term “law library” throughout sections 5.2 and 5.3 is not appropriate where there is a library with a law collection. The term “library” would be more appropriate for those institutions without a distinct physical law library. This is also relevant for 5.2.3 and 5.3.1.
5.3 Law library services and facilities 5.3.1 The law library provides an appropriate range and depth of reference, instructional, bibliographic and other services to meet the needs of the law school’s teaching, research and service programs. 5.3.2 The physical facilities for the law library are sufficient in size, location, and design, in relation to the law school’s programs and enrolment, to accommodate the law school’s students and teaching staff and the law library’s services, collections, staff, operations, and equipment.
NAME COMMENT/FEEDBACK
University of 5.3.2 Suggestion: ‘The physical facilities of the law library are appropriate in location, size Wollongong and design in relation to the law school’s programs and enrolments, to accommodate Library physical collections, and enable ease of access to resources for law school students and
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staff.’
The above change is in recognition that law collections are discrete collections and may be adjacent to other areas, and ease of use for law clients in accessing these collections for research, teaching and learning should be the priority.
Deakin 5.3 Section 5.3 is still a good standard and should remain unchanged. University Library
Griffith 5.3 As with 5.2 this is restrictive and not applicable/difficult to work with for libraries and University universities that do not have or do not support separate physical law libraries. See proposed Library change below [5.X] for a combined section.
Suggested replacement for 5.2 and 5.3 is 5.X:
‘5.X Library services, facilities and administration 5.X.X The law school is able to participate and partner effectively with the library 5.X.X The library has competent and appropriately qualified staff, sufficient in number to provide appropriate library and informational resource services and support for the law school’s programs 5.X.X The library provides an appropriate range and depth of reference, instructional, bibliographic and other services to meet the needs of the law school’s teaching, research and service programs.
‘Where a separate Law Library exists (although this is probably not required as it is quite operational in detail): 5.X.X The law library has a person who is appropriately qualified to manage a law library 5.X.X The physical facilities for the law library are sufficient in size, location, and design, in relation to the law school’s programs and enrolment, to accommodate the law school’s students and teaching staff and the law library’s services, collections, staff, operations, and equipment.’
Monash 5.3.1 This terminology is out-dated. Suggest: University Library ‘The law library provides an appropriate range and depth of legal research skills development, collection management, and other services to meet the needs of the law school’s teaching, research and service programs.’
5.4 The collection 5.4.1 The collection of the law library is, as a minimum – a. all public general Acts of the Commonwealth of Australia and of the jurisdiction in which the law school is located, in official and reprint form b. all statutory instruments and other secondary legislation of the Commonwealth of Australia and the jurisdiction in which the law school is located, in original and reprint form, relevant to the subjects taught c. all reported decisions of the superior courts of Australia and of the jurisdiction in which the law school is located that are relevant to the subjects taught, together with such decisions of other courts as are necessary to the understanding of those subjects d. parliamentary materials of the Commonwealth of Australia and of the jurisdiction in which the law school is located, including Bills, parliamentary papers, and reports of parliamentary proceedings, appropriate to the subjects taught e. such other official publications of the Commonwealth of Australia and the government of the jurisdiction in which the law school is located as are necessary to support the teaching and research objectives of the law school f. where teaching is provided in the law of any legal system other than that of Australia and of the jurisdiction in which the law school is located, primary legal materials and official publications from that legal system, sufficient to support the objectives of such teaching g. such secondary works (including textbooks, monographs and periodicals) relating to the law of the Commonwealth of Australia and of the jurisdiction in which the law school is located as are necessary to support the teaching and research objectives of the law school h. primary and secondary comparative material from other legal systems which are the subject of study in the law school and are adequate to support the school’s teaching and research programs i. those tools, such as general law encyclopedias, citators, periodical indexes, and current awareness services, which are necessary for the identification and updating of primary and secondary legal materials for the legal systems in which teaching and research are undertaken. 5.4.2 The collection is accessible in printed form or electronically, or both.
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NAME COMMENT/FEEDBACK
Working Party Oral artefacts require inclusion and recognition within Law Library Collections. on First Nations Partnership
University of 5.4 My main concern is the continued focus on the law library collection as a print collection Newcastle e.g. in terms of 5.4.1(a) – it isn’t possible to collect current Acts in print anymore and we Library have not done so for at least a decade, and certainly not in their reprint form. There is a need to shift focus to demonstrate the fact that libraries rely largely on electronic resources in the legal field today.
There are some Americanisms in the terminology used (e.g. 5.4.1(g) ‘periodical’) which could be updated to reflect the Australian context.
5.4.2 Suggestion to include 5.4.2 as a prefacing comment to the whole Standard 5.4 section.
5.4 Possible redraft of 5.4 The Collection:
‘The collection includes resources for the Commonwealth of Australia and of the jurisdiction in which the law school is located and is accessible in print and/or electronic format: Acts, statutory instruments and other secondary legislation in original and consolidated format. Authorised law reports of the Superior Courts of Australia and of the jurisdiction in which the law school is located. Additional law reports relevant to the subjects taught together with decisions of other courts as necessary. Extrinsic materials including Bills, Hansard, Parliamentary Papers series, Law Reform Commission Reports and other extrinsic material appropriate to the subjects taught. Primary and secondary materials for any other legal system other than Australia sufficient to support the teaching and research objectives of the law school. Secondary materials (textbooks, monographs, and journals) sufficient to support the teaching and research objectives of the law school. Legal research tools including law encyclopaedias, legal dictionaries, citators, journal databases and alerting tools necessary for the identification and updating of primary and secondary materials to support the teaching and research objectives of the law school. Access to practical content as appropriate for any work integrated learning elements offered by the law school.’
Deakin 5.4 Keep section 5.4 complete in its entirety. University Library
Griffith 5.4.2 I would suggest that to be forward thinking and with many libraries and corporate University sectors going digital that there should be an emphasis on electronic collections. This is how Library students access information 24/7 and enable greater depth of research and study. I would change this to be: ‘The collection is accessible electronically or in print, or both.’
University of 5.4.2 Where possible, resources should be accessible by the public. Melbourne Library
Monash 5.4.1 This is out-dated as many jurisdictions no longer publish reprints. Suggest removing University ‘reprint form’ (as official form is via Government sites in numbered and consolidated form) Library i.e.
a. ‘all public general Acts of the Commonwealth of Australia and of the jurisdiction in which the law school is located, in official form. b. ‘all statutory instruments and other secondary legislation of the Commonwealth of Australia and the jurisdiction in which the law school is located, in official form, relevant to the subjects taught.’
5.4.1 Some provision should be made for the interdisciplinary nature of law and, hence the reliance on sources and databases in other disciplines provided by the Library:
e.g. ‘5.4.1(j) access to those sources and tools of an interdisciplinary nature necessary to support the teaching and research objectives of the law school.’
5.4.2 As the majority of these resources are in electronic form, suggest adding ‘discoverable’:
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i.e. ‘5.4.2 The collection is discoverable and accessible in printed form or electronically, or both.’
6. Resources and infrastructure 6.1 Generally 6.1.1 The law school has adequate resources and infrastructure to enable it to fulfil its mission.
NAME COMMENT/FEEDBACK
Working Party Indigenous community partnerships are as intrinsic resources alongside physical resources on First Nations like a moot court. Partnership
Reid Mortensen 6.1 Agreed on 6.1. It has a greater impact on online providers, but I think even exclusive on- (USQ and CALD campus law schools are confronting the impact that communication technologies have on working party) expectations on face-to-face contact.
6.2 Physical facilities 6.2.1 The law school has sufficient physical facilities, for both staff and students, to ensure that its educational, research and outreach objectives can be achieved. 6.2.2 The law school has sufficient facilities to enable effective study and research by students and staff. 6.2.3 The learning environment for students is reviewed and updated regularly to reflect developments in educational practices.
NAME COMMENT/FEEDBACK
CQU (LEAD) In an entirely online and digitally based Law School and law program, students and Faculty interact and function in a virtual environment. In such programs there is no one dedicated physical location which is experienced either by students or Faculty. This reality for online law programs should be recognised.
MLS, with LEAD Agreed with CQU. This could potentially be via 6.2.1 ‘sufficient physical and/or virtual hat on facilities…’
6.3 Information technology 6.3.1 The law school has sufficient information and communication technology facilities, for both staff and students, to ensure the law course can be delivered adequately, and to support its educational, research and community outreach programs.
NAME COMMENT/FEEDBACK
ALSSC Meeting The ALSSC highlighted the inclusion of this issue within the already existing Higher 2 April 2019 Education Standards Framework. In the context of increasing moves toward fully online teaching environments, the ALSSC noted the importance of clarifying matters surrounding the efficacy of legal education which lacks interaction with students. This matter is an issue for CALD as well as for the ALSSC – is it possible for a fully online course to meet the standard? It was noted that CQ University, which is wholly online, was able to meet the Standard during their certification; however, that it is important for CALD to clarify this area.
CQU (LEAD) Online law programs such as at CQU use a range of technology to continue to achieve and maintain this standard. In particular, Moodle based websites, Zoom video-conferencing, and Google education suite are deployed in meeting this standard.
Sourdin Report 6.3.1 ALSSC notes that Standard 6.3.1 may require further consideration given the rapid developments in the field.
7. Course and subject evaluation 7.1 The law school has course and subject evaluation procedures that regularly monitor the curriculum, quality of teaching and student progress, and identify and address concerns.
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NAME COMMENT/FEEDBACK
CQU (LEAD) Evaluation should be holistic where appropriate. Curriculum and subject materials should be reviewed and evaluated internally as well as externally in a suitable way both as to content as well as suitable and relevant assessment strategies which are directed to building a variety of skills for a changing legal landscape.
MLS (LEAD) This is another aspect where law schools have local responsibility for the implementation of university-wide procedures.
Working Party a) Governance mechanisms should exist to certify the cultural appropriateness of Indigenous on First Nations content. Partnership b) Perhaps this could be ‘monitor’ the cultural appropriateness of Indigenous content.
7.2 Measures of, and information about, graduate attributes are used as feedback to course and subject development.
NAME COMMENT/FEEDBACK
MLS (LEAD) 7.2 Is a word missing in 7.2: ‘to guide course and subject development’?
ALSSC Meeting 7.2 In relation to Standard 7.2, the ALSSC suggests it is the use of the phrase ‘graduate 2 April 2019 attributes’ which may be causing the ambiguity, as the meaning attached to this term has been used in various ways in higher education over the past decade. It is suggested to phrase the Standard in such a way as to ensure that law schools are monitoring their own graduate attributes: e.g. ‘Are you monitoring your own graduate attributes?’
Sourdin Report 7.2. ALSSC notes that some Standards may require revision to remove ambiguity, for example, Standard 7.2.
Michael Black 7.2 There is some ambiguity in the Standard, which will need to be resolved, but on what paper would seem the better view of its requirements, law schools are obliged to seek feedback not only from their graduates but also from the various fields in which their graduates are working. Active feedback of this nature is surely important. If, in the rapidly changing world of legal practice, there are perceived inadequacies the sooner they are identified by law schools and measures taken to address them, the better.
ALSSC Report 7.2 Some Standards may need revision to remove ambiguity. For example, Standard 7.2 can to CALD 6 March be read in two different ways, and was in fact so read [during the interim certification process]. 2017 The information about “graduate attributes” was seen by some as referring to workplace attributes and by others as referring to academic attributes without reference the workplace. In these and other instances, where two sensible interpretations or approaches were reasonably open and consistent with the overall aims of the Standards, the Committee resolved to accept either.
8. The nexus between teaching and research 8.1 The law school fosters the relationship between research and teaching.
NAME COMMENT/FEEDBACK
Working Party Indigenous research narratives should be fostered. on First Nations Partnership
Sourdin Report 8.1 Other Standards which may benefit from further commentary or guidance include Standards 2.3.2, 2.3.3, 3.2.1, 8.1 and 8.2.
8.2 The interaction between research and teaching is reflected in the curriculum. This interaction influences teaching, and encourages and prepares students to engage in legal research and the development of the law.
NAME COMMENT/FEEDBACK
Sourdin Report 8.2 Other Standards which may benefit from further commentary or guidance include
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Standards 2.3.2, 2.3.3, 3.2.1, 8.1 and 8.2.
9. Governance and administration 9.1 The institution in which the law school is situated 9.1.1 The law school is part of a university or equivalent institution which has power to award degrees.
NAME COMMENT/FEEDBACK
Working Party Indigenous people should be involved with Law School decision-making as per Indigenous on First Nations cultural competence. Partnership
9.2 Governance 9.2.1 The law school’s governance structures and functions are defined, including the school’s relationships within the university.
NAME COMMENT/FEEDBACK
CQU (LEAD) Where the Law School is situated within a larger University administrative context (which is becoming increasingly common) for e.g. a School of Business and Law, the governance between the Law School and that wider context will need to be acknowledged and suitable procedures put in place to ensure that the Law School can adhere to these standards without unnecessary interference.
9.3 Academic leadership 9.3.1 Ideally, the title of the academic head of the law school is ‘dean’. 9.3.2 The responsibilities of the academic head of the law school are clearly stated. 9.3.3 The academic head of the law school has the authority and support needed to discharge the responsibilities of the position and those necessitated by these Standards.
NAME COMMENT/FEEDBACK
Working Party Law Schools ought to support the progression of Indigenous leadership. on First Nations Partnership
9.4 Budget and resource allocation 9.4.1 The law school has a dedicated operational budget and the primary responsibility for managing it.
NAME COMMENT/FEEDBACK
ALSSC Meeting Question about ‘primary responsibility’, noting for example that in some law schools the Dean 2 April 2019 does not have the ability to hire staff.
9.4.2 The law school has sufficient autonomy to direct resources in order to achieve its mission.
NAME COMMENT/FEEDBACK
CQU (LEAD) 9.4.2 Same comment as for 9.2.1:
Where the Law School is situated within a larger University administrative context (which is becoming increasingly common) for e.g. a School of Business and Law, the governance between the Law School and that wider context will need to be acknowledged and suitable procedures put in place to ensure that the Law School can adhere to these standards without unnecessary interference.
9.5 Administrative staff and management 9.5.1 The law school has appropriate administrative staff to support the implementation of the school’s educational programs and other activities, and to manage and deploy its resources.
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NAME COMMENT/FEEDBACK
9.6 Interaction with the legal profession and the wider community 9.6.1 The law school seeks to engage with the legal profession and the legal sector generally. 9.6.2 The law school seeks to engage with the wider community by encouraging its staff and students to use their knowledge and skills for the benefit of the community in outreach programs, including, for example, and so far as is practicable, clinical programs, law reform, public education, and other forms of pro bono community service.
NAME COMMENT/FEEDBACK
CQU (LEAD) 9.6.2 Add ‘including through the use of online technology to facilitate opportunities for all stakeholders throughout both metropolitan and regional Australia’.
Working Party a) Law schools need to establish community partnerships with Indigenous stakeholders. on First Nations Partnership b) Law schools need to recognise the diversity of First Nations peoples’ knowledge, legal systems and language.
Michael Black 9.6.1 Connections between law schools, the legal profession and the wider community are paper important. The Standards explicitly make these interactions a requirement e.g. 9.6.1, 2.7.2, 7.2, 2.2.4. If conscientiously undertaken by the many Australian law schools, with reports back to CALD, the application of [these particular standards] ought to, among other things, beneficially reveal the newly-emerging fields in which lawyers need to have knowledge and skills. Obviously, these new fields will not necessarily be covered by the present mandatory requirements for admission to practise. [Paraphrased].
9.6.2 The ideal of the ethical lawyer with a commitment to community service is another powerful notion that finds reflection in the Standards.
10. Continuous renewal and improvement 10.1 The law school has procedures for regular reviews and updating of its structure, functions, policies and practices, to rectify deficiencies and to meet changing needs.
NAME COMMENT/FEEDBACK
10.2 The law school’s teaching, research and outreach programs are responsive to legal and social change. NAME COMMENT/FEEDBACK
CQU (LEAD) After ‘social’ add ‘technological’.
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FORMALLY ADOPTED AT CALD MEETING 2009/3, CANBERRA, 17 NOVEMBER 2009
Council of Australian Law Deans
The CALD Standards for Australian Law Schools
As Adopted 17 November 2009 and Amended to March 2013
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Part A: The Standards
Definitions
Law course The course or courses of study leading to a degree or degrees recognised by the law admitting authority in the jurisdiction as providing the academic requirements for the purposes of admission to practice as a legal practitioner. [In some institutions this would be known as ‘law program’ and the term ‘course’ would refer to individual
units or subjects within the program.] Commented [MOU1]: Revise square brackets?
Law school Any university unit responsible for offering a Commented [MOU2]: Repetition of ‘unit’ with different meaning to above. degree in law, completion of which is recognised by at least one Australian admitting authority as
satisfying most or all of that authority’s academic Commented [MOU3]: Revise? requirements for admission to legal practice.
1. Fundamental issues, mission and objectives
1.1 Academic autonomy
1.1.1 The law school has the responsibility and capacity to design, develop and deliver a law course which meets these Standards.
1.2 Aspiration in regard to these Standards
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1.2.1 The law school seeks to exceed the requirements of these Commented [MOU4]: or ‘undertakes to make best endeavours’ Standards.
1.3 Statement of mission and objectives
1.3.1 The law school has defined its mission and the objectives of the law course, and has made them known to students and other stakeholders.
1.3.2 The law school’s mission encompasses teaching, research and community engagement.
1.3.3 The law school’s mission encompasses a commitment to the rule of law, and the promotion of the highest standards of ethical conduct, professional responsibility, and community service and inclusion with particular attention to facilitating legal education to students in regional Australia and through diverse digital learning.
1.3.31.3.4 The law school’s mission encompasses a commitment to Indigenous cultural competence. 2. The law course*
*This section incorporates and should be read in conjunction with the Threshold Learning Outcomes that may be found at http://www.cald.asn.au/education (Inserted March 2013)
2.1 Educational outcome
2.1.1 The law school has articulated and disseminated the attributes that law students should exhibit on graduation, including an attribute of Indigenous cultural competence.
2.2 Curriculum design and educational methods
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2.2.1 The law school has a curriculum and teaching and learning methods that promote the educational objectives of the law course.
2.2.2 The teaching and learning methods encourage students to be active participants in the learning process and to engage with the law in an analytical and critical way.
2.2.3 Appropriate tuition, either face to face or electronically, is Commented [MOU5]: or ‘virtually’ or ‘online’ or ‘via technologies’ provided to enable students to develop the knowledge, Commented [MOU6]: passive voice; consider revising understanding and skills set out in Standard 2.3.
2.2.4 The law school endeavours to provide, so far as is practicable, experiential learning opportunities for its students both face to face and/or virtually, including, but not limited to, clinical programs, internships, workplace experience, and pro bono community service.
2.2.42.2.5 The law school curriculum and its educational methods embed Indigenous cultural competency.
2.3 Curriculum content
2.3.1 The curriculum includes coverage of all of the academic requirements specified for the purposes of admission to practice as a legal practitioner in Australia.
2.3.2 General requirements:In general, tThe curriculum seeks to develop knowledge, understanding, skills and values: knowledge of the law; understanding of legal principle and of the context within which legal issues arise; skills of research, analysis, reasoning, problem-solving, and communication; and the values of ethical legal practice, professional responsibility, and community service.
2.3.3 In particular, the curriculum, seeks to develop –
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a. knowledge and understanding of – > the fundamental doctrines, concepts, principles, and values of Australian law > the fundamental areas of the substantive law > the sources of that law and how it is made and developed, and of the institutions within which that law is administered > the theory, philosophy, and role of law, and the dynamics of legal change > the broader context within which legal issues arise, including, for example, technological, political, social, historical, philosophical, and economic context > international and comparative perspectives on Australian law and of international developments in
the law Commented [MOU7]: and legal pluralism > the principles of ethical conduct and the role and responsibility of lawyers, including, for example, their pro bono obligations. > Indigenous cultures, legal systems, histories, and contemporary social realities b. the intellectual and practical skills needed to research and analyse the law from primary sources, and to apply the findings of such work to the solution of legal problems. c. the ability to communicate these findings, both orally and in writing.
d. awareness of and sensitivity to, and, so far as is practicable, internalisation of, the values that underpin the principles of ethical conduct, professional responsibility,
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and community service.
2.4 Course duration
2.4.1 The law course requires the completion of the academic
equivalent of at least three years, or six semesters, of full-time Commented [MOU8]: ‘or six semesters, X trimesters or Y terms’…’. study of law. Or ‘The law course requires the completion of the academic equivalent of at least three years of full-time 2.5 Curriculum dissemination study of law, whether this be via semesters, terms, trimesters, or another period of study.’ 2.5.1 The law school publishes a description of the content and structure of the curriculum and duration of the course that guides both staff, and students, and prospective students on the level of knowledge and understanding, skills and attributes expected of students at each stage of the course.
2.6 Granting of credit and recognition of prior learning
2.6.1 The law school has published policies in regard to the granting of status or credit and the recognition of prior learning.
2.6.2 The policies are consistent with the integrity of the law course and the capacity of the law school to comply with these Standards.
2.7 Course management
2.7.1 The law school has the responsibility and capacity to plan, implement and review the curriculum to achieve the objectives of the law course.
2.7.2 In respect of the curriculum, the law school consults widely in the professional and other environments in which graduates will be expected to work, including emerging occupational contexts.
2.7.22.7.3 In its design and implementation of the law course, the law school engages with other stakeholders including
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among the Indigenous community.
2.8 Postgraduate legal education
2.8.1 So far as the law school offers educational programs in Commented [MOU9]: Specify which programs are subject to 2.8? addition to the course or courses that satisfy the academic requirements for admission to legal practice, the requirements of these Standards shall apply, so far as they are applicable and appropriate.
2.9 Pastoral responsibility
2.9.1 The law school’s commitment to sound educational methods and outcomes includes a commitment to, and the adoption of practical measures to promote, student well-being, with particular reference to mental health and awareness of mental health issues.
2.9.2 The law school articulates a commitment to inclusive teaching practices, specifically with a view to ensuring the cultural safety of Aboriginal and Torres Strait Islander students.
3. Assessment of students
3.1 Assessment methods and standards
3.1.1 The law school has documented and published the methods and criteria used for assessment, including the criteria for progression in the course.
3.1.2 The reliability and validity of assessment methods are evaluated and new assessment methods which emphasise the embedding of legally relevant and appropriate technology in relation to different subject areas are developed where
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required.
3.1.3 The law school in its assessments requires all students to achieve an appropriate academic standard.
3.1.33.1.4 Assessment tasks are designed with graduate learning attributes in mind, including aiming where possible to develop Indigenous cultural competence.
3.2 Relationship between assessment and learning
3.2.1 The assessment principles, methods and practices are aligned with the educational objectives of the law course. 4. Academic staff
4.1 Staff numbers, profile and duties
4.1.1 The law school has sufficient members of academic staff to meet the needs of the law course and otherwise to fulfil its mission and the requirements of these Standards.
4.1.2 The profile of the law school’s academic staff reflects an
appropriate range of experienced members. Commented [MOU10]: Distinction from 4.2.1? 4.1.3 The profile of the law school’s academic staff reflects an appropriate number of full-time staff or an appropriate mix of
full-time staff and those with other arrangements. Commented [MOU11]: Or ‘The law school’s staff is made up of a mix of permanent and 4.1.4 The teaching load expected of staff is consistent with the law sessional/continuing and casual academics, appropriate school being able to achieve its aspirations in regard to to fulfilling its mission and objectives.’ Or ‘The law school should have a sufficient number of research and community engagement. core faculty, comprising a minimum of [X FTE] permanent staff, in order to enable it to fulfil its mission 4.1.44.1.5 The law school promotes Indigenous employment and objectives.’ strategies which facilitate the recruitment and retention of Commented [MOU12]: Revise? Indigenous academic staff.
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4.2 Staff qualifications
4.2.1 Members of the law school’s academic staff have qualifications and experience appropriate to fulfil the mission of the law school and to meet the requirements of these Standards.
4.2.14.2.2 The law school welcomes diversity and recognises the wealth of knowledge and skills that Indigenous academic staff bring to the workplace.
4.3 Staff appointment, promotion and development
4.3.1 The law school has published appointment and promotion policies that recognise and reward meritorious achievement.
4.3.2 The law school’s employment practices are non-discriminatory.
4.3.3 Members of academic staff receive compulsory training on Indigenous cultural competence and inclusive teaching practices, as well as have the opportunity to engage in other appropriate staff development.
4.3.4 The law school is committed to and promotes the well-being of its staff.
4.3.44.3.5 The law school promotes Indigenous employment strategies which facilitate the recruitment and retention of Indigenous academic staff.
4.4 Academic freedom
4.4.1 The law school has published policies, or is subject to its university’s published policies, in regard to the maintenance of academic freedom.
4.5 Employment conditions
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4.5.1 The law school has published policies, or is subject to its university’s published policies, in regard to fair and reasonable conditions of employment.
4.5.2 The law school has published policies, or is subject to its university’s published policies, that promote and facilitate the appointment and advancement of Indigenous
academic staff.
4.6 Part time and casual teaching staff
4.6.1 The law school has defined the role and responsibilities of all staff, including part time and casual teachers who contribute to the delivery of the law course, and the responsibilities of the law school to those teachers.
4.6.2 Part time and casual academic staff receive compulsory training on Indigenous cultural competence and inclusive teaching practices.
4.6.3 The law school will undertake to develop the skills of and create opportunities for part time and casual academic staff, consistent with TEQSA requirements.
5. The law library or law collection
In this section the term “law library” also refers to the “law collection” where there is not a distinct law library but there is a distinctive and identifiable law collection, whether physically or online, in the university’s library.
5.1 General provisions
Recognising that the law library has a distinctive role in the university, and is appropriately described, to underline the parallel
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with the essential equipment of the scientist, as “the lawyer’s laboratory” –
5.1.1 The law library is able to be an active and responsive force in the educational life of the law school, effectively contributing to and supporting the school’s teaching, research and service programs.
5.1.2 The law library has sufficient financial resources to support the law school’s teaching, research and service programs.
5.1.3 The law library uses up-to-date information technology.
5.1.4 Adequate library and information technology provision is available to all students studying in the law course, whether full-time, part- time, face to face, online, or by distance learning, as appropriate.
5.2 Administration of the law library
5.2.1 The law school is able to participate effectively in the growth and development of the law library and the use of its resources.
5.2.2 The law library has a person who is appropriately qualified to manage a law library and whose primary responsibility is the management of the law library.
5.2.3 The law library has competent and appropriately qualified staff, sufficient in number to provide appropriate library and informational resource services and support for the law school’s programs.
5.3 Law library services and facilities
5.3.1 The law library provides an appropriate range and depth of
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reference, instructional, bibliographic and other services to meet the needs of the law school’s teaching, research and service programs.
5.3.2 The physical facilities for the law library are sufficient in size, location, and design, in relation to the law school’s programs and enrolment, to accommodate the law school’s students and teaching staff and the law library’s services, collections, staff, operations, and equipment.
5.4 The collection
5.4.1 The collection of the law library is, as a minimum –
a. all public general Acts of the Commonwealth of Australia and of the jurisdiction in which the law school is located, in official and reprint form b. all statutory instruments and other secondary legislation of the Commonwealth of Australia and the jurisdiction in which the law school is located, in original and reprint form, relevant to the subjects taught c. all reported decisions of the superior courts of Australia and of the jurisdiction in which the law school is located that are relevant to the subjects taught, together with such decisions of other courts as are necessary to the understanding of those subjects d. parliamentary materials of the Commonwealth of Australia and of the jurisdiction in which the law school is located, including Bills, parliamentary papers, and reports of parliamentary proceedings, appropriate to
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the subjects taught e. such other official publications of the Commonwealth of Australia and the government of the jurisdiction in which the law school is located as are necessary to support the teaching and research objectives of the law school f. where teaching is provided in the law of any legal system other than that of Australia and of the jurisdiction in which the law school is located, primary legal materials and official publications from that legal system, sufficient to support the objectives of such teaching g. such secondary works (including textbooks, monographs and periodicals) relating to the law of the Commonwealth of Australia and of the jurisdiction in which the law school is located as are necessary to support the teaching and research objectives of the law school h. primary and secondary comparative material from other legal systems which are the subject of study in the law school and are adequate to support the school’s teaching and research programs i. those tools, such as general law encyclopedias, citators, periodical indexes, and current awareness services, which are necessary for the identification and updating of primary and secondary legal materials for the legal systems in which teaching and research are undertaken.
5.4.2 The collection is accessible in printed form or electronically, or both.
6. Resources and infrastructure
6.1 Generally
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6.1.1 The law school has adequate resources and infrastructure to enable it to fulfil its mission. This includes both intangible resources and infrastructure, such as community partnerships, and physical resources and infrastructure, such moot court spaces.
6.2 Physical facilities
6.2.1 The law school has sufficient physical facilities, for both staff and students, to ensure that its educational, research and outreach objectives can be achieved.
6.2.2 The law school has sufficient facilities to enable
effective study and research by students and staff. Commented [MOU13]: Overlap between 6.2.1 and 6.2.2? 6.2.3 The learning environment for students is reviewed and updated regularly to reflect developments in educational practices.
6.2.36.2.4 Standard 6.2 applies where a law school has physical facilities and not where a law school operates
entirely online. Commented [MOU14]: Or ‘6.2 Facilities’ Or ‘6.2.1 The law school has sufficient physical and/or 6.3 Information technology virtual facilities’
6.3.1 The law school has sufficient information and communication technology facilities, for both staff and students, to ensure the law course can be delivered adequately, and to support its educational, research and community outreach programs. 7. Course and subject evaluation
7.1 The law school has course and subject evaluation procedures both internal and external that regularly monitor the curriculum, assessment, quality of teaching and student progress, and identify and address concerns.
7.2 Measures of, and information about, graduate attributes
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are used as feedback to course and subject development.The law school has processes to monitor the cultural appropriateness of Indigenous content across courses and where relevant, subjects.
7.27.3 Measures of, and information about, graduate attributes are used as feedback to inform course and subject
development. Commented [MOU15]: Or: The law school monitors its performance by assessing graduates against its
own measures and through actively seeking 8. The nexus between teaching and research feedback from workplaces.
8.1 The law school fosters the relationship between research and teaching.
8.2 The interaction between research and teaching is reflected in the curriculum. This interaction influences teaching, and encourages and prepares students to engage in legal research and the development of the law.
8.28.3 Indigenous research narratives should be fostered.
9. Governance and administration
9.1 The institution in which the law school is situated
9.1.1 The law school is part of a university or equivalent institution which has the power to award degrees.
9.2 Governance
9.2.1 The law school’s governance structures and functions are defined, including the school’s relationships within the university.
9.3 Academic leadership
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9.3.1 Ideally, the title of the academic head of the law school is ‘dean’.
9.3.2 The responsibilities of the academic head of the law school are clearly stated.
9.3.3 The academic head of the law school has the authority and support needed to discharge the responsibilities of the position and those necessitated by these Standards.
9.4 Budget and resource allocation
9.4.1 The law school has a dedicated operational budget and the primary responsibility for managing it.
9.4.2 The law school has sufficient autonomy to direct resources in order to achieve its mission.
9.5 Administrative staff and management
9.5.1 The law school has appropriate administrative staff to support the implementation of the school’s educational programs and other activities, and to manage and deploy its resources.
9.6 Interaction with the legal profession and the wider community
9.6.1 The law school seeks to engage with the legal profession and the legal sector generally.
9.6.2 The law school seeks to engage with the wider community by encouraging its staff and students to use their knowledge and skills for the benefit of the community. For example, this may include in outreach programs, including, for example, and so far as is practicable, clinical programs, law reform activities, public education, online ventures, and other forms of pro bono community service.
9.6.29.6.3 The law school seeks to develop and maintain
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partnerships with Indigenous stakeholders in the community.
10. Continuous renewal and improvement
10.1 The law school has procedures for regular reviews and updating of its structure, functions, policies and practices, to rectify deficiencies and to meet changing needs.
10.2 The law school’s teaching, research and outreach programs are responsive to legal, and social and technological change.
Part B: Application of the Standards
11. Publication and Alteration of the Standards
11.1 The Council of Australian Law Deans (CALD) shall publish a set of standards for Australian law schools, called The CALD Standards for Australian Law Schools (“the Standards”).
11.2 The Standards may be altered only by CALD at a meeting at which there is a quorum and for which adequate notice of the proposed alteration has been given.
11.3 The Standards may be altered by CALD only after the proposed alteration has been considered by the Law Schools Standards Committee.
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11.4 Commentaries to the Standards may be developed and amended by CALD. All commentaries or their changes shall be approved by CALD at a meeting for which adequate notice has been given of the proposed commentary or change of commentary.
12. Law Schools Standards Committee
12.1 CALD shall establish a committee, to be known as the Australian Law Schools Standards Committee (“the Standards Committee”).
12.2 The Standards Committee shall comprise at least five persons of whom at least two shall be from outside the law school sector.
12.3 Members of the Standards Committee shall normally hold office for five years, and are eligible for re-appointment.
12.4 CALD shall provide secretariat and administrative support to the Standards Committee.
12.5 The Standards Committee may establish panels, normally comprising at least one member of the Committee and augmented by other suitably qualified persons as appropriate.
13. Function of the Law Schools Standards Committee
13.1 The Standards Committee, in its deliberations and decisions, will operate independently of direction from CALD.
13.2 The Standards Committee’s functions are –
a. To consider and determine applications from
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law schools for certification as compliant with the Standards; and b. To keep the Standards under review and to propose to CALD amendments from time to time.
13.3 The Standards Committee may –
a. Certify a law school as compliant with the Standards;
b. Provisionally certify a law school as compliant with the Standards, with that certification to be confirmed on the satisfaction of any appropriate conditions imposed by the Committee; c. Hold over an application at any time, of its own volition or at the request of the applicant; or d. Decline to certify a law school as compliant with the Standards.
13.4 A decision of the Standards Committee pursuant to clause 13.3 is not reviewable by CALD. However, the Standards Committee shall report its decisions in regard to applications for certification to the next meeting of CALD held after its decision has been made, and the report shall include its reasons for the decision. The report shall also note the applications that are under consideration.
14. Certification of law schools as compliant with the Law Schools Standards
14.1 A law school may of its own volition apply to the Standards Committee for certification as compliant with the Standards. A law school is not obliged to seek certification, and may withdraw its application at any time.
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14.2 Best endeavours will be made to coordinate any application to the Standards Committee with other relevant intra-university or externally- imposed reviews.
14.3 The Standards Committee shall normally appoint a panel to consider and advise the Committee on the application. The panel shall normally comprise at least one person from outside the law school sector.
14.4 A law school seeking certification shall provide to the Standards Committee such documentation and assistance as is required by the Committee. This documentation shall include the law school’s self- assessment against the Standards.
14.5 The panel appointed by the Standards Committee shall normally, as part of its consideration of an application for approval, visit the law school and meet with members of staff and other appropriate people.
14.6 The panel shall provide to the law school a draft of its report and recommendations, and shall consider any response from the law school, before making its recommendation to the Standards Committee in regard to that law school.
14.7 The cost of processing an application for certification shall be borne by the law school seeking certification.
14.8 Normally, certification shall be for a period of five years.
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1. Issue of faculty numbers and composition ‐ European Foundation for Management Development (EFMD) Quality Improvement System (EQUIS) Standards, 2019: . Standard 4 ‐ a school should have ‘sufficient core faculty’ ‘i.e. a minimum of 25 FTE’ (36) ‐ Association to Advance Collegiate Schools of Business (AACSB) Standards, 2018: . Standard 5 ‐ draws a distinction between ‘participating’ and ‘supporting’ faculty members, where participating members will normally deliver: at least 75 per cent of the school’s teaching (28) at least 60 per cent of the teaching in each discipline, academic program, location and delivery mode (28) Noting participating members are ‘long‐term members of the faculty, regardless of whether or not their appointments are of a full‐time or part‐time nature’; supporting members are normally appointed ‘on an ad hoc basis – for one term or one academic year without the expectation of continuation – and […] exclusively for teaching responsibilities’ (28) ‐ American Bar Association (ABA) Standards, 2019: . Standard 402 ‐ ‘a law school shall have a sufficient number of full‐time faculty’ (25) . Standard 403 ‐ ‘The full‐time faculty shall teach substantially all of the first one‐third of each student’s coursework. The full‐time faculty shall also teach during the academic year either (1) more than half of all of the credit hours actually offered by the law school, or (2) two‐thirds of the student contact hours generated by student enrolment at the law school’ (26) ‐ Quality Assurance Agency’s (QAA) Law Benchmark Statement, United Kingdom Quality Code for Higher Education, 2015: . ‘Higher education providers with direct or indirect responsibility for law degrees ensure that teaching and learning resources, including staff … are adequate …’ (8) ‐ Standards for Assessment and Accreditation of Primary Medical Programs by the Australian Medical Council, 2012: . Standard 1.8.1 ‐ ‘The medical education provider has the staff necessary to deliver the medical program’ (6)
2. Issue of style ‐ Most standards documents use the active voice and the simple present tense. Modal verb forms of ‘should’ and ‘shall’ are often used. All standards documents show consistency in their choice of expression. The CALD Standards use a variety of tense, voice and verb constructions, for example: . ‘The law school seeks to exceed…’, ‘The law course requires…’ . ‘The law school has defined its mission…’ . ‘Appropriate tuition… is provided…’ . ‘A law school may…apply…’
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\B06‐1a ‐ Further information for CALD Standards Revision_September 2019.docx Page 1 CALD Meeting Paper Page 168 CALD Meeting - 4 Oct 2019 Item B06(1)(c) . ‘A law school seeking certification shall provide…’ ‐ EQUIS Standards: ‘The school should explicitly and effectively support…’, ‘The school should ensure…’ ‐ ABA Standards: ‘A law school shall have…’, ‘The faculty shall possess…’ ‐ AACSB Standards: ‘The school articulates’, ‘The school maintains and deploys…’ ‐ Australian Medical Council Standards: ‘The provider has autonomy…’ ‘The medical program enables students…’
3. Issue of guidance documents ‐ The TLOs are supplemented at the end of the document by explanatory, non‐binding Notes which provide guidance on their interpretation. ‐ The EQUIS Standards include ‘Assessment Criteria’ and explanatory ‘Notes’ after each standard. ‐ The ABA Standards include ‘Interpretation’ points after each standard. ‐ The AACSB Standards contain paragraphs of prefacing remarks giving context to each standard, followed by definitions, ‘Basis for Judgment’ and guidance information. ‐ The TEQSA Standards – there are various ‘guidance notes’ on the TEQSA website.
4. Issue of policy development and implementation ‐ The balance between a law school having its own policy and a law school actively applying and monitoring the implementation of a university‐wide policy requires particular attention. ALSSC recommends a key feature of any clarification of the Standard should emphasise its non‐ delegable nature; that is, at minimum, local responsibility for the implementation of university‐ wide standards (ALSSC Meeting, 2 April 2019). ‐ CALD may wish to identify the Standards where there is an onus on law schools to develop their own policies and not rely on university policies (Sourdin Report).
5. Issue of minimum or aspirational standards ‐ ALSSC have noted that the CALD Standards comprise a mix of threshold and aspirational standards with no obvious designation of which is which. This approach can make it difficult when it comes to application of the Standards during certification, and their ongoing implementation (ALSSC Meeting, 2 April 2019). ‐ ‘The question of whether the Standards are ‘minimum’ or ‘aspirational’ was much debated in the course of the drafting. In the end, CALD decided that the distinction was unhelpful, and that each standard should be read according to its own terms and applied accordingly. (Section 1.2.1 provides, however, that a law school ‘seeks to exceed the requirements of these Standards’.)’ (Introduction and Context to the CALD Standards for Australian Law Schools, March 2014).
6. Issues of values and skills ‐ The increased skills focus encompassed in the Standards is valued by CALD … as is the move toward understanding the Priestley 11 as indicative, not prescriptive (ALSSC Meeting, 2 April 2019). ‐ The Committee noted that the Standards are important in articulating the values and ideals that Australian law schools believe are necessary and appropriate to achieving excellence and adding
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\B06‐1a ‐ Further information for CALD Standards Revision_September 2019.docx Page 2 CALD Meeting Paper Page 169 CALD Meeting - 4 Oct 2019 Item B06(1)(c) value to society (e.g. ethical conduct, the rule of law and a commitment to community service) and should be maintained (ALSSC Final Draft Minutes, 10 September 2018). ‐ The development and implementation of the Standards is essential to designing the values that underpin the legal profession. The Standards offer an additional and critical dimension to legal education in Australia, beyond what is offered in the academic and practical legal training (‘PLT’) aspects of legal training alone (ALSSC Meeting 2 April 2019). ‐ Importance of ‘character’ of a law school and its values (e.g. captured in Standards 2.9, 4.3.4) (Michael Black, The CALD Standards for Australian Law Schools: much more than course content).
7. Issue of distinction between CALD Standards and LACC Standards ‐ Importance of distinguishing CALD Standards as concerned with values and standards of the law school from LACC Standards which focuses on law courses (Michael Black, The CALD Standards for Australian Law Schools: much more than course content). ‐ ‘I’m an interested party here, but I think we need to take care that the CALD Standards do not edge towards the LACC Standards while those remain only directly applicable in two States (with a third probably coming). I do think, though, that the CALD Standards should set a higher benchmark than, e.g., the light‐handed Queensland approvals processes, but equally would be concerned that the LACC Standards do not direct the CALD Standards just to secure alignment between the two sets of requirements. I appreciate that this comment is in tension with my comments in points 1 and 2,1 and that the balance will not be easy to strike’ (Reid Mortensen, USQ and CALD Working Party, written feedback).
8. Issue of interaction between CALD Standards and TEQSA Standards ‐ ALSSC Interim Certification Invitation (July 2014) contains detailed information on the overlap between the CALD and TEQSA Standards, and implications for certification. Extracted in part here: ‘The standards that overlap are: ‐ Clear overlap: 2.5; 2.6; 3.1; 4.1; 4.2; 7.1; 8; 10.1 ‐ Sufficient overlap: 3.2; 4.3 (not 4.3.4); 4.4; 4.5; 5.1 (not 5.1.1); 5.3; 6.1; 6.2; 6.3. Standards classified as having a ‘clear overlap’ are those TEQSA Standards that require the same or more than the CALD Standards. Those classified as ‘sufficient overlap’ are TEQSA Standards that approximate the CALD Standards – though generally creating a university wide obligation … As a result of this overlap, and the principle of earned autonomy now underlying the application of the TEQSA Standards, ALSSC will not be requiring documentation to support claims of compliance against CALD Standards 5 The law library or law collection, 6 Resources and Infrastructure, and 9 Governance and Administration. Only a number of aspects of CALD Standard 4 Academic Staff will require explanation. For Interim Certification purposes it will also be assumed that policies applicable to LLB and JD students and degree programs will be generally applicable to postgraduate coursework students and degree programs and so CALD Standard 2.8 Postgraduate legal education will not be independently considered.’
1 Points 1 and 2 respectively being: question around giving more detail to relationship between assessment and learning (3.2.1) and suggestion to include more detail on TEQSA requirements in 4.2.
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10. CALD Standards Part B ‐ The Committee emphasised that the role of the ALSSC is not in the design of the Standards, but in their implementation. Promotion of justice and the rule of law is central to the values of the ALSSC. ‘How do you make a lawyer?’ – the Standards can make significant progress to achieving satisfactory answers to this question. [Consider in light of Standard 13.2?] (ALSSC Meeting 2 April 2019). ‐ Part B of the CALD Standards may require review in light of the proposed CALD/LACC merger (ALSSC Meeting 15 September 2017). ‐ Section 14 (Action Items for ALSSC Meeting 10 September 2018): . Recommendation that attention be given to amending CALD Standard 14 to accommodate the process of certification on the papers. . Recommendation that the certification process be referred to as “certification” not “interim” or “full” certification. . Recommendation to identify the Standards which, whilst desirable and should be maintained, compliance was outside the law schools’ control and therefore compliance with which may not be required for certification purposes.2 . Recommendation to identify the Standards which may be assessed in practical terms against the reality of the law schools’ circumstances.
11. Feedback received and compiled from the following sources: ‐ Action Items for ALSSC Meeting, 10 September 2018 ‐ ALSSC Meeting, 10 September 2018 ‐ ALSSC Interim Certification Invitation, July 2014 ‐ ALSSC Meeting, 2 April 2019 ‐ Charles Sturt University Library, written feedback, 11 September 2019 ‐ Deakin University Library, written feedback, 13 September 2019 ‐ Griffith University Library, written feedback, 13 September 2019 ‐ Introduction and Context to the CALD Standards for Australian Law Schools, March 2014 ‐ LEAD, written feedback, May 2019 ‐ LEAD Meeting on CALD Standards, 3 May 2019
2 See ALSSC Interim Certification Invitation (July 2014) which offers some comment on this.
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\B06‐1a ‐ Further information for CALD Standards Revision_September 2019.docx Page 4 CALD Meeting Paper Page 171 CALD Meeting - 4 Oct 2019 Item B06(1)(c) ‐ Michael Black, ALSSC Report to CALD on interim certification process, 6 March 2017 ‐ Michael Black, The CALD Standards for Australian Law Schools, 2018 ‐ Monash University Library, written feedback, 12 September 2019 ‐ Reid Mortensen (USQ and CALD Working Party on Review of CALD Standards), written feedback ‐ Sourdin Report, March 2019 ‐ University of Melbourne Library, written feedback, 16 September 2019 ‐ University of Newcastle Library, verbal and written feedback, 29 August 2019 and 3 September 2019 ‐ University of Wollongong Library, written feedback, 10 September 2019 ‐ Working Party on First Nations Partnerships, written feedback, May 2019
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\B06‐1a ‐ Further information for CALD Standards Revision_September 2019.docx Page 5 CALD Meeting Paper Page 172 CALD Meeting - 4 Oct 2019 Item C01 CPLE Annual Law School Survey and Yearbook Project Version: 6 September 2019
Overview The object of the annual survey is to provide law schools, legal education scholars, law teachers and the legal profession with an authoritative source of data about the teaching of law by Australian legal schools, for the purposes of improving law school administration, empowering law schools, facilitating individual self‐reflection by law teachers, supporting and informing legal education scholarship, educating employers of law graduates, and supporting law teaching reform.
Process 1. STEP ONE: Design survey 2. STEP TWO: Ethics approval 3. STEP THREE: Administer survey 4. STEP FOUR: Analyse results 5. STEP FIVE: Publish report 6. STEP SIX: Distribute report
Glossary
Academic staff Administrative staff AQF Australian Qualifications Framework Benchmarking Blended delivery Block teaching Casual staff Combined degree Electronic library resources Entry requirement Full time staff Hard copy library resources GPA Grade Point Average Library users Part time staff Program Standalone degree Unit
CALD Meeting Paper Page 173 CALD Meeting - 4 Oct 2019 Item C01 The following questions relate to the calendar year 1 January 2019 to 31 December 2019.
Questions in green are only asked if the previous question is answered in a particular way.
Introductory These questions will facilitate analysis of the data by type, location and age of institution, law school structure and jurisdiction.
1. Name of university: What is the name of your University?
2. Location of university: In which State is the law school located?
3. Law school structure: What is the formal structure of your law school? Faculty School Department Other
4. Age of law school: In what year was your law school first established?
Law programs These questions identify the programs offered by the law school.
5. Undergraduate programs: Which of the following undergraduate programs were offered by your law school? Bachelor of Laws Pathway program into LLB, e.g. Diploma of Legal Studies Bachelor degree for non‐lawyers, e.g. Bachelor of Legal Studies Other
6. Postgraduate programs: Which of the following postgraduate programs were offered by your law school? Juris doctor Graduate Diploma in Legal Practice / Practical Legal Training Master of Laws by coursework Masters program for non‐lawyers e.g. Masters of Applied Law Master of Laws by research Doctor of Philosophy (PhD) Doctor of Juridical Science (SJD) Other
7. Non‐AQF programs: Which of the following non‐AQF programs were offered by your law school? Continuing professional development standalone events, e.g. seminars CPD Programs for legal practitioners – short courses CPD Programs for other industries or professions – short courses Other
CALD Meeting Paper Page 174 CALD Meeting - 4 Oct 2019 Item C01 LLB and JD program structure
[Whether the questions about the LLB, the JD or both are asked will depend upon which programs are offered by the law school.]
Bachelor of Laws These questions identify the specific features of the Bachelor of Laws to facilitate program comparisons, including the way each law school addresses the Priestley 11 prescribed areas of knowledge, permits majors or specialisations, permits combined degrees, and engages in curriculum review.
8. Duration of program: How many semesters of full‐time study were required to complete the program?
9. Number of intakes: How many intakes per year were available? 1 2 3
10. Number and type of units: Number of compulsory law units Number of compulsory non‐law units Number of elective law units Number of elective non‐law units Total number of units
11. Units per prescribed area of knowledge: How many units were allocated to each of the 11 prescribed areas of knowledge? Administrative Law Civil Procedure Company Law Contracts Criminal Law and Procedure Equity (including Trusts) Ethics and Professional Responsibility Evidence Federal and State Constitutional Law Property Torts
12. Majors / specialisations: Could students graduate with a major or specialisation?
13. Please list the permitted majors / specialisations.
14. Major / specialisation requirements: How many units had to be completed to be eligible for the major or specialisation?
CALD Meeting Paper Page 175 CALD Meeting - 4 Oct 2019 Item C01 15. Combined degree programs: Could students complete a combined degree program? All law students were obliged to complete a combined degree program. Law students could choose between a standalone LLB degree or a combined degree. The LLB was offered as a standalone degree only.
16. Please list the permitted combined degrees.
17. Curriculum review: When was the most recent curriculum review of this program?
18. Curriculum review benchmarking: Was the design of the current curriculum benchmarked against another institution or institutions?
19. Please provide details.
Juris Doctor These questions identify the specific features of the Juris Doctor to facilitate program comparisons, including the way each law school addresses the Priestley 11 prescribed areas of knowledge, permits majors or specialisations, and engages in curriculum review.
20. Duration of program: How many semesters of full‐time study were required to complete the program?
21. Number of intakes: How many intakes per year were available? 1 2 3
22. Number and type of units: Number of compulsory law units Number of compulsory non‐law units Number of elective law units Number of elective non‐law units Total number of units
23. Units per prescribed area of knowledge: How many units were allocated to each of the 11 prescribed areas of knowledge? Administrative Law Civil Procedure Company Law Contracts Criminal Law and Procedure Equity (including Trusts) Ethics and Professional Responsibility Evidence Federal and State Constitutional Law Property Torts
CALD Meeting Paper Page 176 CALD Meeting - 4 Oct 2019 Item C01 24. Majors / specialisations: Could students graduate with a major or specialisation?
25. Please list the permitted majors / specialisations.
26. Major / specialisation requirements: How many units had to be completed to be eligible for the major or specialisation?
27. Curriculum review: When was the most recent curriculum review of this program?
28. Curriculum review benchmarking: Was the design of the current curriculum benchmarked against another institution or institutions?
29. Please provide details.
Honours These questions identify the law school’s approach to awarding Honours to facilitate identification of the level of consistency / inconsistency between law schools and to track changes across time.
[Whether the questions about the LLB, the JD or both are asked will depend upon which programs are offered by the law school.]
30. Approach to awarding LLB Honours: Could LLB students graduate with Honours? No Yes, based solely on GPA Yes, if they completed an Honours thesis / program (with or without GPA requirement) Yes, all LLB students graduated with Honours
31. Classes of LLB Honours: What were the classes of Honours?
32. LLB Honours units: How many units were allocated to this thesis or program?
33. LLB Honours GPA: (What were the GPA requirements for each class of Honours?
34. Approach to awarding JD Honours or equivalent: Could JD students graduate with Honours or equivalent? No Yes, based solely on GPA Yes, if they completed an Honours thesis / units (with or without GPA requirement) Yes, all JD students graduated with Honours
35. Classes of JD Honours: What were the classes of Honours?
36. JD Honours units: How many units were allocated to this thesis or program?
37. JD Honours GPA: What were the GPA requirements for each class of Honours?
Program Delivery
CALD Meeting Paper Page 177 CALD Meeting - 4 Oct 2019 Item C01 These questions identify how programs and units were delivered, including information about compulsory class attendance, lecture recording and learning management systems, to facilitate comparison between law schools and track changes across time.
38. Methods of delivery of compulsory law units: How were compulsory law units in the LLB/JD program delivered? (Choose all that apply, and rank them in order of frequency of use) Face to face lectures Face to face tutorials Face to face seminars Online classes Online modules Blended delivery Block teaching Intensive Workplace or clinical placement Other
39. Methods of delivery of elective law units: How were elective law units in the LLB/JD program delivered? (Choose all that apply, and rank them in order of frequency of use) Face to face lectures Face to face tutorials Face to face seminars Online classes Online modules Blended delivery Block teaching Intensive Workplace or clinical placement Other
40. Lecture attendance: Was lecture attendance compulsory? In all units In compulsory units only In some units No
41. Tutorial / seminar attendance: Was tutorial / seminar attendance compulsory? In all units In compulsory units only In some units No
42. Lecture recording: If units were delivered face to face, were lectures recorded and made available to students? Lectures in all units were recorded Lectures in all compulsory units were recorded, but elective units were optional
CALD Meeting Paper Page 178 CALD Meeting - 4 Oct 2019 Item C01 All unit coordinators had the option of recording lectures No lectures were recorded
43. Learning management system: What was the learning management system used in most or all units? Blackboard Moodle Brightspace NeoLMS Canvas Totara Learn Other
44. Student evaluation of teaching: Were law teachers obliged to administer formal student evaluations of their teaching? All teachers had to administer formal student evaluations of their teaching. Some but not all teachers had to administer formal student evaluations of their teaching. Student evaluations of teaching were optional.
45. How often were teachers obliged to administer student evaluations of their teaching? Every semester Once per year Other
46. Which teachers had to administer formal student evaluations of their teaching? Units coordinators Teachers of compulsory units Teachers of units with large enrolments Other
47. Student evaluation of units: Were unit coordinators obliged to administer formal student evaluations of their units? All unit coordinators had to administer formal student evaluations of their units. Some but not all unit coordinators had to administer formal student evaluations of their units. Student evaluations of units were optional.
48. How often were unit coordinators obliged to administer student evaluations of their units? Every semester Once per year Other
49. Which unit coordinators had to administer formal student evaluations of their units? Coordinators of compulsory units Coordinators of units with large enrolments Other
CALD Meeting Paper Page 179 CALD Meeting - 4 Oct 2019 Item C01 Assessment These questions identify the forms of assessment used by the law school and approaches to grading and to mandating grade distributions, to facilitate comparison between law schools, identify best practice, and track changes across time.
50. Forms of assessment: Which of the following forms of assessment were used in compulsory units in the LLB/JD program? (Choose all that apply, and rank them in order of frequency of use) 100% written exams Non‐100% written exams Assignments /essays Multiple‐choice tests Skills demonstrations, e.g. mooting, interviewing, negotiations Oral presentations Class participation Other
51. Benchmarking of assessment: Did your law school participate in external benchmarking of assessment?
52. Please provide details.
53. Academic misconduct matters: How many formal disciplinary matters involving academic misconduct were heard in 2019?
54. Grading schema: What grading schema was used in your law school? Grades 1 to 7 Grades 1 to 4 Grades E to A Fail, Pass, Credit, Distinction, High Distinction Other
55. Grading cut‐offs: What were the percentage cut‐offs for each grade?
56. Mandated distribution of grades: Was there an anticipated / expected / mandated distribution of grades in each unit?
57. What was the mandated distribution for (a) compulsory units, (b) elective units?
58. Non‐alignment with mandated distribution: What were the consequences of a distribution not aligning with the anticipated / expected / mandated distribution?
59. Mandated referencing style: What was the mandated referencing style for students? AGLC Other Students were not obliged to use a particular referencing style
CALD Meeting Paper Page 180 CALD Meeting - 4 Oct 2019 Item C01 Extra‐curricular and other learning experiences These questions identify the various extra‐curricular, work‐integrated and other learning experiences offered by the law school to facilitate identification of best practice, assist law schools seeking to introduce such experiences, and support the work of legal education scholars focussing on these activities.
60. Clinics: Did the law school offer an on campus or affiliated law clinic?
61. Clinic participation: Was student participation in the law clinic mandatory or optional?
62. International mooting competitions: How many international mooting competitions did the law school participate in?
63. Domestic external mooting competitions: How many domestic external mooting competitions did the law school participate in? An external mooting competition is one that the law school did not itself administer.
64. Domestic internal mooting competitions: How many domestic internal mooting competitions did the law school participate in? An internal mooting competition is one that the law school itself administered.
65. International exchange or study abroad: How many law students participated in international exchange or study abroad?
66. Other learning experiences, e.g. hackathons: Which of the following learning experiences were made available to law students by the law school, whether curricular or extra‐curricular? Hackathons NOOTing and other competitive skills demonstrations Placements and internships Law review or law journal student editorial positions Study tours Justice/innocence project Other
Entry requirements These questions identify the program entry requirements to facilitate law school comparisons and analysis of the data provided in response to other questions.
[Whether the questions about the LLB, the JD or both are asked will depend upon which programs are offered by the law school.]
67. LLB entry requirement: What was the entry requirement for enrolment in the LLB?
68. JD entry requirement: What was the entry requirement for enrolment in the JD?
69. LLB English language requirement: What was the minimum IELTS or other English language requirement for entry in the LLB?
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70. JD English language requirement: What was the minimum IELTS or other English language requirement for entry in the JD?
Student numbers and demographics These questions identify the actual student enrolments in the law school’s main programs. The results will provide an accurate picture of the numbers and demographics of law students studying and graduating each year. This data is of particular value given concerns expressed by some regarding the alleged ‘over supply’ of law graduates.
[Whether the questions about the LLB, the JD or both are asked will depend upon which programs are offered by the law school.]
Bachelor of Laws
71. Enrolment target: What was the new enrolment target for the year?
72. Commencing students: How many students actually commenced?
73. Total enrolments: What was the total number of students enrolled in the program?
74. Age: Of the total number of students enrolled in the program, what was the median age?
75. Gender: What was distribution of male / female / other students?
76. Study mode: What was the distribution of full time / part time students?
77. Single v combined degree: What was the distribution of single degree / combined degree students?
78. Domestic v international: What was the distribution of domestic / international students?
79. Country of origin: Of the international students, what were the top three countries of origin?
80. Full fee paying students: What was the distribution of full fee paying / HECS or FEE‐HELP students?
81. ATSI students: How many students identified as Aboriginal or Torres Strait Islander?
82. Students with a disability: How many students identified as having a disability?
83. Scholarships: How many students were enrolled on scholarships?
84. Completions: How many students completed the program in 2019?
85. Retention rate: What was the overall retention rate for the program?
86. Honours: How many students received Honours in each class?
CALD Meeting Paper Page 182 CALD Meeting - 4 Oct 2019 Item C01
Juris Doctor
87. Enrolment target: What was the new enrolment target for the year?
88. Commencing students: How many students actually commenced?
89. Total enrolments: What was the total number of students enrolled in the program?
90. Age: Of the total number of students enrolled in the program, what was the median age?
91. Gender: What was distribution of male / female / other students?
92. Study mode: What was the distribution of full time / part time students?
93. Domestic v international: What was the distribution of domestic / international students?
94. Country of origin: Of the international students, what were the top three countries of origin?
95. Full fee paying students: What was the distribution of full fee paying / HECS or FEE‐HELP students?
96. ATSI students: How many students identified as Aboriginal or Torres Strait Islander?
97. Students with a disability: How many students identified as having a disability?
98. Scholarships: How many students were enrolled on scholarships?
99. Completions: How many students completed the program in 2019?
100. Retention rate: What was the overall retention rate for the program?
101. Honours: How many students received Honours or equivalent in each class?
Other programs
102. Enrolments in other programs: How many students were enrolled in each of the following programs? Pathway program into LLB, eg Diploma of Legal Studies Bachelor degree for non‐lawyers, e.g. Bachelor of Legal Studies Graduate Diploma in Legal Practice / Practical Legal Training Master of Laws by coursework Masters program for non‐lawyers e.g. Masters of Applied Law Master of Laws by research Doctor of Philosophy (PhD) Doctor of Juridical Science (SJD)
CALD Meeting Paper Page 183 CALD Meeting - 4 Oct 2019 Item C01 Staff and Structure These questions identify the number and demographics of full time, part time and casual staff employed within the law school to facilitate analysis of the other data and track changes over time.
Full time and part time academics as at 1 August
103. Number: What was the total number of full‐time and part‐time academics employed in the law school?
104. Median age: What was the median age of full‐time and part‐time academics?
105. Gender: What was the distribution of male / female / other full‐time and part‐time academics?
106. Level: What was the distribution of Level A / Level B / Level C / Level D / Level E full‐time and part‐ time academics?
107. Type of position: What was the distribution of teaching + research, research‐only, and teaching‐ only, clinical academics?
108. Highest qualification: What was the distribution of highest degrees of full‐time and part‐time academics by AQF level? Level 7 Level 8 Level 9 Level 10
109. ATSI staff: How many full‐time and part‐time academics identified as Aboriginal or Torres Strait Islander?
110. Staff with a disability: How many full‐time and part‐time academics identified as having a disability?
111. Practising certificates: How many full‐time and part‐time academics held practising certificates?
112. CPD: Were full time and part time academics obliged to engage in continuing professional development?
113. Please provide details.
Casual academics across the year
114. Number: What was the total number of casual academics employed in the law school? (If a specific academic taught in more than one semester in the year, only count them once.)
115. Duration of employment: Across the year, how many were employed for 1 semester 2 semesters
CALD Meeting Paper Page 184 CALD Meeting - 4 Oct 2019 Item C01 3 semesters
116. Median age: What was the median age of casual academics?
117. Gender: What was the distribution of male / female / other casual academics?
118. Highest qualification: What was the distribution of highest degrees of casual academics by AQF level? Level 7 Level 8 Level 9 Level 10
119. ATSI staff: How many casual academics identified as Aboriginal or Torres Strait Islander?
120. Staff with a disability: How many casual academics identified as having a disability?
121. Practising certificates: How many casual academics held practising certificates?
122. CPD: Were casual academics obliged to engage in continuing professional development?
123. Please provide details.
124. Were casual academics paid to engage in continuing professional development?
Administrative staff as at 1 August
125. Number employed within law school: What was the total number of administrative staff employed in the law school?
126. Number employed centrally: Employed centrally but physically located in or focussed primarily upon supporting the law school?
127. Gender: What was the distribution of male / female / other professional staff?
128. ATSI staff: How many administrative staff identified as Aboriginal or Torres Strait Islander?
129. Staff with a disability: How many administrative staff identified as having a disability?
CALD Meeting Paper Page 185 CALD Meeting - 4 Oct 2019 Item C01 Leadership Team These questions identify the demographics of the law school leadership team to facilitate analysis of the other data and track changes over time. It will be of particular interest to law deans.
130. Title of Dean: What was the formal title of the most senior person in the law school? Executive Dean Dean Head of School Program Director Other
131. Term of Dean: What was the standard term of appointment of the Dean or equivalent?
132. Turnover: Was a new Dean or equivalent appointed in 2019?
133. Members of leadership team: Which of the following were members of the law school leadership team? (NB Actual title may vary) Deputy Dean Associate Dean Learning and Teaching Associate Dean Research Associate Dean Staff Associate Dean Students Associate Dean Engagement School Manager Other
134. Gender: What was the distribution of male / female / other leadership team members?
135. ATSI staff: How many leadership team members identified as Aboriginal or Torres Strait Islander?
136. Staff with a disability: How many leadership team members identified as having a disability?
137. Eligibility: What was the minimum academic level to be eligible to be a member of the leadership team? Level E Level D Level C Level B Level A
138. Term of appointment: What was the standard term of appointment of a member of the leadership team (other than Dean)?
CALD Meeting Paper Page 186 CALD Meeting - 4 Oct 2019 Item C01 Facilities These questions focus on the facilities provided to law students for the purposes of comparison between law schools. They may be of relevance to Dean lobbying for additional resources.
139. Responsibility for teaching spaces: Who was primarily responsible for administration of teaching spaces? The law school The university
140. Access to study spaces: What were the hours within which law school or university study spaces were available to students?
141. Moot courts: Did the law school have at least one moot court?
Law Library These questions focus on the library facilities for the purposes of comparison between law schools. They may be of relevance to Dean and Law Librarians lobbying for additional resources.
142. Separate law library: Was the law library a separate space or integrated with the university library?
143. User numbers: What were the user numbers?
144. Size of hard copy collection: What was the size of the hard copy collection?
145. Size of electronic collection: What was the size of the electronic collection?
146. Budget: What was the 2019 law library budget for purchasing new resources?
147. Number of staff: What was the total number of staff employed in the law library?
148. Gender: What was the distribution of male / female / other law library staff?
149. ATSI staff: How many law library staff identified as Aboriginal or Torres Strait Islander?
150. Staff with disability: How many law library staff identified as having a disability?
151. Staff qualifications: How many law library staff held formal librarian qualifications?
152. Opening times: What were the law library opening times?
153. Access to resources: Who was entitled access to the law library’s online resources (e.g. databases, e‐books) Current students Alumni Full‐time and part‐time staff Casual staff Members of the public
CALD Meeting Paper Page 187 CALD Meeting - 4 Oct 2019 Item C01 Other
154. Free or subsidised textbooks: Were students provided with free or subsidised textbooks (including a refundable deposit)? No First years students only Compulsory units only All students Other
155. In what format were the textbooks provided? Electronic format Hard copy
Aspirations These questions seek to gather information about law student career aspirations for the purpose of identifying national statistics and trends.
156. Collection of information: Did the law school collect information about law student employment aspirations?
157. How and when?
158. Admission to practice: What proportion of students aspired to seek admission to legal practice?
159. Legal employment positions: What legal employment positions did law students aspire to secure?
160. Non‐legal employment positions: What non‐legal employment positions did law students aspire to secure?
Outcomes These questions seek to gather information about law student employment outcomes for the purpose of identifying national statistics and trends.
161. Tracking of employment outcomes: Were the employment outcomes of students who graduated in the previous year (2018) tracked?
162. How and when?
163. Admission to practice: What proportion of students sought admission to legal practice?
164. Legal employment positions: What legal employment positions did law students secure?
165. Non‐legal employment positions: What non‐legal employment positions did law students secure?
166. Postgraduate study: What proportion of students who graduated in the previous year (2018) commenced postgraduate or further study?
CALD Meeting Paper Page 188 CALD Meeting - 4 Oct 2019 Item C02 Election of Officers
CALD EXECUTIVE MEMBERSHIP AS AT 3 OCTOBER 2019
Term Position Name University expires Chair Prof Lesley Hitchens University of Technology, Sydney Oct 2020 Deputy Chair Prof Melissa de Zwart The University of Adelaide Mar 2021 Treasurer Assoc Prof Alison Gerard Charles Sturt University Oct 2020 Chairs of Standing Committees: * Standards, Accreditation, Prof Tania Sourdin The University of Newcastle Oct 2019 & Legal Profession * Legal Research Prof Stephen Colbran CQUniversity Australia Oct 2019 Legal Education Prof Nick James Bond University Oct 2020 International Matters Prof Pip Nicholson The University of Melbourne Oct 2020
* Position to be elected – nominations to be received by 12.00pm Thursday 3 October 2019.
CALD MEMBERS AS AT 3 OCTOBER 2019 Australian Catholic University Prof Rocque Reynolds Dean of Law Australian National University Prof Sally Wheeler OBE Dean Bond University Prof Nick James Executive Dean Charles Darwin University Assoc Prof Alan Berman Dean of Law Charles Sturt University Assoc Prof Alison Gerard Director CQUniversity Australia Prof Stephen Colbran Head (Discipline of Law) Curtin University Prof Robert Cunningham Dean and Head of School Deakin University Prof Jenni Lightowlers Dean of Law Edith Cowan University Assoc Prof Joshua Aston Assoc Dean (Law) Flinders University Assoc Prof Tania Leiman Dean Griffith University Assoc Prof Therese Wilson Dean of Law and Head of School James Cook University Prof Elizabeth Spencer Dean La Trobe University Assoc Prof David Wishart Acting Head of School Macquarie University Prof Marc de Vos Dean Monash University Prof Bryan Horrigan Dean Murdoch University Ms Sonia Walker Head of Discipline, Law and Criminology Queensland University of Assoc Prof Allan Chay Acting Executive Dean (until end Oct Technology 2019; Prof Dan Hunter, incoming Executive Dean) RMIT University Prof Kathy Douglas Dean
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Southern Cross University Prof William MacNeil Dean of Law and Head of School Swinburne University of Technology Prof Dan Hunter Foundation Dean of Law (until end Oct 2019) Assoc Prof Amanda Incoming Acting Dean (from end Oct Scardamaglia 2019) The University of Adelaide Prof Melissa de Zwart Dean of Law The University of Melbourne Prof Pip Nicholson Dean The University of Newcastle Prof Tania Sourdin Dean and Head of School The University of Notre Dame, Prof Michael Quinlan Dean (Sydney) Australia Prof Joan Squelch Dean (Fremantle) The University of Queensland Prof Patrick Parkinson AM Head of School and Dean of Law The University of Sydney Prof Simon Bronitt Head of School and Dean The University of Western Australia Prof Natalie Skead Dean University of Canberra Assoc Prof Benedict Sheehy Head, School of Law University of New England Prof Michael Adams Head of School University of South Australia Prof Rick Sarre Dean and Head of School University of Southern Queensland Prof Reid Mortensen Head of School University of Tasmania Prof Tim McCormack Dean and Head of School University of Technology, Sydney Prof Lesley Hitchens Dean University of the Sunshine Coast Prof Jay Sanderson Head of the School University of Wollongong Prof Colin Picker Dean of Law UNSW Sydney Prof George Williams AO Dean Victoria University Prof Michael Stuckey Dean Western Sydney University Prof Anna Cody Dean
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Legal Education and Technology Professor Nick James, Standing Committee Chair, Legal Education
Are contract law teachers spending too much time teaching the postal rule and not enough time teaching law students about blockchains and smart contracts? Are the clinical legal skills we are teaching our law students aligned with the delivery of technology enhanced legal services? What will be the impact of AI and machine learning upon the teaching of law by law schools?
The legal profession and the legal services sector has for many years been undergoing a process of change, driven by a combination of factors including globalisation, the diversification of legal services delivery models, and generational change amongst graduates, employers and clients. The latest driver for change, and one very much the focus of contemporary discussions within the academy and profession, is the emergence of a wide variety of disruptive technologies and technological innovations, from the Internet itself, social media, big data, machine learning and artificial intelligence to 3D printing, augmented reality, and smart devices. Some are driving changes in the law itself and the way the law is administered and enforced. Others are driving changes in the ways legal services are being delivered by lawyers and others, including supporting the emergence of radical new ways in which the legal needs of clients and communities can be met. All have an impact upon law schools: what and how they engage in research, what and how they teach, and how they engage with the profession and the wider community.
What can (and should) law schools do to keep pace with these changes and ensure they remain relevant, and their graduates remain employable? More specifically, how can (and should) Australian law schools collaborate in meeting this challenge, via CALD, LEAD, ALAA and other networks? Professor Nick James will lead a discussion about the place of collaboration between law schools in responding to the emergence of disruptive technologies, including the role of collaborative projects such as that presently undertaken lead by LEAD and the Centre for Professional Legal Education on the impact of emergent technologies upon the teaching of the Priestley 11 subjects.
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CALD Working Party on First Peoples Partnership Proposal
24 September 2019
Aim: To bring members of the Working Party on First People’s Partnership together to build relationships, promote dialogue and conclude the final draft of the Terms of Reference to be submitted to CALD.
Background:
Embedding Indigenous cultural competence into law curricula at universities is a project that recognises the place of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia and as custodians of the oldest continuing cultural traditions in the world.1 The Indigenous Higher Education Advisory Council (IHEAC) argues that higher education institutions are vital to ‘raising the health, education and economic outcomes for the Indigenous community overall’ and in ‘preparing educated people for leadership roles’.2
Indigenous cultural competence is about more than curriculum and extends to Indigenous employment strategies, the involvement of Indigenous people in university decision-making and higher education policy, and the promotion of cultural safety within universities.3 Universities Australia undertook an extensive project on Indigenous cultural competence in 2009–11 that produced the most widely operationalised definition of the concept as it pertains to curriculum:
Student and staff knowledge and understanding of Indigenous Australian cultures, histories and contemporary realities and awareness of Indigenous protocols, combined with proficiency to engage and work effectively in Indigenous contexts congruent to the expectations of Indigenous Australian peoples.4 At a national level, both the Bradley Review5 and the Behrendt Review6 recommended that universities take up the challenge of incorporating Indigenous knowledges into curriculum and enhancing the cultural competence of all graduates and staff. The incorporation of Indigenous cultural competence is reinforced by international law through the United Nations Declaration on the Rights of Indigenous Peoples.7 Since the release of its Best Practice Framework statement, Universities Australia has also released the Indigenous Strategy 2017-2020. This strategy focuses on improving the: participation of Indigenous people in higher education as students, graduates and staff; understanding of non-Indigenous people about Indigenous knowledges, cultures and
1 Universities Australia, National Best Practice Framework for Indigenous Cultural Competency in Australian Universities (2011) 4. 2 Indigenous Higher Education Advisory Council (2005) 5 cited in Universities Australia, National Best Practice Framework for Indigenous Cultural Competency in Australian Universities (Canberra, 2011) 18. 3 Universities Australia, Guiding Principles for Developing Indigenous Cultural Competency in Australian Universities (Canberra, 2011) 11. 4 Ibid 3. 5 Denise Bradley et al., Review of Australian Higher Education: Final Report (Department of Education, Employment and Employee Relations, 2008). 6 Larissa Behrendt, Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People Final Report (Australian Government, 2012). 7Article 14(2) of the UN Declaration on the Rights of Indigenous Peoples states that ‘Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination’.
CALD Meeting Paper Page 192 CALD Meeting - 4 Oct 2019 Item E01
‘educational approaches’; and the university environment for Aboriginal and Torres Strait Islander people.8 The Indigenous Cultural Competency for Legal Academics Program (ICCLAP), led by Marcelle Burns, Lecturer at UNE, released its Final Report in 2019.9 This project, which began in 2016, consulted with legal academics and key stakeholders to develop guidelines for embedding ICC in legal education and established a community of practice of legal academics supporting the embedding of ICC in legal education. ICCLAP produced a number of practical recommendations, one of which states that:
CALD establish a working party to support the incorporation of ICC in law curriculum, with members of the project team to provide ongoing advice and guidance.10 At the October 2017 meeting of CALD it was agreed that ‘Law Deans would speak to their Indigenous colleagues to seek advice regarding the establishment and constitution of a working party to examine the progress of the key findings of the ICCLAP report’.11 The related Action Item required the Chair to contact Marcelle Burns to progress the key findings of the ICCLAP report, and aimed for a draft proposal to be prepared with report back at the July 2018 CALD meeting.
On 4 September 2018, the Chair of the Working Party convened a meeting with Marcelle Burns, Professor Natalie Skead, and Associate Professor Alison Gerard (Dr Ambelin Kwaymullina an apology). A draft TOR was circulated 25 February 2019 and a second iteration on 13 March 2019. Membership was extended to include: Professor Irene Watson (PVC Aboriginal Leadership and Strategy, UniSA), Professor Asmi Wood (ANU), Dr Heron Loban (Griffith) and Annette Gainsford (Charles Sturt University).
At the CALD meeting on 15 March 2019, it was anticipated that a third iteration would be ready to submit to the CALD July meeting. However, this meeting did not proceed. Although the Working Party has not met since March 2019, a small meeting of some members was able to occur on the sidelines of the July 2019 ALAA Conference and subsequently by teleconference on 30 August 2019, although the latter was to discuss a LACC submission. Albeit unable to meet in full, the Working Party did provide a submission on the ALSSC.
Relationship building is a crucial component in the ethical engagement with First Nations Peoples to support collaboration. 12 The Working Party Members need to get together to build relationships, trust and to engage with the draft TOR. The proposed half-day workshop will be hosted by Professor Irene Watson, PVC (Aboriginal Leadership and Strategy) at UniSA.
Budget:
Location: Accommodation Ambelin Kwaymullina Perth to Adelaide RTN $600 1 nights @ $150 Natalie Skead Perth to Adelaide RTN $600 1 nights @ $150 Heron Loban Brisbane to Adelaide RTN $600 1 nights @ $150
8 Universities Australia, Indigenous Strategy 2017-2020 (Canberra, 2017). 9 Marcelle Burns, Anita Lee Hong, Asmi Wood ‘Indigenous Cultural Competency for Legal Academics Program: Final Report (Department of Education and Training, 2019). 10 Ibid vii. 11 CALD Minutes, 16 March 2018, (Newcastle University), 5. 12 Australian Institute of Aboriginal Torres Strait Islander Studies. (2012). Guidelines for Ethical Research in Indigenous Studies: Australian Institute of Aboriginal and Torres Straight Islander Studies.
CALD Meeting Paper Page 193 CALD Meeting - 4 Oct 2019 Item E01
Marcelle Burns Armidale to Adelaide RTB $1000 1 nights @ $150 Bill McNeill Gold Coast to Adelaide RTN $600 1 nights @ $150 Alison Gerard Bathurst to Adelaide RTN $1000 1 nights @ $150 Annette Gainsford Bathurst to Adelaide RTN $1000 1 nights @ $150 Asmi Wood Canberra to Adelaide RTN $600 1 nights @ $150 Total: $6000 $1200 Total: $7200
CALD Meeting Paper Page 194 CALD Meeting - 4 Oct 2019 Item E03(1)
Vi Kacevska
From: Vi Kacevska Sent: Tuesday, 20 August 2019 3:26 PM To: [email protected] Subject: RE: Act NOW to avoid the price rise on your domain registration!
Dear Luke
Further to our phone conversation this afternoon, I confirm that I have approved the transfer from the reseller arrangement to be directly with Go‐Hosting for the domain names of cald.asn.au and cald.org.au.
Please also update your records with my contact details for these sites.
Kind regards Vi
Vi Kacevska | Executive Coordinator Council of Australian Law Deans (CALD) T: +61 (0)438 422 919 | E: [email protected] | W: www.cald.asn.au
From: Heather Nolan
Dear Vi,
Just forwarding on a message from Go Hosting re CALD.
I hope you’re well.
Kind regards Heather
Heather Nolan EA Team Leader
Faculty of Law University of Technology Sydney T. +61 (02) 9514 3487 PO Box 123 Broadway, NSW 2007 Australia law.uts.edu.au
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CALD Meeting Paper Page 195 CALD Meeting - 4 Oct 2019 Item E03(1)
From: [email protected]
Dear Barbara,
We are writing to you to inform you about an important change that needs to happen with your domain registration(s):
cald.asn.au cald.org.au
When GoHosting started business operations in 2003, we were not yet a fully accredited .AU domain registrar, so we were required to register your domain name through a domain reseller.
In 2013, GoHosting became a direct .AU registrar, however, domains registered in that period are not able to be automatically transferred to our direct engagement, so up until now those domains have been renewed through the original reseller. However, the time has come, and it is no longer possible for us to continue renewing those domains for the same price that we can directly renew them. Because of this, we are now asking all our customers with .au domain's registered through the old arrangement to authorise us to transfer the domain to the new arrangement.
As per the .AU Domain Administration (AUDA) regulation's, we require that you approve to have your domain moved from the reseller arrangement to be direct with GoHosting. If you approve for this change to go forward, simply click the link below and then click the 'Approve' button. No other action is necessary on your part.
Approve Transfer
If you choose to ignore this email, the transfer will decline automatically. Due to our third‐party providers pricing increases and the additional administration required, if you choose to decline the transfer your domain name renewal price will increase by $10 per year. If you approve the transfer, there will be no increase to the pricing.
If you have any questions or concerns with this, please let us know by emailing [email protected] or call us on 1300 85 10 14.
All the best,
GoHosting.
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CALD Meeting Paper Page 196 CALD Meeting - 4 Oct 2019 Item E03(1) UTS CRICOS Provider Code: 00099F DISCLAIMER: This email message and any accompanying attachments may contain confidential information. If you are not the intended recipient, do not read, use, disseminate, distribute or copy this message or attachments. If you have received this message in error, please notify the sender immediately and delete this message. Any views expressed in this message are those of the individual sender, except where the sender expressly, and with authority, states them to be the views of the University of Technology Sydney. Before opening any attachments, please check them for viruses and defects. Think. Green. Do. Please consider the environment before printing this email.
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CALD Meeting Paper Page 197 CALD Meeting - 4 Oct 2019 Item E03(2)
Vi Kacevska
From: Vi Kacevska Sent: Wednesday, 21 August 2019 5:22 PM To: Gabrielle Ostberg Cc: Lesley Hitchens Subject: RE: Letter from the Dean, Melbourne Law School Attachments: List of programs accredited by the BCI - summary by law school - 210819.pdf; List of programs accredited by the BCI - summary by award type - 210819.pdf
Dear Gabrielle
I managed to squeeze this one in tonight. I’ve summarised each law school that sought BCI accreditation for the following program types:
Dual Law School LLB LLB Hons Degree/s JD Australian Catholic University Yes Yes Yes No Australian National University No Yes No Yes Flinders University Yes No No No La Trobe University Yes No No Yes Monash University No Yes Yes Yes Murdoch University Yes No No No Queensland University of No Yes No No Technology The University of Melbourne No No No Yes The University of Queensland No Yes Yes No University of New England Yes No Yes No University of South Australia Yes Yes No No University of Tasmania No No Yes No University of Wollongong Yes No No No UNSW Australia Yes No No Yes
Attached also are a couple of summary tables that provide more detail.
Hope this is helpful – let me know if you require anything else in the meantime.
Kind regards Vi
Vi Kacevska | Executive Coordinator Council of Australian Law Deans (CALD) T: +61 (0)438 422 919 | E: [email protected] | W: www.cald.asn.au
From: Gabrielle Ostberg
Enormous thanks, Vi, it’s very much appreciated! 1
CALD Meeting Paper Page 198 CALD Meeting - 4 Oct 2019 Item E03(2)
Kind regards
Gabrielle
Gabrielle Östberg | Executive Officer Melbourne Law School University Square, Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia T: +61 3 9035 3202 E: [email protected]
From: Vi Kacevska Sent: Wednesday, 21 August 2019 3:42 PM To: Gabrielle Ostberg
Dear Gabrielle
As discussed, I will compile a table of the programs for each of the 14 Australian law schools that sought to be accredited by the BCI. I might run out of time this afternoon to complete this task in full but I will endeavour to have the table to you before the end of this week.
Kind regards Vi
Vi Kacevska | Executive Coordinator Council of Australian Law Deans (CALD) T: +61 (0)438 422 919 | E: [email protected] | W: www.cald.asn.au
From: Gabrielle Ostberg
Dear Vi
Many thanks for sourcing the details.
As discussed just now, when you have the capacity, we’d be most grateful if you would be able to extract from the other law schools’ submissions the specific degrees offered at the time of application for accreditation, and therefore the specific degrees which should in turn be listed in the BCI ‘List of Foreign Universities…Recognized’ document attached.
Having again sought DFAT’s assistance, we received confirmation yesterday that a meeting in Delhi between the BCI and Colin Picker has been arranged for Friday 5 September at 3.30pm. If we are able to email to the BCI the details of amendments sought to the document prior to Colin’s visit, and also for Colin to raise the amendments in the meeting itself, we are hopeful that we may see some action on BCI’s part.
Many thanks again for all your assistance.
G 2
CALD Meeting Paper Page 199 CALD Meeting - 4 Oct 2019 Item E03(2)
Kind regards
Gabrielle
Gabrielle Östberg | Executive Officer Melbourne Law School University Square, Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia T: +61 3 9035 3202 E: [email protected]
From: Vi Kacevska Sent: Wednesday, 21 August 2019 10:46 AM To: Gabrielle Ostberg
Dear Gabrielle
My understanding of the process was that each law school submitted information as requested by the BCI in a template provided by Lynette Cucinotta (the then EO of CALD) as per the attached email dated 18 Nov 2015. The submissions were then collated and would have been emailed by Carolyn Evans directly to the BCI.
Attached for your information is MLS’ submission dated 8 Dec 2015 together with the BCI accreditation letter dated 14 Jun 2016. Upon reviewing the BCI accreditation letters to each of the 14 law schools that were visited in 2015, it would appear that the BCI has accredited each law school with the LLB and/or dual LLB and/or JD programs.
I am copying in Professor Lesley Hitchens as the CALD Chair for comment and actions if any that are required from CALD to the BCI directly.
Hope that this is helpful in the meantime.
Kind regards Vi
Vi Kacevska | Executive Coordinator Council of Australian Law Deans (CALD) T: +61 (0)438 422 919 | E: [email protected] | W: www.cald.asn.au
From: Gabrielle Ostberg
Dear Vi
I hope this finds you well!
I have a CALD query that I hope you can help with please? It’s to work out what degrees were sought for accreditation with BCI in 2015. Per the below, we are pleased to discover that the accreditation is finally recognised, however ours is recognised as an LLB not JD, and there may be other law schools with the same issue. Do you happen to have access to a list of the degrees put forward for recognition at that time please? I appreciate it may all be ancient history and we may need to approach individuals schools, but thought it worth checking nonetheless. If there are other
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CALD Meeting Paper Page 200 CALD Meeting - 4 Oct 2019 Item E03(2) schools who should have a JD and/or LLB recognised, we can seek to rectify those at the same time as we rectify the one for MLS.
Happy to chat if that’s easier.
Many thanks
G
Kind regards
Gabrielle
Gabrielle Östberg | Executive Officer Melbourne Law School University Square, Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia T: +61 3 9035 3202 E: [email protected]
From: Pip Nicholson Sent: Wednesday, 14 August 2019 12:04 PM To: Gabrielle Ostberg
Ps ask Amy to see if she. An find docs. Or approach Vi as cald executive secretariat for their docs. Vi was involved in this work as Carolyn’s aeA alsop
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From: Gabrielle Ostberg
Dear Pip
I have just drafted, and was about to send, an email to each of Colin Picker and Claire Ripley to progress this, when I thought to check the BCI website again. I was surprised to see that, on the page titled ‘Foreign universities whose degrees in law are recognised by the Bar Council of India’, there is now a link to a document titled, ‘List of Foreign Universities Whose Degrees in law Recognized By the Bar Council of India: As on 16.07.2019’ (also attached).
For Australia, this document lists 14 law schools as accredited at a BCI meeting on 5 December 2015, being the same 14 who were involved in the BCI visit in 2015 (including MLS and Wollongong). My concern is that our degree is listed as an LLB rather than a JD. I note that all other law schools accredited at the same time are also accredited for LLBs alone, though I have not been able to reconcile this against any information showing who sought to have what type of degree recognised. Only Monash and ANU leap out as potentially having sought to have their JD recognised (Bond and UWA were not included in the 14 schools), though I may have overlooked a law school offering a JD.
Once you’ve had a look at it, please let me know your thoughts. It may be that we can track down the list of degrees sought for accreditation through CALD/Vi and reconcile them against the BCI document and then draft another letter to BCI requesting a correction? Once you’ve had a chance to consider it, I will update Colin.
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With thanks
G
Kind regards
Gabrielle
Gabrielle Östberg | Executive Officer Melbourne Law School University Square, Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia T: +61 3 9035 3202 E: [email protected]
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Summary of BCI Accreditation of Programs
No of Awards Award Type offered LLB 9 Australian Catholic University 2 Flinders University 1 La Trobe University 1 Murdoch University 1 University of New England 1 University of South Australia 1 University of Wollongong 1 UNSW Australia 1
LLB Hon 5 Australian National University 1 Monash University 1 Queensland University of Technology 1 The University of Queensland 1 University of South Australia 1
Dual 29 Australian Catholic University 7 Monash University 7 The University of Queensland 6 University of New England 8 University of Tasmania 1
JD 5 Australian National University 1 La Trobe University 1 Monash University 1 The University of Melbourne 1 UNSW Australia 1
Grand Total 48
CALD Meeting Paper Page 203 CALD Meeting - 4 Oct 2019 Summary of BCI Accreditation of Programs Item E03(2)
Law School Award Title LLB Honours notes Notes Total Australian Catholic University 9 LLB Bachelor of Laws Yes, pending approval in Dec 2015 3 year grad entry 1 4 year UG degree 1 Dual Bachelor of Arts/Bachelor of Laws Yes, pending approval in Dec 2015 1 Bachelor of Biomedical Science/Bachelor of Laws Yes, pending approval in Dec 2015 1 Bachelor of Business Administration/Bachelor of Laws Yes, pending approval in Dec 2015 1 Bachelor of Commerce/Bachelor of Laws Yes, pending approval in Dec 2015 1 Bachelor of Global Studies/Bachelor of Laws Yes, pending approval in Dec 2015 1 Bachelor of Psychological Science/Bachelor of Laws Yes, pending approval in Dec 2015 1 Bachelor of Theology/Bachelor of Laws Yes, pending approval in Dec 2015 1
Australian National University 2 LLB Hon Bachelor of Laws (Honours) Only LLB Hon offered; 4 year UG Yes degree or 5 year double degree 1 JD Juris Doctor 1
Flinders University 1 LLB Bachelor of Laws 1
La Trobe University 2 LLB Bachelor of Laws 1 JD Juris Doctor 1
Monash University 9 LLB Hon Bachelor of Laws (Honours) Yes 1 Dual Bachelor of Laws (Honours) and Bachelor of Arts Yes 1 Bachelor of Laws (Honours) and Bachelor of Biomedical S Yes 1 Bachelor of Laws (Honours) and Bachelor of Commerce Yes 1 Bachelor of Laws (Honours) and Bachelor of Engineering Yes 1 Bachelor of Laws (Honours) and Bachelor of Global Studi Yes 1 Bachelor of Laws (Honours) and Bachelor of Music Yes 1 Bachelor of Laws (Honours) and Bachelor of Science Yes 1 JD Master of Laws (JD) 1
CALD Meeting Paper Page 204 CALD Meeting - 4 Oct 2019 Law School Award Title LLB Honours notes Notes Total Item E03(2) Murdoch University 1 LLB Bachelor of Laws 1
Queensland University of Technology 1 LLB Hon Bachelor of Laws (Honours) 4 years full time 1
The University of Melbourne 1 JD Juris Doctor 1
The University of Queensland 7 LLB Hon Bachelor of Laws (Honours) Submission made directly to BCI ‐ co 1 Dual Arts/Laws (Honours) Submission made directly to BCI ‐ Yes courses taken from website 1 Submission made directly to BCI ‐ Business Management/Laws (Honours) Yes courses taken from website 1 Submission made directly to BCI ‐ Commerce/Laws (Honours) Yes courses taken from website 1 Submission made directly to BCI ‐ Economics/Laws (Honours) Yes courses taken from website 1 Submission made directly to BCI ‐ Journalism/Laws (Honours) Yes courses taken from website 1 Submission made directly to BCI ‐ Science/Laws (Honours) Yes courses taken from website 1
University of New England 9 LLB Bachelor of Laws 3 years or 4 years full time 1 Dual Bachelor of Agriculture/Bachelor of Laws 5 years full time 1 Bachelor of Arts/Bachelor of Laws 5 years full time 1 Bachelor of Business/Bachelor of Laws 5 years full time 1 Bachelor of Computer Science/Bachelor of Laws 5 years full time 1 Bachelor of Criminology/Bachelor of Laws 5 years full time 1 Bachelor of Economics/Bachelor of Laws 5 years full time 1 Bachelor of Environmental Science/Bachelor of Laws 5 years full time 1 Bachelor of Science/Bachelor of Laws 5 years full time 1
University of South Australia 2 LLB Bachelor of Laws 1 LLB Hon Bachelor of Laws (Honours) 1
CALD Meeting Paper Page 205 CALD Meeting - 4 Oct 2019 Law School Award Title LLB Honours notes Notes Total Item E03(2)
University of Tasmania 1 Dual Bachelor of Arts and Bachelor of Laws No 5 years full time 1
University of Wollongong 1 LLB Bachelor of Laws 1
UNSW Australia 2 LLB Bachelor of Laws 1 JD Juris Doctor 1
Grand Total 48
CALD Meeting Paper Page 206 CALD Meeting - 4 Oct 2019 Item E03(3)
Vi Kacevska
From: GoHosting Pty Ltd Technical Support
Categories: CALD Correspondence
Hi Vi,
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Enjoy the rest of your afternoon!
Kind regards, Luke
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CALD Meeting Paper Page 207 CALD Meeting - 4 Oct 2019 Item E03(3)
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CALD Meeting Paper Page 208 CALD Meeting - 4 Oct 2019 Item E03(4)
Vi Kacevska
From: Gabrielle Ostberg Sent: Friday, 30 August 2019 5:43 PM To: Lesley Hitchens Cc: Pip Nicholson; Vi Kacevska Subject: India Accreditation Attachments: 20190829 - List-of-Foreign-Universities-16-July-2019 - CALD markup.docx
Categories: CALD Perth meeting, CALD
Dear Lesley
I write in regard to Pip’s International Report provided for the CALD meeting on Wednesday and concerning the recognition of Australian universities accredited in India in 2015.
We would now like to circulate a copy of the Bar Council of India’s ‘List of Foreign Universities Whose Degrees in law Recognized By the Bar Council of India: As on 16.07.2019’ to the law schools who sought accreditation, seeking their review of the document, and the specific law degrees recognised for each school.
I understand that at the CALD meeting, the Deans of UTS and Bond raised the concern that their schools appeared on the BCI document though they did not seek accreditation in 2015. I note that the document includes all accredited law schools, not just those accredited in 2015, with the accreditation entries for UTS and Bond listing accreditation in 2009 and 2006 respectively. Given that, I don’t see a need to amend the entries for those schools, but please let me know if we’ve misunderstood the discussion that took place.
We have prepared a draft email for review, and seek your guidance as to whether you would like to send the email to members (or Vi to send on your behalf), or whether you would prefer the email came from Pip?
… To: Deans of ACU, ANU, Murdoch, UNISA, UNSW, UTAS, Monash, La Trobe, UNE, Flinders, QUT, UQ CC: Deans of UOW, MLS Subject: Bar Council of India | accreditation details | response requested by Fri 6 Sept
Dear Colleagues
After numerous pieces of correspondence from Professor Pip Nicholson in her capacity as Chair, Standing Committee on International Matters, and with assistance from the Australian High Commission, the Bar Council of India (BCI) website now includes a link to a document titled, ‘List of Foreign Universities Whose Degrees in law Recognized By the Bar Council of India: As on 16.07.2019’. This document lists the 14 law schools who applied for recognition in 2015 as approved at a BCI meeting on 5 December 2015.
Unfortunately, the specifics of several of the law degrees recognised in that document now require amendment, with a number of the degrees offered being incorrectly named. For example, the graduate LLB is approved at MLS when it in fact a JD that is taught and no graduate LLB exists. For other universities, only a generic LLB has been approved and not the details of combined degrees. We have prepared a mark‐up of the document detailing a number of proposed amendments, but seek your assistance to confirm the details are correct. We request that you please review the ‘Degrees in Law’ column on the right hand side of the attached document for your school, nominating any amendments required to Vi Kacevska by close of business Friday, 6 September.
We intend to share our request for amendments with the BCI following a planned meeting between Professor Colin Picker and Mr Srimanto Sen (Secretary, BCI) on Friday 6 September in Delhi. At this meeting, the reaccreditation by the BCI of Australian law schools will be discussed so that it can be effected more
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CALD Meeting Paper Page 209 CALD Meeting - 4 Oct 2019 Item E03(4) expeditiously, noting the current accreditation expires at the end of the 2020/2021 India academic year. Professor Picker will also raise the issue of the various amendments sought to the document noted above.
With thanks in anticipation.
Kind regards …
Please let us know your thoughts.
With thanks.
Kind regards
Gabrielle
Gabrielle Östberg | Executive Officer Melbourne Law School University Square, Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia T: +61 3 9035 3202 E: [email protected] unimelb.edu.au | facebook.com/unimelb | twitter.com/unimelb
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CALD Meeting Paper Page 210 CALD Meeting - 4 Oct 2019 Item E03(4) – 1 –
List of Foreign Universities Whose Degrees in law Recognized By the Bar Council of India
As on 16.07.2019 Conditions
The Degrees in law from the following Universities in abroad enjoy recognition by the Bar Council of India provided:
(i) The students have undergone a regular law course after graduation in the pattern of 10+2+3+3 or a 5 year course in the pattern of 10+2+5
(ii) The following conditions are applicable for all Universities in abroad
(a) Three years’ LLB degree only if taken after a three years’ bachelor degree course in any subject (that is after obtaining BA / BSc /BCom /BBA); or
(b) Three Years’ LL.B. course followed immediately by 1 year whole time LPC/BVC and followed by a contract of service with a Law Firm for two years to be entitled to be enrolled as a solicitor or take pupilage for a year in a Chamber of a qualified Barrister to be a Master, or
(c) Four Years’ of LLB jointly with another subject like Finance, Accounts, Management or a Language to be immediately followed by one year full time LPC/BVC from a College of Inns of courts/ Solicitors Society or a Master degree in Law.
---0--- Note : Only the regular study of three year law degrees will be allowed. No Diploma courses, two year law degrees and External degrees imparted by these Universities are allowed.
CALD Meeting Paper Page 211 CALD Meeting - 4 Oct 2019 Item E03(4) – 2 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 1. AUSTRALIA 1. MELBOURNE LAW SCHOOL, Item.No.83/2001(LE) LL. B. DegreeJD Degree THE UNIVERSITY OF MELBOURNE, LE Mtg. 5th Oct., 2001. MELBOURNE. Latest Approval :
Council mtg:5/12/2015 Resolution No. 285/2015 2. NATHAN CAMPUS, GRIFFTH UNIVERSITY, 74/2006 LL. B. three year Degree BRISBANE 3. SCHOOL OF LAW, BOND UNIVERSITY, GOLD 74/2006 LL. B. three year Degree COAST 4. QUEENSLAND UNIVERSITY OF TECHNOLOGY, 74/2006 LL. B. three year (Hons.) Degree BRISBANE Latest Approval :
Council mtg:5/12/2015 Resolution No. 285/2015 5. THE UNIVERSITY OF SOUTH WALES, SYDNEY 74/2006 LL. B. three year Degree 65. THE AUSTRALIAN NATIONAL UNIVERSITY, 74/2006 LL. B. three year(Hons.) Degree CANBERRA and JD Degree Latest Approval :
Council mtg:5/12/2015 Resolution No. 285/2015 76. UNIVERSITY OF ADELAIDE Item No.24/2009 (LE) LL. B. Degree 87. UNIVERSITY OF FLINDERS Item No.24/2009 (LE) LL. B. Degree
Latest Approval :
Council mtg:5/12/2015 Resolution No. 285/2015
CALD Meeting Paper Page 212 CALD Meeting - 4 Oct 2019 Item E03(4) – 3 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 98. UNIVERSITY OF MONASH Item No.24/2009 (LE) LL. B. (Hons.) Degree, Dual LL. B. Degrees and JD Degree Latest Approval :
Council mtg:5/12/2015 Resolution No. 285/2015 109. UNIVERSITY OF SOUTHERN CROSS Item No.24/2009 (LE) LL. B. Degree 1110 UNIVERSITY OF SYDNEY Item No.24/2009 (LE) LL. B. Degree 1211 UNIVERSITY OF TASMANIA Item No.24/2009 (LE) Dual LL. B. Degree . Latest Approval :
Council mtg:5/12/2015 Resolution No.285/2015 1312 UNIVERSITY OF TECHNOLOGY, SYDNEY Item No.24/2009 (LE) LL. B. Degree 1413 LA TROBE CITY CAMPUS Council mtg:5/12/2015 LL. B. Degree and JD Degree . Resolution No. 285/2015 1514 AUSTRALIAN CATHOLIC UNIVERSITY : Council mtg:5/12/2015 LL. B. Degree and Dual LL. B. . THOMAS MORE ACADEMY OF LAW Resolution No. 285/2015 Degrees 1615 TC BEIRNE SCHOOL OF LAW, THE UNIVERSITY Council mtg:5/12/2015 LL. B. (Hons.) Degree and Dual . OF QUEENSLAND Resolution No. 285/2015 LL. B. Degrees 1716 SCHOOL OF LAW, UNIVERSITY OF NEW Council mtg:5/12/2015 LL. B. Degree and Dual LL. B. . ENGLAND Resolution No. 285/2015 Degrees 1817 SCHOOL OF LAW, UNIVERSITY OF Council mtg:5/12/2015 LL. B. Degree, LL. B. (Hons.) . WOLLONGONG Resolution No. 285/2015 Degree and Dual LL. B. Degrees 1918 UNSW LAW, UNSW Council mtg:5/12/2015 Dual LL. B. Degrees and JD . Resolution No. 285/2015 Degree 201 SCHOOL OF LAW, MURDOCH UNIVERSITY Council mtg:5/12/2015 LL. B. Degree 9. Resolution No. 285/2015 212 UNIVERSITY OF SOUTH AUSTRALIA Council mtg:5/12/2015 LL. B. Degree and LL. B. (Hons.) 0. Resolution No. 285/2015 Degree
CALD Meeting Paper Page 213 CALD Meeting - 4 Oct 2019 Item E03(4) – 4 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 2. BANGLADESH 1. RAJASHAHI UNIVERSITY 48/1965 Degree in Law [Erstwhile East Pakistan 2. DACCA UNIVERSITY 48/1965 Degree in Law and now Bangladesh] 3. CHITTAGONG UNIVERSITY 11/1976 (LE) LL. B. Degree 3. CANADA 1. SASKAT CHEWAN UNIVERSITY 82/1982 LL. B. Degree 2. UNIVERSITY OF ALBERTA 102/1991 LL. B. Degree 3. UNIVERSITY OF WINDSOR, ONTARIO Item. No. 23/2006(LE) LL.B. Degree 4. FRANCE 1. LAW SCHOOL, UNIVERSITY OF NANTERRE, LA Item. No. 247/2015 (BCI) LLB(Hons) Degree DEFENSE, PARIS, BCI.Mtg. 25.7.2015 5. IRELAND 1. UCD SUTHERLAND SCHOOL OF LAW, Item No. 60/2017 Three year LLB degrees BELFIELD, DUBLIN 4, IRELAND BCI.Mtg. 1/3/2017 2. SCHOOL OF LAW, UNIVERSITY OF LIMERICK, Resolution No: 222/2017 Three year and Four year Law LIMERICK, IRELAND Council Mtg : 28.10.2017 degrees 6. MYANMAR 1. RANGOON UNIVERSITY a. 45/1965 Degree in Law (prior to 4.1.48) [Erstwhile Barmah] b. 105/1972 B. L. Degree (taken in 1957) c. 79/1973 Degree in Law 7. NEPAL 1. TRIBHUVAN UNIVERSITY a. 38/1966 Law Degree b. 162/1967 Law Degree c. 26/1976 (LE) Law Degree d. 5/1978 (LE) Law Degree e. Item. No.19/1987 LL. B. Degree (LE) 8. PAKISTAN 1. KARACHI UNIVERSITY 46/1971 LL. B. Degree 2. PUNJAB UNIVERSITY, LAHORE 76/1966 Degree in Law 3. UNIVERSITY OF SIND 100/1969 Degree in Law 9. POLAND 1. UNIVERSITY OF STAPHEN BATROI, IRWILUS 17/1974 Master of Law (Magister Juris) 10. SINGAPORE 1. UNIVERSITY OF SINGAPORE 100/1969 Degree in Law 11. SOUTH KOREA 1. HANDONG INTERNATIONAL LAW SCHOOL, Item No. 55/2007(LE) Master of Law Degree HANDONG GLOBAL UNIVERSITY, POHANG, SOUTH KOREA 12. UGANDA 1. MAKARERE UNIVERSITY, KAMPALA 18/1974 LL.B. Degree 13. UNITED KINGDOM 1. BUCKINGHAM UNIVERSITY 68/1993 LL. B. Degree 2. CITY UNIVERSITY OF LONDON 96/1980 Now it is pending
CALD Meeting Paper Page 214 CALD Meeting - 4 Oct 2019 Item E03(4) – 5 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 3. COUNCIL FOR NATIONAL ACADEMIC AWARDS 86/1978 & B.A. Degree in Law. & 14/1990 LL.B (Hons.) Degree 4. HULL UNIVERSITY 21/1990 LL. B. Degree 5. INNS OF COURTS SCHOOL OF LAW 68/1978 Three year law course 6. LEEDS UNIVERSITY 41/1972 LL.B. Degree 7. LEICESTER UNIVERSITY Item. No. 56/2001(LE) LL.B. Degree Le. Mtg. 31st May & 1st June, 2001 8. LONDON UNIVERSITY a. 4A/1970, 37/1983 LL.B. Degree b. 15/1990 LL.B. Degree (External) Prior to 10th & 11th February, 1990 9. OXFORD UNIVERSITY 116/1969 LL.B. Degree 10. CAMBRIDGE UNIVERSITY 116/1969 B. A. Degree in law 11. THAMES VALLEY UNIVERSITY (The University 47/2000 LL.B (Hons.) Degree of West London) by Item No.53/2012 – D (LE) LEC mtg : 22nd September, 2012. 12. UNIVERSITY OF WALES COLLEGE OF CARDIFF a. 17/1988 LL.B. Degree b. 21/1991 LL.B. Degree (modification of 17/1988) 13. UNIVERSITY OF BIRMINGHAM 14/1990 LL.B. Degree 14. UNIVERSITY OF LANCASTER 14/1990 LL.B. Degree 15. UNIVERSITY OF HERTFORDSHIRE 43/2000 LL.B. (Hons.) Degree 16. UNIVERSITY OF DURHAM 46/2000 LL.B. Degree 17. UNIVERSITY OF LIVERPOOL 19/2001 LL.B. Degree 18. UNIVERSITY OF WARWICK Item No.27/2001 (LE) LL.B. Degree LE Mtg. 30.03.2001 19. UNIVERSITY OF BRISTOL Item No.24/2006 (LE) LL.B. Degree 20. EAST ANGLIA UNIVERSITY Item No.38/2006 (LE) LL.B. (Hons.) Degree 21. NOTTINGHAM UNIVERSITY Item No.108/2007 (LE) LL.B. (Hons.) Degree 22. UNIVERSITY OF MANCHESTER Item No.7/2008 (LE) LL.B. Degree 23. BANGOR UNIVERSITY Item No.21/2008 (LE) LL.B. Degree
CALD Meeting Paper Page 215 CALD Meeting - 4 Oct 2019 Item E03(4) – 6 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 24. KINGSTON UNIVERSITY, LONDON Item No.43/2008 (LE) LL.B. Degree 25. UNIVERSITY OF WOLVERHAMPTON SCHOOL Item No.44/2008 (LE) LL. B. (Hons.) Degree OF LEGAL STUDIES 26. SCHOOL OF LAW, UNIVERSITY OF SHEFFIELD, Item No.45/2008 (LE) LL. B. (Hons.) Degree U. K. 27. KENT LAW SCHOOL, UNIVERSITY OF KENT, Item No.46/2008 (LE) LL. B. (Hons.) Degree CANTERBURY 28. SCHOOL OF LAW, UNIVERSITY OF EAST Item No.46/2008 (LE) LL. B. (Hons.) Degree LONDON 29. SCHOOL OF LAW, UNIVERSITY OF Item No.46/2008 (LE) LL. B. (Hons.) Degree SOUTHAMPTON 30. UNIVESITY OF WEST MINSTER Item No.63/2009 (LE) LL.B. Degree 31. BRUNEL LAW SCHOOL, BRUNEL UNIVERSITY, Item No.44/2009 (LE) LL.B. Degree WEST LONDON 32. SCHOOL OF LAW, BIRMINGHAM CITY Item No.67/2009 (LE) LL.B. (Hons.) Degree UNIVERSITY 33. NORTHUMBRIA UNIVERSITY, NEWCASTLE Item No.46/2012 (Cl.) Three year and five year under UPON TYNE Mtg. dated 31.03.2012 graduate law courses 34. LANCASHIRE LAW SCHOOL, UNIVESITY OF Item No.46/2012 (Cl.) Three year graduate entry LL.B. CENTRAL LANCASHIRE, PRESTON Mtg. dated 31.03.2012 (Hons.) Senior Status/LPC and 6 year undergraduate entry B. A. (Hons.) Combined law subject and LL.B. (Hons.) Senior Status/ LPC 35. SCHOOL OF LAW, SWANSEA UNIVERSITY, Item no.71/2012 (Cl.) Law Degree LL.B. (Hons.) SWANSEA, U. K. Mtg. dated 18.05.2012 36. SCHOOL OF LAW, UNIVERSITY OF EXETER, UK BCI.Mtg. 8th July, 2012 Law Degrees 37. BPP UNIVERSITY COLLEGE, LONDON Item No. 216/2013(Cl.) Law Degree Resolution No. 150/2013 Mtg. Dated : 28/7/2013 38. SCHOOL OF LAW, UNIVERSITY OF READING, BCI.Mtg. 29th June, 2014 LLB(Hons) UK
CALD Meeting Paper Page 216 CALD Meeting - 4 Oct 2019 Item E03(4) – 7 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 39. SCHOOL OF LAW, UNIVERSITY OF BCI.Mtg. 13th July, 2014 LLB Degree NORTHAMPTION, UK 40. ANGLIA LAW SCHOOL, ANGLIA RUSKIN BCI.Mtg. 23rd August, LLB degree UNIVERSITY, CAMBRIDGE, UK 2014 41. DEPARTMENT OF LAW AND CRIMINOLOGY, BCI.Mtg. 23rd August, LLB degree PRIFYSGOL ABERYSTWYTH UNIVERSITY, 2014 PENGLAIS CAMPUS, ABERYSTWYTH, CEREDIGION WALES, UK 42. LAW SCHOOL, UNIVERSITY OF BRISTOL, BCI.Mtg. 21st February, Three year LLB (Hons). BRISTOL, UK 2015 43. SCHOOL OF LAW, SUSSEX UNIVERSITY, BCI.Mtg. 21st February, Three year LLB (Hons). BRINHTON, UK 2015 14. UNITED STATES OF 1. CORNELL LAW SCHOOL 16/1988 Doctor of Law Degree (J. D.) AMERICA 2. GEORGE TOWN UNIVERSITY 44/2000 Juries Doctor Degree 3. SOUTH WESTERN UNIVERSITY 98/1988 Juries Doctor Degree (J. D.) 4. UNIVERSITY OF MICHIGAN 87/1993 Juries Doctor Degree 5. UNIVERSITY OF TEXAS 42/2000 Degree of Doctor of Jurisprudence 6. MARSHALL THE SCHOOL OF LAW OF THE Item No.22/2006 (LE) Juries Doctor COLLEGE OF WILLIAM AND MARY, VIRGINIA, USA 7. SYRACUSE UNIVERSITY COLLEGE OF LAW, Item No.54/2007 (LE) Juries Doctor NEW YORK, USA 8. WIDENER UNIVERSITY SCHOOL OF LAW, Item No.53/2008 (LE) LL.B. Degree WILMINGTON 9. CLEVELAND-MARSHALL COLLEGE OF LAW, Item No.54/2008 (LE) J. D. Degree CLEVELAND STATE UNIVESITY 10. UNIVESITY OF PENNSYLVANIA LAW SCHOOL, Item No.55/2008 (LE) LL.B. Degree PHILADELPHIA 11. UNIVERSITY OF WISCONSIN Item No.18/2009 (LE) J. D. Degree 12. UNIVESITY OF CALIFORNIA, BERKELEY Item No.23/2009 (LE) 3 year law degree (Juries Doctor) 13. FORDHAM UNIVERSITY, NEW YORK Item No.32/2009 (LE) J. D. Degree
CALD Meeting Paper Page 217 CALD Meeting - 4 Oct 2019 Item E03(4) – 8 –
Sl. No. Country Name Name of the University Resolution Number Degrees in Law 14. SCHOOL OF LAW, LOYOLA UNIVERSTIY, Item No.43/2009 (LE) Degree of Juries Doctor CHICAGO 15. SCHOOL OF LAW, SANTA CLARA UNIVERSTIY, Item No.45/2009 (LE) Juries Doctor Programme CALIFORNIA 16. SCHOOL OF LAW, HOFSTRA UNIVERSITY, NEW Item No.46/2009 (LE) Juries Doctor YORK 15. Zambia 1. UNIVERSITY OF ZAMBIA 46/1980 LL.B. Degree
*****
CALD Meeting Paper Page 218 CALD Meeting - 4 Oct 2019 Item E03(5)
Vi Kacevska
From: Lesley Hitchens
Follow Up Flag: Follow up Flag Status: Flagged
Categories: CALD Correspondence
Dear Gabrielle, Thanks for your email. At the CALD executive – Nick (Bond) and I (UTS) mentioned that we had been surprised to see our degrees listed because we had understood that the recognition of degrees accredited under the previous process had been cancelled. If it is an error by the BCI, it is in our favour, and in that sense not a problem! So, no, no need to correct. The curious aspect is what happens about reaccreditation? It would seem that we should have gone through a reaccreditation process by now; hopefully, we can slip into the 2021 process. When we were accredited in the earlier process, BCI would not recognise the JD – so it good to see that the Council’s attitude has changed.
Re the draft email, this should come from Pip but it would be useful to copy in Vi, so that CALD records are able to be ‘in the loop’.
Many thanks, Lesley
Professor Lesley Hitchens GAICD Chair, Council of Australian Law Deans (CALD)
Dean Faculty of Law, University of Technology Sydney Postal Address: PO Box 123, Broadway NSW 2007, Australia Ph: 61 + (2) 9514 3487 Fax: 61 + (2) 9514 3488 Mobile: 61 + (0) 491 156 419 Email: [email protected]
We at UTS Faculty of Law pay our respects to the Traditional Custodians of the lands and waters upon which we live and work, and to their Elders both past and present. We acknowledge them as the Traditional Custodians of Country and Knowledge for these places. We recognise the strengths of Indigenous Australians and we seek to work with Indigenous communities to ensure that the Anglo-Australian legal system advances Indigenous self-determination.
From: Gabrielle Ostberg
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CALD Meeting Paper Page 219 CALD Meeting - 4 Oct 2019 Item E03(6)
Vi Kacevska
Subject: RE: CALD Quality Law Journal Pilot
From: CQ University
Dear Deans, I am writing to you in my capacity as Chair of the CALD Legal Research Committee. As part of the preparations for the CALD Quality Law Journal Pilot survey, it is prudent to conduct a final check of the 821 academics who have been identified as satisfying the Australian Peer Review eligibility requirements and also the single FoR Classification and Descriptor of each journal included in the pilot.
Details of the 821 Academic Peer reviewers have been circulated to LADRN for comment and update by 20.09.2019. The Australian Peer Review list is attached for information. Should you have any queries or updates, other than those raised by your representatives on LADRN, please email me prior to 20.09.2019. The eligibility requirements for Australian Peer Reviewers are as follows:
Employed at Australian law schools that are members of CALD Engaged as full‐time academic staff at senior lecturer or above, on a continuing contract or a fixed‐term contract of 12 months or more Required as part of their role to conduct research
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CALD Meeting Paper Page 220 CALD Meeting - 4 Oct 2019 Item E03(6) Published at least four ERA‐recognised publications in law or legal studies in the past three calendar years
All 156 Australian Law Journals included in the pilot have been classified according to revised FoR codes and Descriptors taking into account the LADRN/CALD ANZSRC submissions. Each journal has one FoR code and Descriptor that best fits its content. These codes and descriptors are currently being checked by LADRN and will also be finalised by 20.09.2019. I have attached the list of journals, For codes and Descriptors. Should you have any comments these need to be received by me before 20.09.2019 at which date the classifications will close.
It is anticipated that the survey will be released prior to the CALD meeting on 04.10.2019.
Regards Stephen Colbran
‐‐
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Dean of Law | School of Business and Law CQUniversity Australia, 160 Ann Street, Brisbane City, QLD 4000 | M +61 409 305 235 | E [email protected] | Skype stephen.colbran
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CALD Meeting Paper Page 221 CALD Meeting - 4 Oct 2019 Item E03(7)
Vi Kacevska
From: Lesley Hitchens
Categories: CALD Perth meeting
Dear Pip, Apologies for being slow to respond. I hadn't been aware of this problem. However, my AD I tells me that it is indeed a problem. I think it is appropriate that CALD supports this and it can be reported to the meeting. Could you make sure a copy of the letter goes to Vi so that she can include it in correspondence, and I'm assuming you will want to mention it in your report. Kind regards, Lesley
From: Pip Nicholson
Dear Lesley
I write to see if a draft letter attached going to the Minister‐ Counsellor for Education, Australian Embassy in Beijing might be supported by CALD or whether you prefer it just to come from MLS. The issue is how Australian JDs are characterised in China. This matter has been ticking away and we now have clarity about what we should do.
By way of background, some time ago MLS was investigating a proposed change by the China Service Centre for Scholarly Exchange of the form of recognition of the Australia JD degree. This issue was brought to my attention by our students. Our first inquiry revealed that the proposed changes were to recognition of both the Australian and US JDs. The Education section of the Australian Embassy in Beijing responded to our query saying that the Ministry had suspended implementation of its original proposal pending further research.
The PVC (China) at UOM who is a lawyer, Prof Sarah Biddulph, subsequently followed up with the students who were active and concerned about this issue‐ they wrote a petition to Chinese Ministry of Education about this issue ‐ and obtained some of the documentation which was the basis of their concerns. Sarah has drafted a follow up letter to the Minister‐ Counsellor for Education in our Beijing post, Brooke Hartigan, a draft of which is attached.
I think it assists all those law schools offering a JD to join in support of this correspondence. CALD as the peak representative body could be supportive on their behalf.
Let me know if you have any queries and whether you want CALD cited as supporting this.
Cheers
Pip
Professor Pip Nicholson | Dean William Hearn Professor of Law Melbourne Law School Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia 1
CALD Meeting Paper Page 222 CALD Meeting - 4 Oct 2019 Item E03(7) T: +61 3 8344 6172 E: [email protected] law.unimelb.edu.au | facebook.com/MelbourneLawSchool | twitter.com/unimelb
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From: Sarah Biddulph
Dear Pip
You may recall that some time ago we were investigating a proposed change by the China Service Centre for Scholarly Exchange of the form of recognition of eh Australia JD degree. Our first inquiry revealed that the proposed changes were to recognition of both the Australian and US JDs. The Education section of the Australian Embassy in Beijing responded to our query saying that the Ministry had suspended implementation of its original proposal pending further research.
I have subsequently followed up with the students who were active and concerned about this issue‐ they wrote a petition to Chinese Ministry of Education about this issue ‐ and obtained some of the documentation which was the basis of their concerns. I have drafted a follow up letter to the Minister‐ Counsellor for Education in our Beijing post, Brooke Hartigan, a draft of which is attached.
When I sent it to colleagues in Chancellery International for comment, a suggestion was to find out whether this was an issue of concern to all Australian Law Schools, and if so whether it might be more effective to speak with one voice rather than just pursuing this as an MLS inquiry.
I wonder if this is something you think appropriate to raise with CALD?
I am happy to proceed either way.
Kind regards Sarah
Sarah Biddulph
Professor Assistant Deputy Vice Chancellor‐ International (China) Director, Asian Law Centre
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CALD Meeting Paper Page 223 CALD Meeting - 4 Oct 2019 Item E03(7) Melbourne Law School | The University of Melbourne | Victoria 3010 Australia T: +61 3 8344 1015 | E: [email protected] | W: http://www.law.unimelb.edu.au/alc
Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which the law school stands. We pay our respects to their Elders both past and present.
From: Sarah Biddulph Sent: Friday, 6 September 2019 5:11 PM To: Vivienne Bath
Hi Vivienne
Our JD students have been particularly concerned about a proposed (now stalled) change to the way the JD degree is certified in China. I have done some work on unpicking the problem and have drafted an email to Brooke Hartigan (Education Counsellor in the Australian Embassy). I am sending the draft email – attached as a word document and the other back up documentation. Are you aware of this issue? Is it a concern?
I hope this finds you well
All my best Sarah
Sarah Biddulph
Professor Assistant Deputy Vice Chancellor‐ International (China) Director, Asian Law Centre
Melbourne Law School | The University of Melbourne | Victoria 3010 Australia T: +61 3 8344 1015 | E: [email protected] | W: http://www.law.unimelb.edu.au/alc
Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which the law school stands. We pay our respects to their Elders both past and present.
From: Sarah Biddulph
Dear Carmel
I have had some follow up from some of the JD student who initially raised the issue of proposed changes in the certification of the JD in China. I have prepared a draft letter to Brooke Hartigan‐ attached. Would you let me know please if you have any comments on it.
Many thanks Sarah
Sarah Biddulph
Professor Assistant Deputy Vice Chancellor‐ International (China)
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CALD Meeting Paper Page 224 CALD Meeting - 4 Oct 2019 Item E03(7) Director, Asian Law Centre
Melbourne Law School | The University of Melbourne | Victoria 3010 Australia T: +61 3 8344 1015 | E: [email protected] | W: http://www.law.unimelb.edu.au/alc
Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which the law school stands. We pay our respects to their Elders both past and present.
From: Chen CHEN
Dear Professor Biddulph Hi! My name is Chen Chen, I'm currently a second‐year international JD student. I, with a small group of Chinese students, have been following the MEPPC's proposed policy issue. (I believe you have met Pi Zihang the other night at the GLSA event. :) ) We really really appreciate what you and Professor Chapman have done for us, and the support from MLS.
So far, we have: 1. drafted the original petition, collected signatures from MLS Chinese students and sent it to the MEPPC; (please see attached) 2. contacted Chinese JD students from other Universities (USYD, UNSW, ANU etc,); drafted another petition together based on the original one, collected signatures Australian‐wide and just sent to the MEPPC tonight. (please see attached)
Thanks for letting Chuyan contact us. Please see attached: 3. The Australian JD MEPPC Certificate (pdf + typed word version) 4. The American JD MEPPC Certificate (pdf + typed word version)
I also attach: 1. a screenshot of the original proposed policy. 2. screenshot of the Email exchange with the Service Center in which they further confirmed that they will name American JD and Australian JD differently.
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Unfortunately, we have not been able to get in touch with any Chinese MD students yet. But we'll keep trying. Also, we plan to make a phone call with the MEPPC to inquire directly about MD's certificate.
If you need anything, or if there is anything we could help with, please don't hesitate to let us know :) 5
CALD Meeting Paper Page 226 CALD Meeting - 4 Oct 2019 Item E03(7)
Best regards, Chen Chen
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CALD Meeting Paper Page 227 CALD Meeting - 4 Oct 2019 Item E03(7)
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CALD Meeting Paper Page 228 CALD Meeting - 4 Oct 2019 Item E03(8)
Vi Kacevska
From: NDIS Consultations
Attached is a letter from Mr David Tune AO PSM, inviting your organisation and its members to contribute to the review of the NDIS Act.
NDIS Act Review Secretariat Department of Social Services [email protected]
The Department of Social Services acknowledges the traditional owners of country throughout Australia, and their continuing connection to land, water and community. We pay our respects to them and their cultures, and to Elders both past and present.
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CALD Meeting Paper Page 229 CALD Meeting - 4 Oct 2019 Item E03(8)
Professor Lesley Hitchens Council of Australian Law Deans
Dear Professor Hitchens
As you may be aware, I have been appointed to undertake a review of the National Disability Insurance Scheme Act 2013 (NDIS Act) that will develop a new legislated Participant Service Guarantee (the Guarantee). The Guarantee is to come into effect from 1 July 2020, and will set new standards and timeframes for people with disability to receive access, planning and plan review decisions.
The review will also focus on opportunities to amend the NDIS Act to make National Disability Insurance Scheme (NDIS) processes simpler and remove barriers to positive participant experiences. The review will not look at the fundamental principles and design of the scheme. Terms of Reference of the Review are available at: https://www.dss.gov.au/disability-and- carers-programs-services-for-people-with-disability-national-disability-insurance-scheme/ndis- act-review-and-participant-service-guarantee-tune-review-terms-of-reference
While the key focus of public consultation to develop the Guarantee will be with NDIS participants, family members and carers, I appreciate that your organisation and members have significant expertise in areas that will contribute to the Review. This expertise will be important as the Review examines the NDIS Act.
Your organisation or members are welcome to make a formal submission in response to the Discussion Paper, or to provide an overview of key areas in the NDIS Act which require examination in order to improve the transparency and timeliness of NDIS decision-making and the associated review and appeals processes. The closing date for submissions is 31 October 2019. More information is available on DSS Engage (engage.dss.gov.au), including the opportunity to subscribe to email updates on the progress of the Review.
I note that your organisation or members may also have undertaken significant research, studies or other public reviews on the interactions and challenges NDIS participants face in seeking reviews of NDIA decisions, appealing to the Administrative Appeals Tribunals, or understanding the relevant legal processes. I would appreciate it if you could provide any such relevant material to [email protected] where it will be taken into account as part of the Review’s examination of possible legislative amendments.
Recognising the time constraints on many organisations operating to support individuals through legal processes, I am also contemplating the suitability of a teleconference between legal officers in the Review Secretariat and appropriate experts in your organisation to workshop specific provisions of the NDIS Act which should be considered as part of the Review. If you would like to be a part of this potential workshop, please express your interest by
CALD Meeting Paper Page 230 CALD Meeting - 4 Oct 2019 Item E03(8)
emailing [email protected] with a short biography or indication of your legal experience in relation to the NDIS Act by Friday 27th September 2019.
Yours sincerely
David Tune AO PSM cc: Mr Vic Kacevska, Executive Coordinator ([email protected] )
CALD Meeting Paper 2Page 231 CALD Meeting - 4 Oct 2019 Item E03(9)
Vi Kacevska
From: Melbourne Law School Dean Sent: Friday, 13 September 2019 1:43 PM To: [email protected] Cc: Pip Nicholson; Sarah Biddulph; [email protected]; Vi Kacevska; Amy Johannes Subject: Juris Doctor (JD) Certification in China Attachments: Ltr - Brooke Hartigan re JD Certification - 130919 - final inc attachments.pdf
Follow Up Flag: Follow up Flag Status: Flagged
Categories: CALD
Dear Ms Hartigan,
Please see the attached letter regarding Juris Doctor (JD) Certification in China.
Best wishes,
Pip Nicholson
Professor Pip Nicholson | Dean William Hearn Professor of Law Melbourne Law School Level 9, 185 Pelham Street, Carlton The University of Melbourne, Victoria 3010 Australia T: +61 3 8344 6172 E: [email protected] law.unimelb.edu.au | facebook.com/MelbourneLawSchool | twitter.com/unimelb
Melbourne Law School acknowledges the Wurundjeri Peoples of the Kulin Nations as the Traditional Owners of the land on which the law school stands. We pay our respects to their Elders both past and present.
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CALD Meeting Paper Page 232 CALD Meeting - 4 Oct 2019 Item E03(9)
13 September 2019
Ms Brooke Hartigan Minister-Counsellor (Education and Research) , Beijing Australian Embassy 21 Dongzhimenwai Dajie Sanlitun Beijing 100600 PEOPLE'S REPUBLIC OF CHINA
By email: [email protected]
Dear Ms Hartigan
RE: Juris Doctor (JD) Certification in China
Thank you for your email of 19 July 2019 sent to our Chancellery International team, responding to ou r query about changes in the form of certification for the Australian JD . I write to you in my capacity as Chair of the Standing Committee: International Matters, Council of Australian Law Deans (CALD), the peak body for Australian Law Schools, and as Dean of Melbourne Law School, the Un iversity of Melbourne. I also wish to acknowledge that Professor Lesley Hitchens, in he r capacity as Chair of CALO, shares the concerns expressed below and is copied into this correspondence.
Our primary concern was that the Australian JD would be certified in a way that disadvantaged our degree as against the US J D qualification. We understand that the official certification body, the China Service Centre for Scholarly Exchange, has not proceeded with its new naming policy pending further consideration and that no final decision as to wording has been made.
Following that correspondence, Professor Sarah Biddulph, Assistant Deputy Vice-Chancellor International (China) has discussed this situation with the students who initially raised the concerns. They remai n concerned that the proposed changes, if made in the form originally proposed, will have had a sign ificant detrimental impact on the status accorded to their degree and to their job prospects on their return to China.
In this note we set out some of the additional information obtained from them and set out ongoing concerns about possible changes to the form of certification of the Australian JD .
The China Service Centre for Scholarly Exchange proposes to refer to the JD as a 'Professi onal law qualification ' (Jl,q~lJ.Ut1! :X:~).
The proposal to change the word 'degree' ('.¥{fl.) to 'qualification' or 'certification' (Jt~) is vague and derogates from the fact that the qualification is in fact a degree. We are concerned that a Jt~ could also be interpreted as a diploma and in any case is less specific and of lower status than 'degree' ('.¥1.ft. ).
The proposed changes would remove the words 'doctoral' (tf±) from the description of the degree, originally referred to as a professional law doctoral degree (Jl,qillOt 1tt!±¥1n). Whilst the words 'doctoral' are to be removed from the description of the US and Australian J D, we understand that they Professor Pip Nicholson Dean William Heam Professor of Law
Melbourne Law School The Un iversity of Me lbourne, Victoria 3010 Australia T: +613 8344 6172 f F: +613 8344 7847 f E: [email protected] f W: law.unimelb.edu.au f unimelb.edu.au CALD Meeting Paper Page 233 CALD Meeting - 4 Oct 2019 Item E03(9) are not similarly proposed to be removed from an MD which is an equivalent level graduate medical degree.
Our students have also provided us with some additional documentation about the proposed changes that provide some explanation and context for their concerns which we have attached:
two letters the students wrote to the China Service Centre for Scholarly Exchange setting out their arguments and concerns for your reference (Attachment 1 (from MLS students) and Attachment 2 (from JD students throughout Australia)); and an anonymised document of certification in relation to a JD issued by the University of Sydney (Attachment 3 (image of actual document of certification) and Attachment4 (copy typed version of Attachment 3)).
There are a number of assertions in this certificate (Attachments 3 and 4) that are misleading about the nature of the JD program in a number of important respects.
Of particular concern in it are the words:
'in the Australian system the professional law doctorate is at an equivalent level to a Law Masters' degree'.
'the certification professional law doctoral degree obtained is of a comparable academic status'.
It would be very easy for a potential employer to read the certification as asserting that the JD is 'equivalent to' rather than as an 'equivalent level' to the Law Masters' degree.
The University of Melbourne Handbook describes the JD in the following terms:
The Melbourne JD is a fully graduate law degree. Applicants must have either an undergraduate degree in a discipline other than law or a degree in law from a different legal system. The JD leads to admission to the legal profession in all Australian jurisdictions and can be used as a basis for seeking admission in many overseas jurisdictions as well.
The University Handbook also lists the Graduate Attributes of the JD and does so in a way that reflects the requirements of AQF 9. Statements of AQF 7 and 9 are set out at https://www.aqf.edu.au/aqf-levels. As you know AQF level 9 requires a higher level of demonstrated analytical skills and deeper understanding of the material. It does not otherwise make the JD equivalent to the Law Masters.
The fact that the JD program and courses must be offered at a higher level than the LLB reflects the graduate nature of the degree. The Law Masters degree is an entirely different course, offered to a different cohort of students and is not a professional qualification degree. The explanation in the Chinese certification creates a risk of false equivalence between the JD and the Law Masters.
In the Chinese system, students may study a first law degree at either the undergraduate or graduate level. Graduate law is usually offered to students who have already completed a prior undergraduate degree. Unlike Australia, admission to legal practice depends on passing the National Judicial
CALD Meeting Paper Page 234 CALD Meeting - 4 Oct 2019 Item E03(9)
Examination (Ii% l"E] ;w: i§'J 1t~ii). Eligibility to sit the exam is broader than graduates with a formal undergraduate law qualification and may include people with a Law Masters and people without a formal law qualification who have three years' work experience in the legal sector (Ministry of Justice Implementing Measures for the National Uniform Law Qualification Examination article 9(5) 28 April 2018 (li%tJE-Y!{tlfR.ill'.'.. 18.H!~ii~JJili1}1t). So, in China the LLB and the Law Masters are seen as equivalent for the purposes of eligibility to sit the National Uniform Legal Qualification Examination, as is three years' work experience in the legal sector. It is understandable that Australian JD students would be worried that against this background, their JD degreemight be understood to be equivalent to the LLB (for the purposes of qualifying to sit the National Judicial Examination) despite the words in the certification being 'of equivalent level to a Law Masters'.
For the purposes of clearly attributing value to their degree in terms that are less likely to be misunderstood in China, and to retain equivalence with the form of certification of the MD degree, we strongly suggest that the term 'professional law doctoral degree' (lfR.ill'.'..1t{ttw ±'¥:{l'l.) be retained.
We would be most grateful if you could make inquiries about whether a new or altered certification policy is being considered. If so, we would be most grateful if you could make representations to encourage retention of the 'professional law doctoral degree' (ll.,q ill_Ut1!t~±~1TI) designation for recognition of the Australian JD.
Y~ ely ~
Professor Pip Nicholson Chair, Standing Committee: International Matters, CALD Dean, Melbourne Law School William Hearn Professor of Law
Encl Attachment 1: letter from MLS students to the China Service Centre for Scholarly Exchange Attachment 2: letter from JD students throughout Australia to the China Service Centre for Scholarly Exchange Attachment 3: an anonymised document of certification in relation to a JD issued by the University of Sydney Attachment 4: copy typed version of Attachment 3
Copied to: Professor Sarah Biddulph Assistant Deputy Vice-Chancellor International (China), University of Melbourne Professor of Law, Melbourne Law School [email protected]
Professor Lesley Hitchens GAICD Chair, CALD Dean, Faculty of Law, University of Technology Sydney [email protected]
Ms Vi Kacevska Executive Coordinator, CALD [email protected]
CALD Meeting Paper Page 235 CALD Meeting - 4 Oct 2019 ATTACHMENT 1 - Ms Brooke HartiganItem E03(9)
墨尔本大学中国 JD 留学生致教育部学历认证中心的公开信
尊敬的各位教育部领导，您好： 我们是墨尔本大学法学院的 JD 项目在读/毕业生。作为普通的留学生，同时也是未 来的中国法律工作者，我们无时无刻不在关注着祖国法律行业的发展动向。
贵部门于 2019 年 7 月 2 日发布了一则《关于对外国 Juris Doctor 证书认证办法进行 调整的公告》（《公告》）。我们注意到，《公告》中提到，“将美国和澳大利亚JD 证 书的学历层次明确表述为硕士层次，将加拿大JD 证书的学历层次明确表述为学士层次”。 根据我们初步咨询的结果，贵部门拟将美国 JD 名称定为"职业法律博士文凭", 澳大利亚 JD 却仅为“职业法律文凭”。我们就此继续向贵部门咨询，得到了如下回复： 贵部门拟 将美国 JD 认证结果采用写实性表述，而将澳大利亚 JD 继续表述为硕士。其依据是： 在澳大利亚学历框架体系中，职业法律文凭证书与硕士学位证书同属一个层次（level 9: 9 级）。
2019 年 7 月 12 日，贵部后续发布了《关于就国外 Juris Doctor 证书认证办法进一 步征求意见的通知》（《通知》）。根据《通知》，我们知悉，目前贵部已暂停认证 调整办法，并将进一步咨询专家学者和社会各界再做认证调整决定。 首先，我们对贵部在接收到学生们的反馈之后，及时进行耐心的回复并做出进一 步征集意见的决定，表示由衷的感谢。其次，我们希望借此次贵部调研咨询的机会， 对澳大利亚 JD 进行详细说明。并且，我们衷心希望贵部：
1. 能够将美国，加拿大，澳大利亚 JD 学位的名称统一表述为“职业法律博士”；且
2. 能酌情统一中国内部对 JD 学位的认证表述，消除长久以来的不确定性。
3. 能酌情删除目前澳大利亚 JD 学历学位认证书中含有的“在澳大利亚学历框架体系 中，职业法律博士学位证书与硕士学位证书同属一个层次。”的表述。按照其实质性的 学位名称，课程，学制等来进行认证，而非描述学位发放国的学历分级。
我们在此提出以下观点，并附上相应调研材料，敬请参考。
I. 澳大利亚 JD 与美国 JD 同等对待的合理性
Juris Doctor 学位最早源于美国法学教育，且在美国当下被认为是等同于博士级别 的高等教育学位(Advanced Professional Degree). 在美国的法学教育历史长河中，其法学教育模式从最早英国殖民时期的“学徒式” （“apprenticeship”）教育模式，经过了十九世纪的“学科式”（“scientific study”）教育模 式运动，最终形成了现今的学科性与实践性并行的法学教育模式。
Juris Doctor 的产生源于美国法学教育的在十九世纪的变革，侧重于典型性案例教 学模式和推理技法教学模式，严格要求三年的全日制学习。
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美国律师协会（American Bar Association）曾今发文专门要求美国 JD 至少在学术领 域的认定不能低于博士级别（Doctor of Philosophy, Ph.D.）。请参考附件【1】（美国律 师协会申明）第 145 页标题 2。
澳大利亚的 JD 学位是完全引进美国的 JD 制度设立起来的，所以澳大利亚的 JD 应 当享有不低于美国 JD 认证的待遇。
其一，入学要求相同。
澳大利亚的法学院录取选拔方式与美国相同。 申请人皆需要以全日制本科学历作为基本条件。美国各大法学院和澳大利亚墨尔 本大学法学院都将“法学院录取考试”成绩（Law School Admission Test）作为 JD 重要的 入学申请参考依据和录取标准。除此之外，澳大利亚法学院和美国法学院均参考本科 成绩，申请人陈述，和工作教育经历等多项因素进行综合性选拔。
其二，学制及课程设置相同。
和美国 JD 一样，澳大利亚的 JD 同样采用三年全日制的学制。 美，澳，加三国法律体系均属“普通法系”。三国的 JD 均以普通法法律教育为基础， 其教学内容本质相同。
其三，毕业后资质相同。 澳大利亚 JD 毕业生可以直接参加部分美国州内律师职业资格考试，直接获得美国 律师资格。
例如，根据纽约《律师职业资格上诉院规则第五百二十部分》（Part 520. Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law）中第 520.6 条， 在审核美国国外法学生是否能够参加纽约州法律师资格考试，必须满足国外法学教育 在学时与学习内容上“很大程度上等同于”美国法学院。请参考附件【2】（Part 520. Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law）中第 520.6 条。由此侧面证明了澳大利亚 JD 与美国 JD 学位的同质性，不应区别对待。 最后，关于此点，我们也正在与澳洲各大校方进行积极的联系。我们相信在不久 的将来，澳大利亚各大院校将会出具相应的官方说明来证明两国 JD 的相似性。如若校 方颁布了此类公告说明，我们将会再次联系贵部，以供参考。
II. 澳大利亚 JD 仅表述为“职业法律文凭”, 忽略“Doctor”一词缺乏合理性 JD 学历是澳大利亚学历体系中 master level 的特殊划分。
澳大利亚学历层级划分（Australian Qualifications Framework)（见附件【3】第 2 页， “The use of the title 'Juris Doctor' is permitted for a Master Degree (Extended) for legal practice.” ）明确说明 Juris Doctor 即“法律博士” 中‘doctor’（博士）一词在该学历名称中 的使用，是该学历层次（level 9）所允许的，与学历层次划分并不冲突。
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因此在认证过程中，对“doctor”一词的忽略是不合理的，与贵部的写实性描述要求 背道而驰。
III. 将澳大利亚 JD 描述为“硕士层次”缺乏合理性 目前澳大利亚 JD 学历学位认证书中含有“在澳大利亚学历框架体系中，职业法律博 士学位证书与硕士学位证书同属一个层次”的表述。根据过往的咨询，贵部此次调整很 大程度取决于澳大利亚本土将 JD 划分为硕士层级学位。 我们认为以上表述存在不合理性。我们衷心希望贵部能统一对美国，澳大利亚， 加拿大 JD 学位的认证描述。理由如下：
其一，该表述的逻辑不符合国际认证通用逻辑。 英美法系国家的 JD 学位认证均按照认证国本国对于 JD 的划分来确定外国 JD 的定 位。例如，澳大利亚国内将 JD 学位划分为硕士，他国 JD 在澳大利亚均被认证为硕士。 即便是是美国 JD, 加拿大 JD 到了澳大利亚都会被认定为是硕士。相似的，澳大利亚 JD 在美国同样是被美国认定为博士层级的学位。
因此，从逻辑上看，直接将澳大利亚学历划分结果照搬到中国，与美国的 JD 认定 划分进行横向对比，而得出“美国 JD 和澳大利亚 JD 应该被区别对待”的结论，是存在逻 辑漏洞的。
希望贵部能够统一 JD 在中国本国的认证标准和表述。
其二，即便贵部在进行认证时参考附件【3】（澳大利亚学位等级划分）的划分， 也应当注意到该文件对 JD 学位的特殊表述和安排。
JD 属于 level 9 中的“Masters Degree (Extended)”与 level 9 中的其他两个学位即 “Masters Degree (Research) ” 即研究型硕士，“Masters Degree (Coursework)”即授课型硕 士不同。对其意义的理解应当参考美国学历划分中对 JD 学历的划分。即将其划分为 ‘Advanced Professional Degree’. 根据我们了解，这一学历与国内的“硕士学位”并不完全对等，在认证中忽略该区 别，而采用笼统的“职业法律博士学位证书与硕士学位证书同属一个层次”的语句，不 符合贵部‘写实性描述’的原则。
其三，该调整将造成 JD 和一年制法学硕士（Master of Law, LL.M）认证上的混淆。
明显有别于一年制的法学硕士，三年制 JD 无论是在课程设置上或是课程难度上都 是不同于 LL.M 的。如果回国认证与 LL.M 处于同一水平，明显对于苦读三年的 JD 学子 来说有失教育公平。因此，JD 与法学硕士在认证上有必要区别开来。 其四，中国国内关于外国学位学历认证办法并无要求认证必须根据学位获取国的 学位划分来决定中国学位认证的划分。
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2018 年版《教育部留学服务中心国(境)外学历学位认证评估办法》，第 5 条 【认 证内容】中并没有要求在认证专业（例如：JD） 时参照在境外他国（例如：澳大利亚） 学历框架体系中的咨询意见。
其五，澳大利亚将 JD 划分为硕士，主要是受其移民加分政策的影响。 在澳大利亚，相较于硕士学位，博士享有着更有利的移民条件。由于澳大利亚并 不希望太过放宽其移民政策，所以某种程度上也导致了澳大利亚将 JD 的学位层级划分 为硕士。然而，我国并不存在这种政策考量，因此完全照搬陈述澳大利亚 JD 的学历划 分是缺乏依据和合理性的。
IV. 区别对待将打压澳大利亚 JD 学生回国发展意向和中国法律事业的发展 在当前的国际经济形势下，英美法系规则(该法律体系包含以英、美、加、澳为代 表的一系列国家或地区)对于国际商业体系的运行和规范依然起着至关重要的作用。当 前国内一带一路建设中，紧缺具有国际视野的法律人才。我们不难看到，由于对国外 法律体系的知识真空，我国企业在国际化的进程中往往遭遇来自西方国家的阻力和掣 肘。因此，我国对熟练掌握中国与西方法律知识的复合型人才存在越来越庞大的需求。 而拥有三年英美法系教育经历的广大 JD 毕业生正是此类人才队伍中的先锋，是为中国 企业走向全球保驾护航的执行者。我们的 JD 留学生正是怀着这样的理想“走出去”的。 随着中国进一步的开放和国际化程度的提高，势必有越来越多的中国学生申请 JD。 相应地，回归国内法律行业的澳大利亚 JD 毕业生也会越来越多。澳大利亚 JD 在国内 的学历认证不仅关系到我们这些海外求学的中国学生回国后个人发展问题，也会影响 到未来申请澳大利亚 JD 的中国国际学生。
其一，澳大利亚著名法学院的国际声誉 在 2019 年 QS 世界大学法学专业排行中，澳大利亚墨尔本大学法学院排名第 6 名， 悉尼大学法学院排名第 12 名，新南威尔士大学法学院排名第 14 名。澳大利亚法学院 的国际声誉已超过很大一部分老牌知名美国法学院。（ QS 链接： https://www.topuniversities.com/university-rankings/university-subject-rankings/2019/law- legal-studies）
其二，中国学生赴澳攻读 JD 的现状和趋势 有别于几年前学生大都单一选择赴美攻读 JD 的情况，近年来中国留学生赴澳攻读 JD 学位的人数明显增多。且目前就读于墨尔本法学院 JD 项目的中国学生，大都来自国 内重点大学，学习成绩优异。一部分学生已经在国内法律行业有所作为，并希望能够 更进一步拥有国际化视野和知识结构。
其三，区别对待对澳大利亚 JD 毕业归国学生造成的负面影响 遗憾的是，根据贵部回复，贵部拟将美国 JD 认证为“职业法律博士文凭”而将澳大 利亚 JD 仅认证为“职业法律文凭”。这一新的认证规则将会成为广大澳大利亚 JD 归国报 效祖国的第一道阻力。
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非法律行业企业在聘用和录取人才时，很大程度依赖于贵部的认证结果。对于同 质学历认证结果的不统一，首先将导致这些高学历高层次人才在求职、落户等诸多方 面受到不利的影响，极大削弱了他们在法律人才市场的竞争力，进而打击了他们归国 发展、投入到国家经济与法制建设中的积极性。
且在中文语境中，“职业法律文凭”的表述无法体现 JD 学位所应有的社会评价，且 极有可能引起用人单位对此学位的低估和误解，造成对澳大利亚 JD 学生的二次不公平 待遇。
其四，区别对待将可能造成赴美攻读 JD 的单一化局面，不利于法律人才多元化
贵部拟做出的决定，实际上给予与澳大利亚 JD 同质的美国 JD 在回国认证，求职等 等方面巨大的优势。这种优势将直接造成往后 JD 学生择校时的单一化。在同样的金钱 和时间成本面前，绝大多数学生将会选择赴美。 中国的经济建设，企业发展和法律行业发展需要更多元化的国际法律人才。此种 区别对待，从长远上看，将造成法律人才的单一化。在澳大利亚攻读 JD 的学生，普遍 具有良好的思想素质和不亚于美国法学院学生的学术水平，同时也有强烈的归国发展 意愿。这些高学历高层次人才的流失，对国家而言是很大的损失，亦不利于中国特色 社会主义市场经济以及法治建设。
V. 信赖利益的保护 根据多名澳大利亚 JD 在读/往届生反馈，在该《办法》出台前，他们从留学生服务 中心得到的认证结果均显示澳大利亚与美国 JD 回国均认证为“职业法律博士学位”。故 而，如果贵部突然施行《办法》，必定会与贵部之前的实践操作相违背，继而损害此 批在读留学生的信赖利益。
VI. 区别调整的国际影响 此外，留学认证规则体现了我国对于海外法律教育体系乃至整个法律行业的认知 和理解， 因此更宜慎重。将无论是入学条件，选拔方式，还是课程设置，毕业后就业 资质都相同或相似的澳大利亚和美国的 JD 进行区别对待，极易导致他人误解我国对全 球法律行业欠缺基本了解，使我国在国际社会中建立起来的法律行业专业性以及国际 化形象蒙受损害。
最后，由于中、加、澳、美四国高等教育制度存在一定的差异，导致 JD 无法与中 国现行的三级学位中的任何一级完全对应。然而，综合考虑上述各方面的因素, 我们恳 请教育部各位领导能够：
1. 将此次澳大利亚 JD 的调整比照美国 JD 处理办法，即将中文名称调整为“职业法 律博士”;
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2. 调整原有的认证中“在澳大利亚学历框架体系中，职业法律博士学位证书与硕士 学位证书同属一个层次。”的表述;
3.严格遵循写实性表述的原则。用人单位可将持有者的实际情况和用人需求相结 合，自行确定证书持有者的待遇; 4. 如果未来贵中心对美国 JD 要作出新的调整，也希望对澳大利亚 JD 进行相应的调 整，以求给予澳大利亚 JD 学历以公正，准确，实事求是的评价。
感谢各位领导百忙之中查阅此封联名信。我们谨代表所有墨尔本大学 JD 学生和本 次调整办法的利益相关者再次对贵部在此次调整中所表现出来的专业，认真，及时和 耐心表示衷心的感谢。
此致
敬礼
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学生签名：
卓楷程，墨尔本大学 Juris Doctor 2018级(在读), 莫纳什大学2017届硕士毕业生，华东 政法大学2015届本科毕业生; 皮子杭，墨尔本大学Juris Doctor 2019级（在读），中国人民大学2018届本科毕业生 李姝，墨尔本大学Juris Doctor 2019级（在读），中国人民大学2018届本科毕业生 段然，墨尔本大学Juris Doctor 2019级（在读），中央财经大学2018届本科毕业生 靖昊，墨尔本大学Juris Doctor 2019级 （在读），上海对外经贸大学2015届硕士毕业 生，上海对外经贸大学2012届本科毕业生 陈晨，墨尔本大学 Juris Doctor 2018级（在读），中国人民大学2016届本科毕业生； 赵皓月，墨尔本大学Juris Doctor 2018级（在读），浙江大学2017届本科毕业生； 何妍君，墨尔本大学Juris Doctor 2018级（在读），北京大学2016届本科毕业生; 骆敏婷，墨尔本大学Juris Doctor 2019级（在读），中国人民大学2018届本科毕业生; 闵盈颖，墨尔本大学Juris Doctor 2019级（在读），墨尔本大学2018届本科毕业生； 麦嘉琪， 墨尔本大学Juris Doctor 2018级（在读），中山大学2017届本科毕业生； 李思昕，墨尔本大学Juris Doctor 2019级（在读），康奈尔大学2018届本科毕业生； 秦辕东，墨尔本大学Juris Doctor 2019级（在读），外交学院2017届本科毕业生； 夏天真，墨尔本大学Juris Doctor 2018级（在读），对外经济贸易大学2017届本科毕 业生； 李晓楠，墨尔本大学Juris Doctor 2019级（在读），墨尔本大学2018届本科毕业生； 吴雨薇，墨尔本大学Juris Doctor 2018级（在读），墨尔本大学2017届本科毕业生 朱彦杰，墨尔本大学Juris Doctor 2019级（在读），杜伦大学2017届硕士毕业生，华 东政法大学2016届本科毕业生； 蔡月芸，墨尔本大学Juris Doctor 2019级（在读），厦门大学2018届本科毕业生； 檀天元，墨尔本大学Juris Doctor 2019级（在读），益普索（中国）法律顾问； 杨熙川，墨尔本大学Juris Doctor 2019级（在读），美国波士顿大学LLM2018届硕士 毕业生 尹雯，墨尔本大学 Juris Doctor 2018级（在读），Fordham University 2017届本科毕 业生； 董禹良，墨尔本大学Juris Doctor 2019级（在读），香港中文大学2017届硕士毕业生 郭佳蕙，墨尔本大学Juris Doctor 2019级（在读），武汉大学2018级本科毕业生
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郑然，墨尔本大学Juris Doctor 2019级（在读），美国爱荷华大学2015届硕士毕业生 ，中国人民大学2011届本科毕业生 刘愿君，墨尔本大学Juris Doctor 2019级（在读）， 史修齐, 墨尔本大学Juris Doctor 2019级（在读）， 王建普，墨尔本大学 Juris Doctor 2019级(在读), 乔治城大学法律中心2017届硕士毕业 生，中山大学2016届本科毕业生。 刘笑天，墨尔本大学Juris Doctor 2018级（在读），北京邮电大学2017届本科毕业生 沈晨智，墨尔本大学Juris Doctor 2019级（在读），美国埃默里大学2018届本科毕业 生； 澹台瑞丰，墨尔本大学Juris Doctor 2019级（在读），美国西北大学2018届硕士毕业 生，华东政法大学2017届辅修学士，华东师范大学2017届本科毕业生； 张凤池，墨尔本大学Juris Doctor 2018级（在读），华东政法大学2016届本科毕业生 黄君杰，墨尔本大学Juris Doctor 2019级（在读），西南政法大学2015届本科毕业生 卢程稳，墨尔本大学Juris Doctor 2019级（在读），上海财经大学2015届本科毕业生 刘千硕，墨尔本大学Juris Doctor 2019级（在读） 王博，墨尔本大学Juris Doctor 2019级（在读），墨尔本大学2017届本科毕业生； 蔡鹄宇，墨尔本大学Juris Doctor 2019级（在读），美国埃默里大学LLM 2018届毕业 生 刘峙学，墨尔本大学Juris Doctor 2018级（在读），中国政法大学2016届本科毕业生 庞凯迪，墨尔本大学Juris Doctor 2019级（在读），南京大学2018届本科毕业生 伍楚妍，墨尔本大学Juris Doctor 2018级（在读），昆士兰大学2017届本科毕业生 赖智轩，墨尔本大学Juris Doctor 2018级（在读），墨尔本大学2016届本科毕业生 段然，墨尔本大学Juris Doctor 2019级（在读），美国埃默里大学LLM 2016届毕业生 ，北京中医药大学2015届本科毕业生 刘维奇，墨尔本大学Juris Doctor 2018级（在读） 王思琪，墨尔本大学Juris Doctor 2018级（在读） 刘天枢，墨尔本大学Juris Doctor 2018级 （在读），加州大学伯克利分校 2015届毕业 生； 杜雨洁，墨尔本大学Juris Doctor 2017级（在读） 李熙，墨尔本大学Juris Doctor 2018级（在读），哈尔滨工业大学2017届本科毕业生 孙道远，墨尔本大学Juris Doctor 2018级（在读） 周之仪，墨尔本大学Juris Doctor 2019级（在读），北京大学2018届本科毕业生
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高一格，墨尔本大学Juris Doctor 2017级（在读） 张海伦，墨尔本大学Juris Doctor 2019级（在读），中国政法大学2018届本科毕业生 陈喆立，墨尔本大学2015级Juris Doctor（毕业）；Monash 2011届商学硕士；复旦大 学2002级法学学士 田家维，墨尔本大学Juris Doctor 2018级（在读），墨尔本大学机械工程2016届本科 毕业生 薛云崧，墨尔本大学Juris Doctor 2019级 （在读），中国政法大学2018届本科毕业生 陈碧宵，墨尔本大学Juris Doctor 2017级（在读），对外经济贸易大学2016届毕业生 戴苏裕，墨尔本大学Juris Doctor 2017级（在读），对外经济贸易大学2016届本科毕 业生 杨凯茜 / 墨尔本大学 Juris Doctor 2017级（已毕业），北京大学2014届本科毕业生
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COUNCIL STATEMENTS
Periodically, the Council issues Statements intended to provide law schools with guidance on a variety of issues. These Statements are advisory in nature only. They are not and should not be considered the equivalent of Standards, Interpretations, and Rules for the Approval of Law Schools.
1. LL.M. and Other Post-J.D. Degrees and Qualification for Admission to Practice
The American Bar Association’s approval of a law school extends only to the first professional degree in law (J.D.) offered by a law school. ABA approval of a school’s J.D. program provides bar admission authorities, students and the public assurance that the law school’s J.D. program meets the Standards established by the ABA and that graduates of the school have completed an educational program that prepares them for admission to the bar and to participate effectively and responsibly in the legal profession.
ABA approval does not extend to any program supporting any other degree granted by the law school. Rather the content and requirements of those degrees, such as an LL.M., are created by the law school itself and do not reflect any judgment by the ABA regarding the quality of the program. Moreover, admission requirements for such programs vary from school to school, and are not evaluated through the ABA accreditation process. The ABA Accreditation process does not evaluate in any way whether a school’s post-J.D. degree program ensures that students in the program gain the basic knowledge and skills necessary to prepare the student adequately for the practice of law. It is the long-standing position of the Council of the Section of Legal Education and Admissions to the Bar that no graduate degree is or should be a substitute for the J.D., and that a graduate degree should not be considered the equivalent of the J.D. for bar admission purposes.
The Standards for Approval of Law Schools prohibit an approved law school from establishing a post-J.D. program without first obtaining the acquiescence of the Council of the Section of Legal Education and Admissions to the Bar. However, the ABA reviews post-J.D. degree programs only to determine whether the offering of such post-J.D. program would have an adverse impact on the law school’s ability to comply with the Standards that the ABA establishes for J.D. programs. If no adverse impact is indicated, the ABA acquiesces in the law school’s decision to offer the non-J.D. program and degree. Acquiescence in a post-J.D. program does not constitute ABA approval or endorsement of such a program.
2. J.D. Degree - Ph.D. Degree Equivalency
WHEREAS, the acquisition of a Doctor of Jurisprudence degree requires from 84 to 90 semester hours of post baccalaureate study and the Doctor of Philosophy degree usually requires 60 semester hours of post baccalaureate study along with
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the writing of a dissertation, the two degrees shall be considered as equivalent degrees for educational employment purposes;
THEREFORE, BE IT RESOLVED, that all appropriate persons be requested to eliminate any policy, or practice, existing within their jurisdiction which disparages legal education or promotes discriminatory employment practices against J.D. degree-holders who hold academic appointment in education institutions.
3. Propriety of Examination by Public Authority before Admission to Practice
A half century ago the American Bar Association adopted standards for legal education, the second of which is as follows:
“The American Bar Association is of the opinion that graduation from a law school should not confer the right of admission to the bar, and that every candidate should be subject to an examination by public authority to determine his fitness.”
The criticism of bar examinations, which is daily becoming more prevalent, makes it most appropriate for the Council of the Section of Legal Education and Admissions to the Bar and the Board of Managers of the National Conference of Bar Examiners to state their opinion on the matter of the so-called Diploma Privilege.
It is the position of the Council and Board that the above-quoted standard, adopted in 1921, is as valid today ─ perhaps more so with the mobility of law graduates ─ as it was at the time and that every applicant for admission to the bar should be subject to examination by public authority.
Very great progress has taken place in the caliber of legal education in the fifty years intervening since 1921. In part the improvement in legal education has been the result of experimentation in teaching techniques. Not all such experiments have proved successful. Public authority should not dictate teaching techniques but it should make sure that all applicants have the training necessary to adequately serve the public upon their admission.
Not only are law schools quite properly experimenting in teaching techniques but they are experimenting in curriculum content. Again, public authority should not dictate curriculum content but by examination should determine that the content of the applicant’s education is such that upon admission he will be able to adequately serve the public. In one of the jurisdictions where graduates of certain law schools are admitted without examination, the Court found it necessary to a certain extent to dictate the curriculum content of those schools—an unfortunate limitation on the educational freedom of these schools.
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Bar examinations themselves serve additional functions. They encourage law graduates to study subjects not taken in law school. They require the applicant to review all he has learned in law school with a result that he is made to realize the interrelation of the various divisions of the law—to view the separate subject courses which he took in law school as a related whole. This the curriculum of most law schools does not achieve. Also, it is the first time many of the applicants will have been examined by persons other than those who taught them, a valuable experience in preparation for appearing before a completely strange judge.
To reiterate, it is the position of the Council and the Board of Managers that there must be examination by public authority. This is not to say that public authority must not be very careful in its examination procedure to make sure that it is fulfilling its responsibilities. It should continually strive to make its methods of examination more effective so that the results will be the nondiscriminatory admission of none not qualified and the exclusion of none qualified, even though this requires the use of innovative examining techniques and constant consideration of the ever changing needs of our society. The necessity to train lawyers to represent all members of society is a continual challenge to teachers of law and legal education. To test this properly the examining authority can perform effectively and satisfactorily only if it makes responsive changes in its techniques.
4. Law Students Called to Active Military Duty
Resolved, that any student who leaves his/her law school prior to completion of a semester, quarter or session as a result of being called to active military duty in the armed forces of the United States may be granted by any approved law school appropriate credit for any quarter, semester or session which was interrupted by the call to active military duty. A law school may establish its own policies with respect to adequate completion of further work by the student.
5. Rating of Law Schools
No rating of law schools beyond the simple statement of their accreditation status is attempted or advocated by the official organizations in legal education. Qualities that make one kind of school good for one student may not be as important to another. The American Bar Association and its Section of Legal Education and Admissions to the Bar have issued disclaimers of any law school rating system. Prospective law students should consider a variety of factors in making their choice among schools.
6. Law School Policy Encouraging Faculty to Engage in Reasonable Post- Examination Review with Students
It is recommended that a law school have a policy encouraging faculty members to engage in reasonable post examination review with students, preferably individual review upon request. Absent good cause, students should also have a
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right reasonably to review their examination papers. This does not mean that faculty members are obligated to review examinations individually with all students in every course. A reasonable policy may take into account the workload of individual teachers, the number of examinations in the course, the academic needs of the particular students requesting review, and the availability of review in courses throughout the school. Faculty members may choose to carry out such a policy using alternative means, including engaging in individual review of examinations upon student’s request, by holding a general review concerning the examination open to all students, or by providing an outline or exemplar of good examination answers.
7. Period of Retention of Examination Materials
Law schools approved by the American Bar Association should practice the policy of retaining examination booklets for a period of one year. This policy applies only if the examination booklet has not been returned to the student.
8. Retention of Records
Law schools approved by the American Bar Association should retain admission, financial aid and placement records for a one-year period.
9. Interference in Law School Clinical Activities
Improper attempts by persons or institutions outside law schools to interfere in the ongoing activities of law school clinical programs and courses have an adverse impact on the quality of the educational mission of affected law schools and jeopardize principles of law school self-governance, academic freedom, and ethical independence under the ABA Code of Professional Responsibility. In appropriate ways, the Council shall assist law schools in preserving the independence of law school clinical programs and courses.
10. Timely Grading of Law School Examinations
Law schools should adopt and maintain policies for timely grading of law school examinations. It is urged that such policies provide for completion of the grading and notification of results to the students not later than 30 days following the last examination of the term.
11. Pass/Fail Grading
At its August, 1970 meeting the Council of the Section of Legal Education and Admissions to the Bar decided to endorse the following statement issued earlier by the Law School Admission Council on the impact of pass/fail grading by undergraduate colleges upon the law school admission process. This statement
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has also been endorsed by the Executive Committee of the Association of American Law Schools.
The adoption by an increasing number of colleges and universities of pass/fail or similar grading systems for some or all of their students’ work has implications for the law school admissions process. When a student with a transcript bearing such grades seeks to enter law school, law school admissions committees will be deprived of data that have served them well in the past in making the admissions decision. In the belief that college and university faculties and administrations who are considering conversion of a conventional grading system to a pass/fail or some variant system may be interested in the possible effect of such grading systems upon their graduates who seek admission to law school, the Law School Admission Council issues this statement.
The Law School Admission Test (LSAT) was developed more than twenty years ago in response to an expressed need of law schools for additional data upon which to base their admissions decisions. Validity studies conducted over the years demonstrate that the LSAT score contributes significantly to the prediction of an applicant’s grades in law school and thus aids in the making of the admissions decision. These studies show that the LSAT score and the undergraduate grade-point average are the two best quantitative predictors, and that when they are used together they are better than either used separately. College grades represent both academic competence and achievement; the LSAT score largely indicates academic competence—the kind relevant to the study of law. The academic achievement of an applicant to law school indicates the extent of his preparation and motivation for the study of law. It is apparent, then, that college grades make a significant contribution to prediction of law school grades that is not supplied by the LSAT score.
Where an applicant for admission to law school submits a transcript in which all or virtually all of his grades are on pass/fail basis, and submits no other indication of his level of achievement in college, the admissions committee can make little specific use of his college work in predicting his law school grades. This means that this prediction must be based on the LSAT score, even though the committee would much prefer not to place sole reliance on the test scores in making this prediction. Even when such a transcript is supplemented by a narrative evaluation of the applicant by several of his teachers and deans, the committee can make only limited use of the college work in predicting performance in law school. Like interviews, these evaluations give the committee some help in making the admissions judgment, but they are largely helpful in deciding which risks to take and which to reject.
Where the applicant for admission to law school submits a transcript containing some conventional grades and some pass/fail grades, the admissions committee can develop a grade-point average for that portion of the student’s college work bearing the conventional grades. However, many admissions officers will not feel
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justified in assigning to that average the conventional weight. They may well assume that the student chose to receive a conventional grade in those courses in which he gauged his probabilities for a premium grade to be good. This indicates that his grade-point average so developed will overstate his academic competence and achievement as compared with the average of a student whose grades are all conventional. Furthermore, the committee may reasonably assume that the applicant did not make the same effort in the courses graded on a pass/fail basis as he did in those graded on the conventional basis. In short, a grade-point average based only upon the limited part of a student’s work in which conventional grades were assigned seems to overstate in a compound way the student’s general academic ability and achievement. Therefore, it is understandable that many admissions officers are already discounting such a grade-point average, and discounting it more if there is a large proportion of pass/fail grades.
The Council recognizes that the increased use of the pass/fail grading system—or some variant thereof—will mean that law school admissions committees and officers will place an increased reliance upon the LSAT score, a greater reliance than either the Council or law school admissions committee would like. The Council recognizes that there are many educational considerations to be taken into account by the faculty and administration in determining the appropriate grading system for that college or university. The Council, of course, respects the authority and judgment of the college and university faculty and administration in making that decision. The Law School Admission Council offers this statement concerning the effect of pass/fail grades upon the proper evaluation of a college graduate’s application for admission to law school only in the hope that it may be useful to college faculties and administrations in determining what grading system to use.
12. Student Complaints
Each law school approved by the American Bar Association should communicate in written form to its students the manner in which it receives and responds to student complaints.
13. Law School Admission Fees
The American Bar Association Section of Legal Education and Admissions to the Bar condemns the practice of requiring persons seeking admission to a law school to pay a fee, in addition to the regular application fee, to be placed on a list of persons who will be admitted if additional places become available, commonly known as a “waiting list.”
14. Law School Curricula
The Council is the governing body of the Section of Legal Education and Admissions to the Bar, and it also serves as the United States Department of
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Education recognized accrediting agency for J.D. programs in the United States. In its role as an accrediting authority the Council has adopted Standards and Interpretations for the Approval of Law Schools. A number of those Standards and Interpretations speak to the program of legal education that the Council believes a law school must offer to prepare its graduates for careers in the legal profession.
The Standards and Interpretations reflect the general principle that law schools should be given considerable discretion to fashion their own curricula, consistent with their varied and diverse missions. There are many more courses and subjects that might be appropriate and worthy of inclusion in a law school course of study than can be accommodated in a three-year full-time course of study (or its part- time equivalent). Choosing among many worthy and important courses, subjects and topics is a matter best left to each law school within the basic framework established by the Standards and Interpretations.
It is inconsistent with the Council’s role as an accrediting agency to support proposals that law schools include in their curricula matters that are not specifically required by the Standards. Moreover, a resolution adopted by the ABA House of Delegates to encourage law schools to include specific courses or subjects in their curricula will lead many to believe that such courses and subjects are related to accreditation requirements.
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RULES OF THE COURT OF APPEALS FOR THE ADMISSION OF ATTORNEYS AND COUNSELORS AT LAW
§ 520.6 Study of Law in Foreign Country; Required Legal Education
(a) General. An applicant who has studied in a foreign country may qualify to take the New York State bar examination by submitting to the New York State Board of Law Examiners satisfactory proof of the legal education required by this section.
(b) Legal education. The applicant must satisfy the educational requirements of either paragraph (1) or (2) of this subdivision.
(1) The applicant shall show fulfillment of the educational requirements for admission to the practice of law in a country other than the United States by successful completion of a period of law study in a law school or schools each of which, throughout the period of the applicant's study therein, was approved by the government or an authorized accrediting body in such country, or of a political subdivision thereof, to award a first degree in law, and satisfaction of the following requirements:
(i)(a) Durational requirements. The program and course of law study successfully completed by the applicant was substantially equivalent in duration to the legal education provided by an American Bar Association approved law school in the United States, and in substantial compliance with the instructional and academic calendar requirements of section 520.3(c)(1)(i) and (ii) and (d)(1) of this Part; and
(b) Substantive requirements. Such other country is one whose jurisprudence is based upon the principles of English Common Law, and that the program and course of law study successfully completed by the applicant were the substantial equivalent of the legal education provided by an American Bar Association approved law school in the United States.
(ii) Cure provision. An applicant who does not meet the requirements of subparagraph (i)(a) or (i)(b) may cure either the durational or substantive deficiency, but not both, under the following circumstances:
(a) Durational deficiency. If the applicant does not meet the durational requirements of subparagraph (i)(a), the applicant may cure the deficiency by providing satisfactory proof that the applicant has at least two years of foreign legal education that meets the substantive requirements of
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subparagraph (i)(b) and that the applicant has graduated from an LL.M. degree program at an American Bar Association approved law school in the United States meeting the requirements of subdivision (b)(3) of this section.
(b) Substantive deficiency. If the applicant does not meet the substantive requirements of subparagraph (i)(b), the applicant may cure the deficiency by providing satisfactory proof that the applicant meets the durational requirements of subparagraph (i)(a) and that the applicant has graduated from an LL.M. degree program at an American Bar Association approved law school in the United States meeting the requirements of subdivision (b)(3) of this section.
(2) The applicant shall show admission to practice law in a country other than the United States whose jurisprudence is based upon principles of English Common Law, where admission was based upon a program of study in a law school and/or law office approved by the government or an authorized accrediting body in such country, or of a political subdivision thereof, and which satisfies the durational requirements of subparagraph (1)(i)(a) but does not satisfy the substantive requirements of subparagraph (1)(i)(b) of this subdivision, and that such applicant has successfully completed an LL.M. degree program at an American Bar Association approved law school in the United States meeting the requirements of subdivision (b)(3) of this section.
(3) An LL.M. degree shall be satisfactory to qualify an applicant otherwise meeting the requirements of subsections (b)(1)(ii) or (b)(2) to take the New York State bar examination provided the following requirements are met:
(i) the program shall consist of a minimum of 24 credit hours (or the equivalent thereof, if the law school is on an academic schedule other than a conventional semester system) which, except as otherwise permitted herein, shall be in classroom courses at the law school in substantive and procedural law and professional skills;
(ii) a minimum of 700 minutes of instruction time, exclusive of examination time, must be required for the granting of one credit hour;
(iii) the program shall include a period of instruction consisting of no fewer than two semesters of at least 13 calendar weeks each, or the equivalent thereof, exclusive of reading periods, examinations and breaks, and shall not be completed exclusively during summer semesters, but a maximum of four credit hours may be earned in courses completed during summer semesters;
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(iv) the program shall be completed within 24 months of matriculation;
(v) all coursework for the program shall be completed at the campus of an American Bar Association approved law school in the United States, except as otherwise expressly permitted by subdivision (b)(3)(vii);
(vi) the program completed by the applicant shall include:
(a) a minimum of two credit hours in a course or courses in professional responsibility;
(b) a minimum of two credit hours in legal research, writing and analysis, which may not be satisfied by a research and writing requirement in a substantive law course;
(c) a minimum of two credit hours in American legal studies, the American legal system or a similar course designed to introduce students to distinctive aspects and/or fundamental principles of United States law, which may be satisfied by a course in United States constitutional law or United States or state civil procedure; credit earned in such course in excess of the required two credit hours may be applied in satisfaction of the requirement of subdivision (b)(3)(vi)(d); and
(d) a minimum of six credit hours in other courses that principally focus on subject matter tested on the New York State bar examination or the New York Law Examination prescribed in section 520.9(a)(3) of this Part.
(vii) The program completed by the applicant may include:
(a) credit hours in clinical courses, field placements, externships and other experiential learning courses, and
(b) a maximum of six credit hours in other courses related to legal training taught by members of the faculty of the law school or of the university with which the law school is affiliated, or taught by members of the faculty of any university or college with which the law school offers a joint degree program, provided such courses must be completed at the campus of such university or college in the United States.
(viii) No credit shall be allowed for correspondence courses, on-line courses, courses offered on DVD or other media, or other distance learning courses.
(c) Proof required. The applicant shall submit to the State Board of Law Examiners such proof of compliance with the provisions of this section as the Board may require.
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(d) Effective date for implementation. Except for the requirements of subdivisions (b)(3)(iii), (v) and (viii), which are effective May 18, 2011, the provisions of Rule 520.6(b)(3) shall first apply to LL.M. programs commencing during the 2012-13 academic year and to applicants applying to take the July 2013 bar examination, subject to the saving clause of Rule 520.1(b).
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AQF qualification titles
The AQF includes a policy regarding the issuance of qualifications and protection of tiles of AQF qualifications. The AQF Qualifications Issuance Policy (pages 69-74 AQF Second edition January 2013) includes the responsibility for, and conditions under which the qualifications may be issued and the requirements for the form of the qualification to be issued. Titles of AQF qualifications may only be used by institutions who are registered to issue those qualifications. Titles of AQF qualifications are the representation of the qualification type, level and field of study/discipline of the qualification and provide the basis for national and international recognition. AQF qualifications will have titles that unambiguously identify the qualification type, level and field of study/discipline as follows1: AQF Qualification Type Qualification Title level
Senior Secondary Certificate Titles will vary across jurisdictions; the use of the titles will be of Education accompanied by the statement: ‘(Certificate Title) is a Senior Secondary Certificate of Education within the Australian Qualifications Framework.’
1 Certificate I Certificate I (Field of study/discipline)
2 Certificate II Certificate II (Field of study/discipline)
3 Certificate III Certificate III (Field of study/discipline)
4 Certificate IV Certificate IV (Field of study/discipline)
5 Diploma Diploma (Field of study/discipline)
6 Advanced Diploma Advanced Diploma (Field of study/discipline)
6 Associate Degree Associate Degree (Field of study/discipline)
7 Bachelor Degree Bachelor (Field of study/discipline)
8 Bachelor Honours Degree Bachelor (Field of study/discipline) (Honours)
8 Graduate Certificate Graduate Certificate (Field of study/discipline)
8 Graduate Diploma Graduate Diploma (Field of study/discipline)
9 Masters Degree (Research) Master (Field of study/discipline)
Masters Degree 9 Master (Field of study/discipline) (Coursework)
9 Masters Degree (Extended) Master (Field of study/discipline) For exceptions that may be used, see below*
10 Doctoral Degree Doctor (Field of study/discipline)
10 Higher Doctoral Degree Doctor (Field of study/discipline)
1 Extract from AQF Second Edition January 2013 pages 72-73
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Accrediting authorities may make decisions about which of the words 'in' or 'of' are used in the title. Whilst it is common to list the qualification title before the field of study/discipline, the reverse order may be used. The field of study/discipline may be expressed broadly or explicitly and may also include sub-categories. The order and form of the title used for more than one qualification of the same or a different type offered simultaneously will unambiguously represent what the graduate has achieved. In higher education sector qualifications titles may indicate if the qualification has been achieved through research or coursework.
Exceptions to the use of AQF qualification titles: i The use of the title 'Juris Doctor' is permitted for a Masters Degree (Extended) for legal practice. ii. The use of the title 'Doctor of ...' is permitted for a Masters Degree (Extended) for five professions: medical practice; physiotherapy; dentistry; optometry and veterinary practice. iii Further exceptions may be permitted in accordance with the AQF Qualification Type Addition and Removal Policy. For exceptions:
. The qualification title and a statement that the qualification is an 'AQF level 9 Masters Degree' will appear on relevant certification documents, on any national, state/territory or institutional registers of qualifications, and in institutional information and promotional materials.
. The qualification may not be referred to as a Doctoral Degree in any written, oral or electronic information. Institutions wishing to make a submission to the AQF Council regarding the addition of professions to these exceptions must follow the policy and requirements set out in the Requirements for permission to use alternative title for Masters Degree (Extended). (See the AQF policy section of the website)
Abbreviating AQF qualification titles. Qualification titles may be abbreviated for use in postnominals, for example: CertIIBus - Certificate II in Business CertIVHosp - Certificate IV in Hospitality AdvDipBldDes - Advanced Diploma of Building Design AssocDEng - Associate Degree of Engineering GradCertIT - Graduate Certificate in Information Technology
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Use of titles by graduates
Postnominals use the abbreviation for the qualification type and field of study/discipline of the qualification. They are usually placed immediately following the graduate’s title and name. Individuals who have been awarded a Doctoral Degree at Level 10 on the AQF are entitled to use the title ‘Doctor’. The title ‘Doctor’ will not be used by those who hold an honorary award. An honorary award is not an AQF qualification. It is usually awarded by an issuing organisation to recognise a person’s public service or service to the organisation, or in recognition of distinguished contribution by the person in a field of academic endeavour. As such any certification documentation issued to an honorary award recipient will specify that the award is honorary.
Authority to issue qualifications Schools sector Each state or territory has legislative responsibility for authorising the issuance of the Senior Secondary Certificate of Education (SSCE). Local titles are used at state or territory level such as the Victorian Certificate of Education (VCE) in Victoria, the Higher School Certificate (HSC) in New South Wales. Vocational Education and Training (VET) sector The Commonwealth, state and territory governments have legislative responsibility for authorising the issuance of the qualification. The VET Standards provides the nationally agreed standards for the registration of Registered Training Organisations (RTOs) and provides the authority for RTOs to issue qualifications. Higher Education sector Australian universities are empowered by legislation to issue qualifications. Commonwealth, state and territory governments have established legislation for the issuance of qualifications by other recognised higher education providers. The Higher Education Standards Framework provides nationally agreed standards for the registration of higher education providers and provides the authority for higher education providers to issue qualifications
© Australian Qualifications Framework Council June 2013 Page 3
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澳大利亚 JD 项目中国留学生致教育部留学服务中心
尊敬的各位教育部留学服务中心领导： 您好！ 我们是澳大利亚 Juris Doctor 项目在读/毕业/准入学生(以下简称 JD 项 目)。作为未来的中国法律工作者，我们无时无刻不在关注着祖国法律行业的发 展动向，作为在海外学习的留学生/准留学生，我们时时刻刻都在关注教育部留 学服务中心发布的通知与指导。 我们感谢贵部在 7 月 2 日发布《关于对外国 Juris Doctor 证书认证办法 进行调整的公告》（《公告》）后认真听取学生们的反馈，并后续发布了《关于就 国外 Juris Doctor 证书认证办法进一步征求意见的通知》（《通知》），做出进 一步征集意见的决定。 墨尔本大学法学院 JD 项目留学生、新南威尔士大学法学院 JD 项目留学 生、悉尼大学法学院 JD 项目留学生、澳洲国立大学 JD 项目留学生及其他澳大 利亚大学法学院 JD 项目留学生自发组织，相互讨论后，一同希望借此次贵部调 研咨询的机会，对澳大利亚 JD 进行说明，并响应贵部《通知》，为贵部后续制 定关于就国外 Juris Doctor 证书认证办法提供参考。 我们提出 1. 能够将澳大利亚与美国 JD 学位的名称统一表述为“职业法律博士”， 与英文名称中“Doctor”一词表述一致； 2. 能酌情统一澳大利亚与美国 JD 学位认证证书中的认证表述，体现 JD 学 位在澳美学制以及法律业内认可的一致性；1 3. 若贵部决定对澳大利亚 JD 学位认证进行调整，建议以入学时间进行划 分，新办法将适用于办法颁布后的 JD 项目入学学生。
我们在此提出以下观点，并附上相应调研材料，敬请参考。
一、 澳大利亚 JD 学位与美国 JD 学位同等对待的合理性 首先，澳大利亚的 JD 学位与美国 JD 学位入学要求相同，学制及课程设置相 同，毕业后资质相同。 1. 入学要求相同 澳大利亚的法学院录取选拔方式与美国相同。 申请人皆需要以全日制本科学历作为基本条件。澳大利亚法学院和美国法 学院均参考本科成绩，申请人陈述，和工作教育经历等多项因素进行综合性选 拔。澳大利亚墨尔本大学法学院和美国各大法学院都将“法学院录取考试”成 绩（Law School Admission Test）作为 JD 重要的入学申请参考依据和录取标
1 《教育部留学服务中心国(境)外学历学位认证评估办法》中并未提出学位认证按学位发放国学位体系进行具体描述， 而按中华人民共和国有关法律、法规和国务院教育行政部门有关规章的规定，遵循公开公正、客观独立、科学诚信的原 则开展国（境）外学历学位认证工作。我们希望贵部以澳大利亚 JD 学位实质性的学位名，课程，学制等方面进行参考， 能酌情删除目前澳大利亚 JD 学历学位认证书中含有的“在澳大利亚学历框架体系中，职业法律博士学位证书与硕士学 位证书同属一个层次。”的表述，与美国 JD 项目在国内认证证书中表述一致，美国 JD 项目学位认证中并无相关表述。
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准。2新南威尔士大学对 JD 项目的语言入学要求为雅思 7，高于新南威尔士大学 艺术设计专业、医学、工程及科学类授课型硕士雅思 6.5 的语言要求。3悉尼大 学 JD 项目要求入学语言不低于雅思总分 7.5 且四个单项均不低于 7 分；4该标 准的严格程度超过大部分美国法学院，并与牛津大学法律博士的录取语言要求 持平。此外，澳大利亚法学院和美国法学院在录取时均参考申请人的本科绩 点、个人陈述、相关工作经验、教育经历等多项因素，进行综合性选拔。 以上举例可体现澳美 JD 项目入学要求相似。
2. 学制及课程设置相同 澳大利亚及美国（部分州除外）法律体系属“普通法系”。两国的 JD 均以 普通法法律教育为基础，学制时长相同，采用三年全日制的学制，课程设置相 同。悉尼大学 JD 项目和纽约大学 JD 项目第一年课程设置大体一致，均包含合 同法、刑法、侵权法、刑事流程法、宪法、物权法、法律研究方法等。5新南威 尔士大学法学院与美国及其他国家地区法学院长期合作进行交换项目，新南威 尔士大学法学院 JD 项目的同学在完成 72 学分后可参加交换项目可直接注册美 国法学院课程，免除其他美国法律前置课程要求。6 以上举例可体现澳美 JD 学制及课程设置的一致性。
3. 毕业后资质相同 澳大利亚 JD 毕业生与美国 JD 毕业生均可获得学位所在国律师从业资格， 且澳大利亚 JD 学位为美国律界认可，可以凭澳大利亚 JD 学位无需另外辅修美 国法律转换课程，直接参加部分美国州内律师职业资格考试，通过后可直接获 得美国律师资格。例如，根据纽约《律师职业资格上诉院规则第五百二十部 分》（Part 520. Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law）中第 520.6 条，在审核美国国外法学生 是否能够参加纽约州法律师资格考试，必须满足国外法学教育在学时与学习内 容上“很大程度上等同于”美国法学院。7 澳大利亚 JD 项目毕业生可直接参加美国部分州内律师职业资格考试，可反 映澳大利亚 JD 项目满足学时与内容上很大程度等同于美国法学院的考试资格， 由此可证澳大利亚 JD 与美国 JD 学位的同质性。
4. 澳大利亚 JD 学位参照美国 JD 学位设立 澳大利亚的 JD 学位参照美国的 JD 学位设立，与美国 JD 学制同根同源。
2附件【1】： 墨尔本大学 JD 项目入学要求网址/文件：https://law.unimelb.edu.au/study/jd#entry- requirements 3附件【2】： 新南威尔士大学入学语言要求文件 4附件【3】：悉尼大学法学院 JD 项目入学语言要求与牛津法律研究博士入学语言要求对比图 5附件【4】：悉尼大学 JD 项目第一学年课程设置与纽约大学 JD 项目课程设置对比 6附件【5】： 新南威尔士大学 JD 交换项目信息表： https://www.law.unsw.edu.au/sites/default/files/imce/files/UNSW- Law_exchange_information_sheet_jd_current.pdf； 7 附件【6】： 纽约《律师职业资格上诉院规则第五百二十部分》，请参考 Part 520. Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law）中第 520.6 条。
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1) 美国 JD 学位被视为博士级别 Juris Doctor 学位在美国当下被认为是等同于博士级别的高等教育学位 (Advanced Professional Degree). 美国律师协会（American Bar Association）曾经发文专门要求美国 JD 至少在学术领域的认定不能低于博士 级别（Doctor of Philosophy, Ph.D.）。 8 Juris Doctor 的产生源于美国法学教育的在十九世纪的变革，侧重于典型 性案例教学模式和推理技法教学模式，严格要求三年的全日制学习。最早源于 美国法学教育，且在美国的法学教育历史长河中，其法学教育模式从最早英国 殖民时期的“学徒式”（“apprenticeship”）教育模式，经过了十九世纪的 “学科式”（“scientific study”）教育模式运动，最终形成了现今的学科 性与实践性并行的法学教育模式。
2) JD 学历是澳大利亚学历体系中 master level 的特殊划分 从学术教育的角度，澳大利亚的学历体系主要划分为学士（bachelor）、硕 士（master）、 博士(Ph.d.)。 JD 学位引进到澳大利亚后，由于其专业教育的特性，澳大利亚各界曾就 JD 如何融入学术学历框架进行了广泛的讨论。澳大利亚学历层级划分 （Australian Qualifications Framework)9明确说明 Juris Doctor 即“法律 博士” 中‘doctor’（博士）一词在该学历名称中的使用。同时，在新南威尔 士大学、墨尔本大学、悉尼大学、澳洲国立大学等澳大利亚法学院 JD 项目毕业 证书中并未出现“Master Degree”字样，而是直接表述为“the degree of JURIS DOCTOR”，无“等同于硕士学位”相关表达，10与普通硕士学位有明显区 分，足以体现 JD 项目在澳大利亚学历体系中的特殊性。
二、澳大利亚 JD 学位与美国 JD 学位区别对待的不合理性 目前澳大利亚 JD 学历学位认证书中含有“在澳大利亚学历框架体系中， 职业法律博士学位证书与硕士学位证书同属一个层次”的表述。根据过往的咨 询，贵部此次调整很大程度取决于澳大利亚本土将 JD 划分为硕士层级学位。 《教育部留学服务中心国(境)外学历学位认证评估办法》中并未提出学位认证 按学位发放国学位体系进行具体描述，而按中华人民共和国有关法律、法规和 国务院教育行政部门有关规章的规定，11遵循公开公正、客观独立、科学诚信的 原则开展国（境）外学历学位认证工作。12我们希望贵部以澳大利亚 JD 学位实 质性的学位名，课程，学制等方面进行参考，能酌情删除目前澳大利亚 JD 学历 学位认证书中含有的“在澳大利亚学历框架体系中，职业法律博士学位证书与 硕士学位证书同属一个层次。”的表述，13与美国 JD 项目在国内认证证书中表
8 附件【7】：《美国律师协会申明》；见附件【7】第 145 页标题 2。 9 附件【8】： 澳大利亚学历层级划分（Australian Qualifications Framework)；见附件【8】第 2 页， “The use of the title 'Juris Doctor' is permitted for a Master Degree (Extended) for legal practice.” 10 附件【9】： 新南威尔士大学、墨尔本大学、悉尼大学、澳洲国立大学等澳大利亚法学院 JD 项 目毕业证书 11 《教育部留学服务中心国(境)外学历学位认证评估办法》第 1 条 12 《教育部留学服务中心国(境)外学历学位认证评估办法》第 3 条 13 附件【10】：澳大利亚大学 JD 项目学位认证证书
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述一致；美国 JD 项目学位认证中并无相关表述。14
1. 该表述的逻辑不符合国际认证通用逻辑 英美法系国家的 JD 学位认证均按照认证国本国对于 JD 的划分来确定外国 JD 的定位。澳大利亚 JD 学位在美国是被美国认定为博士层级的学位，认定结 果与美国本土 JD 学位一致。若澳大利亚 JD 毕业生赴美，在美国学位认证中将 被认定为博士层级学位。因此，在中国认定澳大利亚 JD 学历应与美国的 JD 认 定结果一致。 希望贵部能够统一澳洲与美国 JD 学位在中国本国的认证标准和表述。
2. 即便贵部在进行认证时参考澳大利亚学位等级划分的划分，也应当 注意到该文件对 JD 学位的特殊表述和安排 在澳大利亚虽然 JD 学位属于硕士级别，但是 JD 学位本身的特殊性与国内 的“硕士学位”并不完全对等。新南威尔士大学、墨尔本大学、悉尼大学、澳 洲国立大学等澳大利亚法学院 JD 项目毕业证书中并未出现“Master Degree” 字样，而是直接表述为“the degree of JURIS DOCTOR”，无“等同于硕士学 位”相关表达，15目前学位认证证书上中出现的“职业法律博士学位证书与硕士 学位证书同属一个层次”的语句，不符合贵部‘写实性描述’的原则。
3. 国内学位认证应区分 JD 学位与一年制法学硕士（Master of Law, LL.M） 有别于一年制的法学硕士，三年制 JD 无论是在课程设置上或是课程难度 上都不同于 LL.M 。16JD 学位与法学硕士在认证上有必要予以区分，体现 JD 学 位的特殊性。
4. 中国国内关于外国学位学历认证办法并无要求认证必须根据学位获 取国的学位划分来决定中国学位认证的划分。 2018 年版《教育部留学服务中心国(境)外学历学位认证评估办法》第 5 条认证内容中并没有要求在认证专业（例如：JD） 时参照在境外他国（例如： 澳大利亚）学历框架体系中的咨询意见。其次，澳大利亚 JD 学位在美国同样被 认定为不低于博士层级的学位；相似的，英美法系国家的 JD 学位认证均按照认 证国本国对于 JD 项目的划分来确定外国 JD 的定位，而非学位发放国对 JD 学位 的划分。 综上考虑，在对澳大利亚 JD 项目进行认证时应结合其国际普遍认可程度， 希望贵部能够统一澳大利亚 JD 项目和美国 JD 项目在中国本国的认证标准和表 述。
5. 澳大利亚将 JD 划分为硕士，主要是受其移民加分政策的影响 在澳大利亚，相较于硕士学位，博士享有着更有利的移民条件。由于澳大 利亚并不希望太过放宽其移民政策，所以某种程度上也导致了澳大利亚将 JD
14 附件【11】：美国大学 JD 项目学位认证证书 15 附件【9】：新南威尔士大学、墨尔本大学、悉尼大学、澳洲国立大学 JD 项目毕业证书 16 附件【12】： 新南威尔士大学 Postgraduate Law degree（JD 及 LLM 项目信息）链接： https://www.international.unsw.edu.au/faculty/law-postgraduate-degree-programs
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的学位层级划分为硕士。然而，从我国鼓励海外留学人员归国的角度出发，完 全照搬陈述澳大利亚 JD 的学历划分是缺乏依据和合理性的。
三、区别对待不利于澳大利亚 JD 学生回国发展意向和中国法律事业的发 展 在当前的国际经济形势下，英美法系规则(该法律体系包含以英、美、加、 澳为代表的一系列国家或地区)对于国际商业体系的运行和规范依然起着至关重 要的作用。当前国内一带一路建设中，紧缺具有国际视野的法律人才。我们不 难看到，由于对国外法律体系的知识真空，我国企业在国际化的进程中往往遭 遇来自西方国家的阻力和掣肘。因此，我国对熟练掌握中国与西方法律知识的 复合型人才存在越来越庞大的需求。 而拥有三年专业英美法系教育经历以及澳大利亚律师从业资格的广大 JD 归国毕业生们正是此类人才队伍中的先锋，是为中国企业走向全球保驾护航的 执行者。我们的 JD 留学生正是怀着这样的理想“走出去”的。随着中国进一 步的开放和国际化程度的提高，势必有越来越多的中国学生申请 JD。相应地， 回归国内法律行业的澳大利亚 JD 毕业生也会越来越多。澳大利亚 JD 在国内 的学历认证不仅关系到我们这些海外求学的中国学生回国后个人发展问题，也 会影响到未来申请澳大利亚 JD 的中国国际学生。
1. 中国学生赴澳攻读 JD 的现状和趋势 有别于几年前学生大都单一选择赴美攻读 JD 的情况，近年来中国留学生 赴澳攻读 JD 学位的人数明显增多。且目前就读于澳大利亚大学法学院 JD 项 目的中国学生，大都来自国内重点大学，学习成绩优异。一部分学生已经在国 内法律行业有所作为，并希望能够更进一步拥有国际化视野和知识结构。
2. 澳大利亚著名法学院的国际声誉 在 2019 年 QS 17世界大学法学专业排行中，澳大利亚墨尔本大学法学院排 名第 6 名，悉尼大学法学院排名第 12 名，新南威尔士大学法学院排名第 14 名,澳洲国立大学法学院排名第 15 名。澳大利亚法学院的国际声誉已超过很大 一部分老牌知名美国法学院。
3. 区别对待对澳大利亚 JD 毕业归国学生造成的负面影响 非法律行业企业在聘用和录取人才时，很大程度依赖于贵部的认证结果。 对于同质学历认证结果的不统一，首先将导致这些高学历高层次人才在求职、 落户等诸多方面受到不利的影响，极大削弱了他们在法律人才市场的竞争力， 进而打击了他们归国发展、投入到国家经济与法制建设中的积极性。
4. 区别对待将可能造成赴美攻读 JD 的单一化局面，不利于法律人才 多元化 贵部拟做出的决定，实际上给予了与澳大利亚 JD 同质的美国 JD 留学生在 回国认证，求职等等方面巨大的优势。这种优势将直接造成往后 JD 学生择校
17 附件【13】QS 法学院排名链接：https://www.topuniversities.com/university- rankings/university-subject-rankings/2019/law-legal-studies
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时的单一化。在同样的金钱和时间成本面前，绝大多数学生将会选择赴美。 中国的经济建设，企业发展和法律行业发展需要更多元化的国际法律人 才。此种区别对待，从长远上看，将造成法律人才的单一化。在澳大利亚攻读 JD 的学生，普遍具有良好的思想素质和不亚于美国法学院学生的学术水平，同 时也有强烈的归国发展意愿。这些高学历高层次人才的流失，对国家而言是很 大的损失，亦不利于中国特色社会主义市场经济以及法治建设。
四、信赖利益的保护：老人老办法，新人新办法 国内的学位认证结果是众多留学生出国留学前的重要考量因素。根据多名 澳大利亚 JD 在读/往届生反馈，在该《办法》出台前，他们从留学生服务中心 得到的认证结果均显示澳大利亚与美国 JD 回国均认证为“职业法律博士学 位”。故而，如果贵部突然施行《办法》，必定会与贵部之前的实践操作相违 背，继而损害此批在读留学生的信赖利益。 若贵部决定对澳大利亚 JD 学位认证进行调整，建议以入学时间进行划分， 新办法将适用于办法颁布后 JD 入学学生，例如：2020 年后 JD 入学学生。
五、总结 综合考虑上述各方面的因素, 我们恳请教育部各位领导能够：
1. 能够将澳大利亚与美国 JD 学位的名称统一表述为“职业法律博士”， 与英文名称中“Doctor”一词表述一致；
2. 酌情删除澳大利亚 JD 学位认证中“在澳大利亚学历框架体系中，职业 法律博士学位证书与硕士学位证书同属一个层次。”的表述，与美国 JD 学位认 证表述一致;
3. 若贵部决定对澳大利亚 JD 学位认证进行调整，建议以入学时间进行划 分，新办法将适用于办法颁布后 JD 入学学生。
感谢各位领导百忙之中查阅此封联名信。我们作为部分澳大利亚大学 JD 项 目留学生对贵部在此次调整意见征询中所表现出来的专业，认真，及时和耐心 表示衷心的感谢。非链接附件请见邮件附件压缩文档。
此致
敬礼
澳大利亚 JD 项目留学生 2019 年 8 月 22 日
（签名见下页）
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澳大利亚 JD 项目联名信学生签名（排序不分先后）
新南威尔士州 新南威尔士大学：
蔡楚婧，新南威尔士大学 Juris Doctor 2016 级毕业生，广东外语外贸大学英 语高级翻译专业，新闻学（国际新闻）专业 2016 届本科毕业生
詹惠迪，新南威尔士大学 Juris Doctor 2018 级，吉林大学法学院法学专业 2016 届本科毕业生
陶树仁，新南威尔士大学 Juris Doctor 2016 级毕业生，浙江大学宁波校区法 律与政治学院 2015 届本科毕业生
郑研，新南威尔士大学 Juris Doctor 2019 级，华东政法大学国际法学院 2019 届本科毕业生
張齡心，新南威尔士大学 Juris Doctor 2019 级，华东政法大学法律学院 2019 届本科毕业生
詹娅菲，新南威尔士大学 Juris Doctor 2018 级，西南政法大学法学专业 2017 届本科毕业生
李林蔚，新南威尔士大学 Juris Doctor 2018 级，暨南大学法学专业 2017 届本 科毕业生
石锐，新南威尔士大学 Juris Doctor 2019 级，北京师范大学法学院 2019k 届 本科毕业生
李勇男，新南威尔士大学 Juris Doctor 2018 级，华东政法大学法学专业 2016 届本科毕业生
曾彦，新南威尔士大学 Juris Doctor 2017 级，深圳大学法学院 2016 届本科毕 业生
肖晶今，新南威尔士大学 Juris Doctor 2019 级，墨尔本大学 2019 届硕士毕业 生
魏笑，新南威尔士大学 Juris Doctor 2017 级，西南政法大学 2016 届本科毕业 生
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袁思流，新南威尔士大学 Juris Doctor 2019 级，美国埃默里大学 2017 届 L.L.M
恩和赛罕，新南威尔士大学 Juris Doctor 2017 级，上海外国语大学法学院 2016 届本科毕业生
刘璐，新南威尔士大学 Juris Doctor 2017 级，中国政法大学国际法学院 2016 届本科毕业生
聂静娴，新南威尔士大学 Juris Doctor 2017 级，四川大学新闻传播学院 2016 届本科毕业生
史学璐，新南威尔士大学 Juris Doctor 2018 级，暨南大学法学专业 2017 届本 科毕业生
孙乐，新南威尔士大学 Juris Doctor 2018 级，上海交通大学 2017 届本科毕业 生
许嘉锡，新南威尔士大学 Juris Doctor 2018 级，华东政法大学 2017 届本科毕 业生
宋梦涵，新南威尔士大学 Juris Doctor 2017 级， 山东大学法学专业 2016 届 本科毕业生
范佳宸，新南威尔士大学 Juris Doctor 2017 级，华东政法大学国际法学院 2014 届本科毕业生
陈络绎，新南威尔士大学 Juris Doctor 2014 级毕业生，宾夕法尼亚大学 2011 届硕士毕业生，纽约大学 2008 届本科毕业生
胡思雨，新南威尔士大学 Juris Doctor 2017 级，武汉大学 2017 届本科毕业生
朱清，新南威尔士大学 Juris Doctor 2016 级，西南政法大学 2009 级民商法硕 士毕业生
吴逸飞，新南威尔士大学 Juris Doctor 2019 级，美国俄亥俄州立大学 2018 届本科毕业生
王武昊，新南威尔士大学 Juris Doctor2019 级，本科北京科技大学毕业
冯锦文，新南威尔士大学 Juris Doctor 2019 级，浙江大学光华法学院 2018 届 本科毕业生
贾晋，新南威尔士大学 Juris Doctor 2018 级，浙江工业大学法学院 2012 届本
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科毕业生
徐梦莹，新南威尔士大学 Juris Doctor 2017 级，天津大学法学院 2016 届本 科毕业生
刘畅，新南威尔士大学 Juris Doctor 2017 级，华南农业大学法学专业 2016 届 本科毕业生。
詹远，新南威尔士大学 Juris Doctor 2018 级，广东财经大学 2016 届法学院/ 金融学院本科毕业生。
王丽，新南威尔士大学 Juris Doctor 2017 级
郑玲玲，新南威尔士大学 Juris Doctor 2018 级。美国普渡大学管理学院 2016 年本科毕业生
刘铮，新南威尔士大学 Juris Doctor 2018 级(在读），华东政法大学政治学与 公共管理学院 2013 级毕业生
林缤，新南威尔士大学 Juris Doctor 2017 级
常畅，新南威尔士大学 Juris Doctor 2018 级在读，北京航空航天大学法学院 2016 届本科毕业生，
汪宓，新南威尔士大学 Juris Doctor 2017 级（在读），西南政法大学民商法学 院 2016 届本科毕业生
余业辉，新南威尔士大学 Juris Doctor 2017 级（在读），西北政法大学 2016 届本科毕业生
张思越，新南威尔士大学 juris doctor 2016 级。中山大学岭南学院经济学专 业 2011 级
毕然，新南威尔士大学 Juris Doctor 2017 级(毕业)
赵佳琦，新南威尔士大学 Juris Doctor 2017 级（毕业），哈尔滨工业大学 2012 级本科毕业生
李骏超，新南威尔士大学 Juris Doctor 2017 级（在读），北京语言大学 2012 级西班牙语专业本科毕业生
李欣南，新南威尔士大学 Juris Doctor 2017 级（毕业），中国人民大学 2016 届本科毕业生
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王一男 新南威尔士大学 Juris Doctor 2017 级（在读），西南政法大学经济法 学院 2016 届本科毕业生
张琦玮 新南威尔士大学 Juris Doctor 2017 级 （毕业），西北政法大学国际法 学院 2016 届本科毕业生
邓益健，新南威尔士大学 Juris Doctor 2015 级（毕业），广东工业大学华立学 院市场营销专业 2015 级毕业生。
罗璇，新南威尔士大学 Juris Doctor 2014 级毕业生
邹欣岑，新南威尔士大学 Juris Doctor 2019 级，西南政法大学法学专业 2019 级本科毕业生。
鲜露宇，新南威尔士大学 Juris Doctor 2015 级毕业生，西南政法大学 法学专 业 2010 级毕业生
尹多，新南威尔士大学 Juris Doctor 2018 级毕业生，首都医科大学 法学专业 2017 级毕业生
冯晟楠，新南威尔士大学 Juris Doctor 2016 级毕业生，南开大学 2011 级法学 毕业生
高迪，新南威尔士大学 Juris Doctor 2012 级毕业生，华东政法大学 2007 级 英语专业、法学专业毕业生
邵白芸，新南威尔士大学 Juris Doctor 2017 级毕业生，新加坡国立大学 Master of Business Law 2012 级毕业生，华东政法大学 2008 级国际经济法专 业毕业生
林妍韵，新南威尔士大学 Juris doctor 2019 级学生
邵文娜，新南威尔士大学 Juris Doctor 2018 级（在读），浙江大学 法学专业 2018 届毕业生
孙宇彤 新南威尔士大学 Juris Doctor
陈文婷，新南威尔士大学 Juris Doctor 2017 级毕业生，上海对外经贸大学国 际经济法专业 2016 届毕业生
舒润午，新南威尔士大学 Juris Doctor 2019 级，中央民族大学法学硕士 2018 级毕业生
陈昱伊，新南威尔士大学 Juris Doctor 2019 级，广东工业大学（本科）法学
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专业 2018 级毕业生
王新月，新南威尔士大学 Juris Doctor 2018 级（在读），上海财经大学（本 科）国际金融法专业 2017 级毕业生
周影珠， 新南威尔士大学 Juris Doctor 2016 级（毕业），上海对外经贸大学 国际经济法 2011 级毕业生
江圆梦，新南威尔士大学 Juris Doctor 2016 级（毕业），西南政法大学应用法 学 2011 级毕业生
王越，新南威尔士大学 Juris Doctor 2016 级（毕业），华东政法大学（本科） 大学法学专业 2011 级毕业
刘恬然，新南威尔士大学 Juris Doctor 2017 级（毕业），中山大学大学法学专 业 2016 届
悉尼大学：
连月瑶，悉尼大学 Juris Doctor 2017 级（在读），University of British Columbia 2016 届本科毕业生
何雨萌，悉尼大学 Juris Doctor 2017 级（毕业），国际关系学院 2016 届本科 毕业生
颜辰扬，悉尼大学 Juris Doctor 2017 级（在读），心理学系 2015 届本科毕业生
卢星光，悉尼大学 Juris Doctor 2019 级 (在读) ，University of Emory 2018 届硕士毕业生
沈旭栋， 悉尼大学 Juris Doctor 2019 级 (在读)，大连理工大学 2018 届本科 毕业生
路唅，悉尼大学 Juris Doctor 2017 级（在读），西南政法大学 2016 届本科毕 业生；
郭诗卉，悉尼大学 Juris Doctor 2017 级（在读），中国人民大学 2013 届硕士毕 业生，中国地质大学 2009 届本科毕业生
陈茜，悉尼大学 Juris Doctor 2019 级（在读），悉尼大学 2018 届文化研究荣誉 学士
魏诗意，悉尼大学 Juris Doctor 2019 级 (在读) ，Pennsylvania State
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University 2017 届硕士毕业生
罗瑞柬，悉尼大学 Juris Doctor 2017 级（毕业），北京外国语大学 2016 届本科 毕业生
杨涵景，悉尼大学 Juris Doctor 2019 级（在读），中南财经政法大学 2017 届本 科毕业生
张海晴，悉尼大学 Juris Doctor 2019 级 （在读），Smith College 2018 届本 科毕业生
王雯，悉尼大学 Juris Doctor 2017 级（毕业），中国人民大学 2015 届本科毕业 生
王宇飞，悉尼大学 Juris Doctor 2017 级（毕业），中国政法大学 2013 届本科毕 业生，中国政法大学 2016 届硕士毕业生
张璐坤，悉尼大学 Juris Doctor 2018 级（在读），悉尼大学 Master of Laws 2017 届毕业生，清华大学 2016 届本科毕业生
袁旖静，悉尼大学 Juris Doctor 2017 级（在读），中山大学 2016 届本科毕业生
叶之梦，悉尼大学 Juris Doctor 2019 级（在读），悉尼大学 Bachelor of Arts 2018 级毕业生
孙颖，悉尼大学 Juris Doctor 2019 级（在读），悉尼大学 Master of Education 2018 级毕业生
何斯天，悉尼大学 Juris Doctor 2019 级（在读），香港浸会大学应用经济系 2016 级本科毕业生
李玟乐，悉尼大学 Juris Doctor 2019 级 （在读），墨尔本大学 Master of International Relations 2017 级毕业生，墨尔本大学 Bachelor of Arts 2014 级毕业生
徐璐璐，悉尼大学 Juris Doctor 2020 级准入学生，英国伯明翰大学 international commercial law 2014 级毕业生，辽宁大学 2009 级法学
魏冰璇，悉尼大学 Juris Doctor 2017 级 （在读），悉尼大学 Bachelor of Commerce (Liberal Studies) 2016 级毕业生
张汇文，悉尼大学 Juris Doctor 2020 级准入学生，东北财经大学萨里国际学院 Tourism Management 2018 届毕业生
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张恩云，悉尼大学 Juris Doctor 2020 级 宁波诺丁汉大学， 国际关系 + 德语专业，2019 届毕业生
陈怡，悉尼大学 Juris Doctor 2017 级毕业，广东外语外贸大学(本科) 法律专 业 2010 级毕业生
悉尼科技大学：
汤则远，悉尼科技大学 Juris Doctor 2017 级，中国政法大学 2017 届硕士毕业 生
黄瑶，悉尼科技大学 Juris Doctor 2017 级
冯劲轩，悉尼科技大学 金融，法律专业本科在读 2020 届 Juris Doctor
王龙琪，悉尼科技大学 Juris Doctor 2018 级（在读），郑州大学 2018 届本硕 连读毕业生，University of St. Thomas 2017 届 L.L.M
纽卡斯尔大学：
陈劼晗，纽卡斯尔大学 Juris Doctor 2020 年准入学生。复旦大学财务管理专 业 2009 届毕业生
首都领地(堪培拉) 澳大利亚国立大学：
沈大博，澳大利亚国立大学 Juris Doctor 2019 级（在读），吉林大学 2016 届 本科毕业生
胡翔玥，澳大利亚国立大学 Juris Doctor 2017 级（在读），吉林大学 2013 届 本科毕业生
周宇，澳大利亚国立大学 Juris Doctor 2019 级（在读），中国传媒大学 2019 届本科毕业生
张惟为，澳大利亚国立大学 Juris Doctor 2019 级（在读），澳门大学人文学院 2019 级毕业生
吴玥，澳大利亚国立大学 Juris Doctor 2018 级（在读），北京第二外国语学院 2013 级国际法学院毕业生
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孙思齐，澳大利亚国立大学 Juris Doctor 2017 级（在读），南京师范大学法学 专业 2014 级本科毕业生
王翕，澳大利亚国立大学 Juris Doctor 2017 级（在读），澳洲国立大学_Bachelor of Arts 2017 级本科毕业生
维多利亚州 墨尔本大学：
卓楷程，墨尔本大学 Juris Doctor 2018 级(在读), 莫纳什大学 2017 届硕士 毕业生，华东政法大学 2015 届本科毕业生
皮子杭，墨尔本大学 Juris Doctor 2019 级（在读），中国人民大学 2018 届本 科毕业生
李姝，墨尔本大学 Juris Doctor 2019 级（在读），中国人民大学 2018 届本科 毕业生
靖昊，墨尔本大学 Juris Doctor 2019 级 （在读），上海对外经贸大学 2015 届 硕士毕业生，上海对外经贸大学 2012 届本科毕业生
陈晨，墨尔本大学 Juris Doctor 2018 级（在读），中国人民大学 2016 届本科 毕业生
赵皓月，墨尔本大学 Juris Doctor 2018 级（在读），浙江大学 2017 届本科毕 业生
何妍君，墨尔本大学 Juris Doctor 2018 级（在读），北京大学 2016 届本科毕 业生
骆敏婷，墨尔本大学 Juris Doctor 2019 级（在读），中国人民大学 2018 届本 科毕业生
闵盈颖，墨尔本大学 Juris Doctor 2019 级（在读），墨尔本大学 2018 届本科 毕业生
麦嘉琪， 墨尔本大学 Juris Doctor 2018 级（在读），中山大学 2017 届本科毕 业生
李思昕，墨尔本大学 Juris Doctor 2019 级（在读），康奈尔大学 2018 届本科 毕业生
秦辕东，墨尔本大学 Juris Doctor 2019 级（在读），外交学院 2017 届本科毕
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业生
夏天真，墨尔本大学 Juris Doctor 2018 级（在读），对外经济贸易大学 2017 届本科毕业生
李晓楠，墨尔本大学 Juris Doctor 2019 级（在读），墨尔本大学 2018 届本科 毕业生
吴雨薇，墨尔本大学 Juris Doctor 2018 级（在读），墨尔本大学 2017 届本科 毕业生
朱彦杰，墨尔本大学 Juris Doctor 2019 级（在读），杜伦大学 2017 届硕士毕 业生，华东政法大学 2016 届本科毕业生
蔡月芸，墨尔本大学 Juris Doctor 2019 级（在读），厦门大学 2018 届本科毕 业生
檀天元，墨尔本大学 Juris Doctor 2019 级（在读）
杨熙川，墨尔本大学 Juris Doctor 2019 级（在读），美国波士顿大学 LLM2018 届硕士毕业生
尹雯，墨尔本大学 Juris Doctor 2018 级（在读），Fordham University 2017 届本科毕业生
董禹良，墨尔本大学 Juris Doctor 2019 级（在读），香港中文大学 2017 届硕 士毕业生
郭佳蕙，墨尔本大学 Juris Doctor 2019 级（在读），武汉大学 2018 级本科毕 业生
郑然，墨尔本大学 Juris Doctor 2019 级（在读），美国爱荷华大学 2015 届硕 士毕业生，中国人民大学 2011 届本科毕业生
刘愿君，墨尔本大学 Juris Doctor 2019 级（在读）
史修齐, 墨尔本大学 Juris Doctor 2019 级（在读）
王建普，墨尔本大学 Juris Doctor 2019 级(在读), 乔治城大学法律中心 2017 届硕士毕业生，中山大学 2016 届本科毕业生
刘笑天，墨尔本大学 Juris Doctor 2018 级（在读），北京邮电大学 2017 届本 科毕业生
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沈晨智，墨尔本大学 Juris Doctor 2019 级（在读），美国埃默里大学 2018 届 本科毕业生
澹台瑞丰，墨尔本大学 Juris Doctor 2019 级（在读），美国西北大学 2018 届 硕士毕业生，华东政法大学 2017 届辅修学士，华东师范大学 2017 届本科毕业 生
张凤池，墨尔本大学 Juris Doctor 2018 级（在读），华东政法大学 2016 届本 科毕业生
黄君杰，墨尔本大学 Juris Doctor 2019 级（在读），西南政法大学 2015 届本 科毕业生
卢程稳，墨尔本大学 Juris Doctor 2019 级（在读），上海财经大学 2015 届本 科毕业生
刘千硕，墨尔本大学 Juris Doctor 2019 级（在读）
王博，墨尔本大学 Juris Doctor 2019 级（在读），墨尔本大学 2017 届本科毕 业生
蔡鹄宇，墨尔本大学 Juris Doctor 2019 级（在读），美国埃默里大学 LLM 2018 届毕业生
刘峙学，墨尔本大学 Juris Doctor 2018 级（在读），中国政法大学 2016 届本 科毕业生
庞凯迪，墨尔本大学 Juris Doctor 2019 级（在读），南京大学 2018 届本科毕 业生
伍楚妍，墨尔本大学 Juris Doctor 2018 级（在读），昆士兰大学 2017 届本科 毕业生
赖智轩，墨尔本大学 Juris Doctor 2018 级（在读），墨尔本大学 2016 届本科 毕业生
段然，墨尔本大学 Juris Doctor 2019 级（在读），美国埃默里大学 LLM 2016 届毕业生，北京中医药大学 2015 届本科毕业生
刘维奇，墨尔本大学 Juris Doctor 2018 级（在读）
王思琪，墨尔本大学 Juris Doctor 2018 级（在读）
刘天枢，墨尔本大学 Juris Doctor 2018 级 （在读），加州大学伯克利分校
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2015 届毕业生
杜雨洁，墨尔本大学 Juris Doctor 2017 级（在读）
李熙，墨尔本大学 Juris Doctor 2018 级（在读），哈尔滨工业大学 2017 届本 科毕业生
孙道远，墨尔本大学 Juris Doctor 2018 级（在读）
周之仪，墨尔本大学 Juris Doctor 2019 级（在读），北京大学 2018 届本科毕 业生
高一格，墨尔本大学 Juris Doctor 2017 级（在读）
张海伦，墨尔本大学 Juris Doctor 2019 级（在读），中国政法大学 2018 届本 科毕业生
陈喆立，墨尔本大学 2015 级 Juris Doctor（毕业）；Monash 2011 届商学硕 士；复旦大学 2002 级法学学士
田家维，墨尔本大学 Juris Doctor 2018 级（在读），墨尔本大学机械工程 2016 届本科毕业生
薛云崧，墨尔本大学 Juris Doctor 2019 级 （在读），中国政法大学 2018 届本 科毕业生
陈碧宵，墨尔本大学 Juris Doctor 2017 级（在读），对外经济贸易大学 2016 届毕业生
戴苏裕，墨尔本大学 Juris Doctor 2017 级（在读），对外经济贸易大学 2016 届本科毕业生
杨凯茜，墨尔本大学 Juris Doctor 2017 级（已毕业），北京大学 2014 届本科 毕业生 郑君琳，墨尔本大学 Juris Doctor 2018 级在读
梁苑晓雪，墨尔本大学 Juris Doctor 2019 级，墨尔本大学 Bachelor of Commerce 2016 级毕业生
陈栎米，墨尔本大学 Juris Doctor 2020 级准入学生
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莫纳什大学：
陆叶子，莫纳什大学 Juris Doctor 2017 级（毕业），莫纳什大学 Master of Commercial Law 2016 级毕业生，上海大学法学院 2015 届本科毕业生 K
关琳琳， 莫纳什大学 Juris Doctor 2017 级（在读），加州州立大学长滩分 校 Bachelor of Science in Business Administration -Marketing 2013 级 毕业生。
于偲懿，莫纳什大学 Juris Doctor 2018 级（在读) ，莫纳什大学 Master of Laws 2017i 级毕业，华东政法大学知识产权学院 2014 届本科毕业生
肖安琪，莫纳什大学 Juris Doctor 2019 级（在读），墨尔本大学商学院 2018 届本科毕业生
王阳，莫纳什大学 Juris Doctor 2019 级（在读），南开大学汉语言文化学院 2017 届毕业生
张露馨，莫纳什大学 Juris Doctor 2018 级(在读) ，华东师范大学法学院 2015 届本科毕业生
陈宁婧，莫纳什大学 Juris Doctor 2018 级(在读)，莫纳什大学 Master of Business Law 2017 级毕业生，四川外语学院商法学院 2015 届本科毕业生
王璐祎，莫纳什大学 Juris Doctor 2018 级(在读)，莫纳什大学 Master of Business Law 2017 级毕业生, 西北政法大学经济法学院 2015 届本科毕业生
刁昌玮，莫纳什大学 Juris Doctor 2019 级（在读），莫纳什大学教育学院一等 荣誉学士，人文学院 2018 届毕业生
西澳大利亚州 西澳大学：
严桂玲，西澳大学 Juris Doctor 2019 级，Curtin University 2018 届国际贸 易本科毕业生
张田，西澳大学 Juirs Doctor 2019 级，南昌大学法学硕士毕业生，西北政法 大学法学本科学士毕业生
CALD Meeting Paper Page 276 CALD Meeting - 4 Oct 2019 ATTACHMENT 3 - Ms Brooke HartiganItem E03(9)
CALD Meeting Paper Page 277 CALD Meeting - 4 Oct 2019 ATTACHMENT 4 - Ms Brooke HartiganItem E03(9)
教育部留学服务中心 国外学历学位认证书
XXX，男，中国国籍，XXXX 年出生于 XXX 省。 XXXX 年起就读于澳大利亚墨尔本大学（The University of Sydney）学习职业 法律博士学位课程，成绩合格，于 XXX 年 XX 月获得该校授予的职业法律博士 （Juris Doctor）学位。 在澳大利亚，正规大学的法学院一般设有法律博士学位课程，具有学士学位 的学生可以直接申请，学制一般为三年，毕业后获得法律博士学位。获得该学位 的人员通过法律实践培训课程（Graduate Diploma of Legal Practice）后，可以向各 州律师申请从业执照。 经核查，悉尼大学系澳大利亚正规高等学校，该校设有职业法律博士课程。 在澳大利亚学历框架体系中，职业法律博士学位证书与硕士学位同属于一个层次。 XXX 所获职业法律博士学位证书表面其具有相应的学历
教育部留学服务中心 XXXX 年 X 月 X 日
注： 1. 本认证书系根据《国（境）外学历学位认证评估办法》出局。 2. 本认证书中的个人信息系从申请中提供的个人有效身份证件中提取。 3. 由于各国（地区）教育制度的差异，认证书上对申请者专业领域的表述有可能与我 国《学位授予和人才培养学科目录》及《普通高等学校本科专业目录》存在差异。
CALD Meeting Paper Page 278 CALD Meeting - 4 Oct 2019 Item F01
F01: International Bar Association: Bullying and harassment in the legal profession Professor Lesley Hitchens, Chair of CALD 1 October 2019
The attached correspondence relates to a Skype conversation I had with Kieran Pender, who is a senior legal advisor with the International Bar Association. He was introduced to me via email by Brian Horrigan. I wasn’t able to meet him personally when he was in Australia. I believe other deans may have met him when he was here. You will see from the first email and attachment that the IBA have been doing work in the bullying and sexual harassment in the Legal Profession. The IBA is keen to engage with Law Schools to consider ways that law students may be able to build awareness and help law students prepare for their workplace environments. Following our Skype meeting, Kieran has sent me a further email and a copy of a presentation that I believe he may have given when he was in Australia.
Is this something that CALD would like to explore further? Would it be a useful topic for a CALD meeting discussion? As you will see from his email, I also mentioned the 2020 ALAA conference – and although I couldn’t commit ALAA, suggested that that could be another possibility, especially for a more extended consideration. Possibly a joint CALD/ALAA event?
D:\AAA ‐ CALD files from 1 Jul 2019\CALD Meetings\2019‐10‐04 ‐ CALD Meeting Papers\Drafts & Word versions\F01 ‐ International Bar Assoc coversheet.docx Page 1 CALD Meeting Paper Page 279 CALD Meeting - 4 Oct 2019 Item F01(1)
Vi Kacevska
To: Lesley Hitchens Subject: RE: CALD Introduction for Kieran Pender, IBA
From: Kieran Pender
Hi Lesley,
Many thanks to Bryan for the introduction, and for hosting me yesterday at Monash.
I attach for reference the recent International Bar Association (IBA) report Us Too? Bullying and Sexual Harassment in the Legal Profession.
Lesley ‐ I would be delighted to meet while I am in Sydney next Wednesday or Thursday. It would be fantastic to discuss A) the possible role of law schools in addressing the prevalence of bullying and sexual harassment in the profession and preparing students for the environments they will, unfortunately, face in legal workplaces, and B) potential collaboration between the IBA and CALD to those ends.
Would you be available to meet at 2pm or 3pm on Wednesday 21, or 1.30pm or 4.30pm on Thursday 22?
Many thanks.
Kind regards, Kieran
Kieran Pender Senior Legal Advisor, Legal Policy & Research Unit International Bar Association
From: Bryan Horrigan
Dear Lesley and Kieran ‐ I am writing to introduce you to each other.
Kieran, as you know, Lesley is the head of the Council of Australian Law Deans (CALD), whose members are all Australian law schools in the university sector.
Lesley, Kiernan is keen to make contact and engage with CALD on the following matter, and will be in Sydney soon. As you might already be aware, he has led the IBA's ground‐breaking global report on bullying and sexual harassment in the legal profession. He presented yesterday to us. You'll be aware of his work and the traction it is getting with law societies, bar associations, and others in Australia. I am awae from his presentation that there is follow‐up work by the IBA and the Australian legal profession's own initiatives in engaging with law students who have such experiences in professional legal workplaces, particularly law firms.
I'll leave it to Kieran to follow up with you, Lesley.
Kind regards
1
CALD Meeting Paper Page 280 CALD Meeting - 4 Oct 2019 Item F01(1) Us Too? Bullying and Sexual Harassment in the Legal Profession
Kieran Pender Legal Policy & Research Unit International Bar Association
CALD Meeting Paper Page 281 CALD Meeting - 4 Oct 2019 Item F01(1)
The International Bar Association (IBA), established in 1947, is the world’s leading international organisation of legal practitioners, bar associations, law societies, law firms and in-house legal teams. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 80,000 lawyers, 190 bar associations and law societies and 200 group member law firms, spanning over 170 countries. The IBA is headquartered in London, with offices in São Paulo, Seoul, The Hague and Washington, DC.
The IBA Legal Policy & Research Unit (LPRU) undertakes research and develops initiatives that are relevant to the rule of law, the legal profession and the broader global community. The LPRU engages with legal professionals, law firms, law societies and bar associations, governments, non-governmental organisations and international institutions to ensure innovative, collaborative and effective outcomes.
This report considers sensitive issues, which may cause distress among some readers. Readers are encouraged to seek appropriate support. In many countries, free telephone and online counselling services are available.
© 2019
International Bar Association Level 4, 10 St Bride Street London EC4A 4AD United Kingdom [email protected] www.ibanet.org
All reasonable efforts have been made to verify the accuracy of the information contained in this report. The International Bar Association accepts no responsibility for reliance on its content. This report does not constitute legal advice. Material contained in this report may be quoted or reprinted, provided credit is given to the International Bar Association.
CALD Meeting Paper Page 282 CALD Meeting - 4 Oct 2019 Item F01(1) Contents
Foreword 5 Letter from the IBA President 7 Executive Summary 11 Introduction 12 Methodology 21 Demographics 25 Bullying 32 Sexual Harassment 49 Policies and Training 68 Case Studies 86 Australia 86 Brazil 88 Costa Rica 89 Malaysia 91 Russia 92 South Africa 93 Sweden 94 United Kingdom 96 United States 97 Recommendations 99 Conclusion 112 Working Group 113 Acknowledgments 114 Appendix 1: Survey 115 Appendix 2: Regulatory Approaches Compared 123
CALD Meeting Paper Page 283 CALD Meeting - 4 Oct 2019 Item F01(1)
CALD Meeting Paper Page 284 CALD Meeting - 4 Oct 2019 Item F01(1) Foreword
In the lead up to International Women’s Day this year, research company IPSOS Mori, in collaboration with the Global Institute for Women’s Leadership at King’s College London, released the results of a ground-breaking survey on global attitudes towards gender.
People in 27 countries around the world were asked to nominate the top two or three issues facing women and girls in their nation. The most cited problem was sexual harassment, with sexual violence coming second and physical violence third. The fifth most cited was domestic abuse. Seventeen nations nominated one of these issues, which all go to different aspects of women being safe and having their sexual autonomy respected, as the most pressing problem.
It is hard to read this data as anything other than a global cry for change, for a world in which women and girls do not fear rape, beatings or predatory conduct at work. As the #MeToo movement has shown, women are no longer prepared to be silent. The demands for deep-seated reform are insistent and determined. After all this activity, the world cannot lapse back into shameful silence.
The legal profession has a special, indeed privileged role, in advocating for and ushering in change. Around the world, it will be lawyers who are at the forefront of cases that test the efficacy of current laws. When existing systems are found wanting, legal skills will be needed to better legislation and improve courtroom procedures.
However, the legal profession can only step up to this role with integrity if it makes sure its own house is in order. This is challenging in a hierarchical profession where the most senior practitioners still tend to be disproportionately men and advancement is often as much about networks as measurable merit. But it can and must be done.
I do not underestimate the size of the challenge, but you are not alone. Around the world, women and men of goodwill are coming together – in this profession and others – to find the best ways forward. At the Global Institute for Women’s Leadership, we are determined to bring to the table the best evidence about what works for gender equality in the legal profession, business, the news media, technology and civil society.
This important report is a clarion call for urgent action. I urge you to absorb its facts and findings and then make a difference.
Julia Gillard AC
27th Prime Minister of Australia Chair, Global Institute for Women’s Leadership, King’s College London
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 5
CALD Meeting Paper Page 285 CALD Meeting - 4 Oct 2019 Item F01(1)
6 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 286 CALD Meeting - 4 Oct 2019 Item F01(1) Letter from the IBA President
Since there has been a legal profession, there have been requirements that its practitioners be of good character. Aristotle, speaking of the Athenian orators that laid the early foundation for the modern practice of law, identified the need for ‘good moral character’. In the fifth century, the Roman Theodosian Code demanded that advocates be of ‘suitable character’, with ‘praiseworthy’ past careers. A 1605 British statute required lawyers to be ‘skilful’ and ‘honest’. The importance of prospective lawyers demonstrating more than just technical competence manifests today in character obligations as a prerequisite for admission to legal practice in most jurisdictions globally.
These ancient values are at odds with what has long been suspected: that bullying and sexual harassment are widespread in legal workplaces. Some of us have experienced it ourselves. Many of us have witnessed it. Others have heard about it from colleagues. However, the plural of anecdote is not data. For the first time at a global level, this research provides quantitative confirmation that bullying and sexual harassment are endemic in the legal profession. It joins a number of diverse country- specific studies, from Ireland to New Zealand to South Korea, in forcing the profession to confront these insidious issues.
We must confront them. There are significant ethical and legal factors that should compel action. This research also highlights an important business case. Lawyers who are bullied or harassed are unlikely to perform at their best; this survey indicates that they leave their workplaces and, in some cases, the profession altogether. Following the global #MeToo movement, the legal profession has regularly been called upon to advise other sectors on these issues. Our ability to advise effectively and drive broader societal change is undermined if we do not address the risk of hypocrisy.
Legal professionals have long held an exalted status, as defenders of freedom, liberty and all else that flows from those fundamental values. ‘From a profession charged with such responsibilities,’ great Austrian-American jurist Felix Frankfurter once wrote, ‘there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as “moral character”.’
I implore the legal profession to heed this report’s recommendations. If the law is to remain in proper standing with the global community, its practitioners must be of good character. Addressing the widespread bullying and sexual harassment among us is an important step in safeguarding the long-term vitality of this essential profession.
Horacio Bernardes Neto President, International Bar Association
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 7
CALD Meeting Paper Page 287 CALD Meeting - 4 Oct 2019 Item F01(1) Statistics: the largest-ever survey on bullying and sexual harassment in the legal profession
Conducted in from 6,980 6 languages: 135 respondents English, French, Italian, countries Portuguese, Russian, Spanish
Respondents were:
67% female 32% male 0.2% non-binary/self-defined From across the spectrum of the legal profession: law firms, in-house, barristers’ chambers, judiciary, government.
Sexual harassment is Bullying is rife in legal also common, with: workplaces, affecting: 1 in 3 female respondents and 1 in 2 female respondents and 1 in 14 male respondents having been sexually harassed in a work context. 1 in 3 male respondents.
More needs to be done. Of respondents’ workplaces, 53% had policies and 22% undertook training to address bullying and sexual harassment.
Targets do not report. In: Targets don’t report due to: 57% of bullying cases and the status of the perpetrator, 75% of sexual harassment cases, fear of repercussions and the incident the incident is never reported. being endemic to the workplace.
8 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 288 CALD Meeting - 4 Oct 2019 Item F01(1) Policies and training do not appear to be having the desired impact. Respondents at workplaces with policies and training are just as likely to be bullied or sexually harassed as those at workplaces without.
Targets are leaving unsupportive workplaces. 65% of respondents who have been bullied and 37% of respondents who have been sexually harassed left or are considering leaving their workplaces.
Bullying and sexual harassment by country*
Bullying
52-74
45-51
37-44
29-36
15-28
insufficient data
% of respondents bullied
Sexual harassment
24-35
21-23
18-20
13-17
8-12
insufficient data
% of respondents sexually harassed
*Gender-weighted
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 9
CALD Meeting Paper Page 289 CALD Meeting - 4 Oct 2019 Item F01(1) Recommendations
1. Raise awareness The legal profession has a problem. Spread the word – it is the first step towards achieving change.
2. Revise and implement policies and standards Policies to address bullying and sexual harassment are under-utilised and not sufficiently effective. We need more effective policies and better implementation.
3. Introduce regular, customised training Effective training can reduce the prevalence of workplace bullying and sexual harassment. Training must be the norm, not the exception.
4. Increase dialogue and best-practice sharing A problem shared is a problem halved. Let’s work together to address the scourge of bullying and sexual harassment in the profession, sharing what works and what doesn’t.
5. Take ownership This is everyone’s problem. From senior leaders of the profession to incoming graduates, we all need to take ownership of the problem and work towards a more harmonious legal profession.
6. Gather data and improve transparency Data about the nature, prevalence and impact of bullying and sexual harassment is important – we don’t have enough. Once we have the data, we need to be open about it. Transparency will help us to address these issues.
7. Explore flexible reporting models Legal professionals do not report bullying or sexual harassment often enough, at the time it happens or at all. We need to improve existing reporting channels and explore new ones, to make reporting a better experience for targets.
8. Engage with younger members of the profession Younger legal professionals are disproportionately impacted by bullying and sexual harassment. They must be part of this conversation – they will play a major role in developing and implementing solutions and shaping workplace culture.
9. Appreciate the wider context Bullying and sexual harassment do not occur in a vacuum. Mental health challenges, a lack of workplace satisfaction and insufficient diversity are all related issues. These dynamics need to be understood and addressed collectively.
10. Maintain momentum Change is not inevitable. But it is possible, if individuals, workplaces and institutions work together to eradicate bullying and sexual harassment from the profession.
10 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 290 CALD Meeting - 4 Oct 2019 Item F01(1) Executive Summary
The legal profession has a problem. In 2018, the International Bar Association (IBA) and market research company Acritas conducted the largest-ever global survey on bullying and sexual harassment in the profession. Nearly 7,000 individuals from 135 countries responded to the survey, from across the spectrum of legal workplaces: law firms, in-house, barristers’ chambers, government and the judiciary. The results provide empirical confirmation that bullying and sexual harassment are rife in the legal profession. Approximately one in two female respondents and one in three male respondents had been bullied in connection with their employment. One in three female respondents had been sexually harassed in a workplace context, as had one in 14 male respondents. This report provides a succinct analysis of that data, to raise awareness about the nature, extent and impact of the problem and inform the development of solutions.
This report finds that these issues are ongoing, with a considerable proportion of cases occurring within the past 12 months. It identifies chronic underreporting of incidents, with 57% of bullying cases and 75% of sexual harassment cases not reported, for reasons including the profile of the perpetrator and the target’s fear of repercussions. Even when targets report such incidents, workplaces are failing them – official responses are considered insufficient or negligible, perpetrators are rarely sanctioned and, in many cases, the situation is exacerbated. Bullying and sexual harassment hurt the profession. According to the survey data, targets often want to move workplaces, and some even wish to leave the sector entirely. Legal workplaces are not doing enough. This report finds that policies – while present in more than half of workplaces – are not having the desired effect. Although training does have some positive impact, only one in five legal workplaces are educating their staff to prevent and properly respond to bullying and sexual harassment.
Change is needed. This report provides ten recommendations to assist legal workplaces and the profession as a whole in addressing these issues. The recommendations are underpinned by the empirical findings of this survey, extensive secondary research and consultation with stakeholders. Change will not occur overnight, particularly as these issues are not unique to the legal profession but reflective of wider societal challenges. Yet there are compelling moral, ethical and commercial imperatives for the profession to act urgently. Individually and together, legal professionals and the legal profession must eliminate bullying and sexual harassment from our workplaces. It is hoped that this report can make a modest contribution towards genuine change.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 11
CALD Meeting Paper Page 291 CALD Meeting - 4 Oct 2019 Item F01(1) Introduction
In 1983, lawyers at the Atlanta office of a major United States law firm decided they wanted to hold a ‘wet T-shirt’ competition for female summer interns. In the face of resistance from colleagues, the organisers instead held a ‘swimsuit’ competition. Several participants told The Wall Street Journal ‘that they felt humiliated and that they didn’t protest only because they were candidates for year- round jobs with the firm’. A student from Harvard Law School ‘won’ the competition, and was subsequently offered a job at the prestigious firm. ‘She has the body we’d like to see more of’, one partner quipped. Some lawyers defended the incident as an example of the ‘rollicking good fun’ characteristic of the firm’s social events. Other observers called it out for what it was: unacceptable.1
Six years later, a survey of female lawyers from 250 US law firms found that 60% had been sexually harassed.2 In 1992, the American Bar Association adopted Recommendation 117, recognising sexual harassment as a ‘serious problem’ in legal workplaces. In 1994, a San Francisco jury awarded a legal secretary US$7.1m (£5.5m at the time – more than £10m in real terms) after she was groped by her supervisor, a senior partner with a major international firm. Although damages were halved on appeal, it was thought that the judgment would act as a ‘wake-up call’ for the profession.3 These incidents were by no means isolated to the US. Emerging research in Australia, Canada, the United Kingdom and elsewhere in the 1990s began to reveal sexual harassment and other unacceptable behaviour in legal workplaces.4 In one particular incident in London, a junior female lawyer was told to accompany a client to a strip club.5
Thirty-six years after the swimsuit competition generated concern, it appears that only limited progress has been made to eliminate sexual harassment, bullying and other unprofessional behaviour from the legal profession. While the nature of such conduct may have changed, it remains pervasive in workplaces. In 2017, the IBA undertook a survey of almost 6,000 legal professionals globally for its Women in Commercial Legal Practice report. This was undertaken to understand why, despite the achievement of entry-level gender-parity in many jurisdictions, women remain significantly underrepresented at senior levels in the profession. By June 2017, the results were available. Almost one in three female respondents reported being sexually harassed in their current workplace, while one in two female respondents and one in three male
1 James Stewart, ‘Are Women Lawyers Discriminated Against at Large Law Firms?’ Wall Street Journal (New York, 20 December 1983) 1; Nina Burleigh and Stephanie B Goldberg, ‘Breaking the Silence: Sexual Harassment in Law Firms’ (1989) 75 American Bar Association Journal 46. 2 Emily Couric, ‘Women in the Large Firms: A High Price of Admission?’ National Law Journal (Washington, DC, 11 December 1989) S2. 3 Jane Gross, ‘When the Biggest Firm Faces Sexual Harassment Suit’ The New York Times (New York, 29 July 1994) B7. 4 See, eg, Joan Brockman, ‘The Use of Self-Regulation to Curb Discrimination and Sexual Harassment in the Legal Profession’ (1997) 35 Osgoode Hall Law Journal 209; Terese Ching and Brian Kleiner, ‘Discrimination and Harassment in Law Firms’ (2001) 20 Equal Opportunities International 106; Hilary Sommerlad, ‘Women Solicitors in a Fractured Profession: Intersections of Gender and Professionalism in England and Wales’ (2002) 9 International Journal of the Legal Profession 213; Australian Law Reform Commission, Equality Before the Law: Women’s Equality (Report 69 Part 2, 1994); Patricia Easteal, Less Than Equal: Women and the Australian Legal System (Butterworths, 2001) ch 11. 5 Robert Verkaik, ‘Law: “You Have to Fit in With the Laddish Mentality, or Lose Out”’, The Independent (London, 18 February 1998).
12 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 292 CALD Meeting - 4 Oct 2019 Item F01(1) respondents had been bullied. When the subsequent report was two months from publication, the Harvey Weinstein scandal broke.6 As the #MeToo movement erupted globally, the legal profession was not immune.
In the following year and a half, some of the world’s biggest law firms were rocked by the departures of senior partners following sexual harassment allegations. In the UK, the number of reports of sexual harassment to the Solicitors Regulation Authority rose considerably in 2017–18,7 while calls regarding bullying and sexual harassment to mental health hotline LawCare almost doubled.8 In a case currently before Britain’s employment tribunal, a junior solicitor alleged she was forced to attend a sex show with a partner – and had her employment terminated after rebuffing his advances.9 In New Zealand, law students took to the streets to protest against rampant sexual harassment following an incident at one prominent firm.10 In South Korea, allegations of sexual harassment saw a senior prosecutor jailed and kick-started the country’s ‘own #MeToo movement’.11 In India, a Bombay High Court judge criticised ‘the archetypal, nauseating patriarchy of our legal profession’. Although sexual harassment within the profession ‘is not discussed’, Judge Gautam Patel said, ‘it happens everywhere’.12
No part of the legal profession has been unaffected by these issues. No less a legal luminary than US Chief Justice John Roberts warned that ‘the judicial branch is not immune’.13 Indeed, in 2017, an Israeli judge was convicted of sexual harassment offences, having ‘cynically exploited his senior position against a young employee’.14 In Pakistan, the Chief Justice was criticised in 2018 for sexist public comments.15 Past research also indicated that, in those jurisdictions with a bifurcated bar,
6 Jodi Kantor and Megan Twohey, ‘Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades’, The New York Times (New York, 5 October 2017) www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html accessed 5 April 2019. 7 Suzi Ring and Aine Quinn, ‘Sex Misconduct Claims Among UK Lawyers Hit Record After #MeToo’, Bloomberg (New York, 14 June 2018) www.bloomberg.com/news/articles/2018-06-14/sex-misconduct-claims-among-u-k-lawyers-hit- record-after-metoo accessed 5 April 2019. 8 Richard Simmons, ‘Harassment-Related Calls to LawCare Surge in Wake of #MeToo Revelations’, The Lawyer (London, 22 January 2019) www.thelawyer.com/lawcare-stats-2019-harassment-metoo accessed 5 April 2019. 9 The partner has denied the incident. Zoie O’Brien, ‘Married Millionaire, 49, “Constantly Groped” Solicitor, 27, Took Her to an Amsterdam Sex Show and Secretly Filmed Her on a Work Trip to Dubai Before Firing Her Two Hours After She Rebuffed His Sexual Advances, Tribunal Hears’, Daily Mail (London, 25 February 2019) www.dailymail.co.uk/ news/article-6742773/Married-millionaire-49-groped-solicitor-27-took-sex-secretly-filmed-her.html accessed 5 April 2019. 10 Frances Cook, ‘Law Students March for End to Sexual Harassment’, New Zealand Herald, (Auckland, 15 March 2018) www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12012775 accessed 5 April 2019. 11 Suyin Haynes and Aria Hangyu Chen, ‘How #MeToo Is Taking on a Life of Its Own in Asia’, Time (New York, 9 October 2018) http://time.com/longform/me-too-asia-china-south-korea accessed 5 April 2019; Choe Sang-Hun, ‘Ex-Prosecutor in South Korea #MeToo Case Is Sentenced to 2 Years in Prison’, The New York Times (New York, 23 January 2019) www. nytimes.com/2019/01/23/world/asia/south-korea-prosecutor-sexual-misconduct.html accessed 5 April 2019. 12 ‘Judiciary Too Plagued By Rampant Sexism: Bombay HC Judge’, The Times of India (Mumbai, 12 October 2018) https://timesofindia.indiatimes.com/india/judiciary-too-plagued-by-rampant-sexism-bombay-hc-judge/ articleshow/66189124.cms accessed 5 April 2019. 13 David Cohen, ‘Roberts: Judicial Branch “Not Immune” From Sexual Harassment Issues’, Politico (Arlington, 31 December 2017) www.politico.com/story/2017/12/31/roberts-judiciary-sexual-harassment-319826 accessed 5 April 2019. 14 Sharon Pulwer, ‘Former President of Nazareth District Court Convicted of Sexual Harassment’, Haaretz (Tel Aviv, 8 May 2017) www.haaretz.com/israel-news/premium-former-israeli-judge-convicted-of-sex-harassment-1.5469806 accessed 5 April 2019. 15 ‘Pakistan’s Chief Justice Saqib Nisar Faces Women’s Ire On “Skirt” Analogy’, Financial Express (Noida, 24 January 2018) www.financialexpress.com/world-news/pakistans-chief-justice-saqib-nisar-faces-womens-ire-on-skirt-analogy/1027623 accessed 5 April 2019.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 13
CALD Meeting Paper Page 293 CALD Meeting - 4 Oct 2019 Item F01(1) many barristers suffer from bullying and sexual harassment within chambers and in courtrooms.16 In a lecture in late 2018, British barrister Jo Delahunty QC admitted that ‘what I had previously thought were problems of the past, are very much problems of our present … We have a duty to change the culture that permits harassment at the Bar’.17
In some ways, it is not surprising that bullying and sexual harassment are widespread in the profession. Researchers have identified characteristics that increase the likelihood of negative workplace behaviours – these include ‘where leadership is male-dominated… where the power structure is hierarchical, where lower-level employees are largely dependent on superiors for advancement, and where power is highly concentrated in a single person’.18 These factors describe many, if not most legal workplaces. It may also be that cultural and structural features of the profession, including the pressure of billable hours and the adversarial nature of much legal work, exacerbate the risk of bullying and sexual harassment. Scholar Margaret Thornton has suggested that the ‘hypercompetitiveness’ brought about by the globalisation of the legal market ‘has resulted in increased levels of incivility’.19 Several bar associations and law societies have conducted jurisdiction-specific research that has demonstrated the prevalence of bullying and sexual harassment in their domestic legal sector.20 In New Zealand, for example, a 2018 survey found that 52% of lawyers had been bullied and 18% of lawyers had been sexually harassed at some point in their working life.21 A 2017 report prepared by the Bar Council of England and Wales found that 21% of employed and 12% of self-employed respondent barristers had been bullied or harassed at work in the two years prior to the survey.22
However, the scale of the problem on a global level remains unclear. Therefore, in early 2018, the IBA set out to undertake the largest-ever international survey on bullying and sexual harassment in the legal profession. It was hoped that the worldwide span of this survey would provide unparalleled insight into the nature, prevalence and impact of these phenomena. The anonymous survey sought to gather a range of quantitative and qualitative data to provide a comprehensive picture of bullying
16 See, eg, Owen Bowcott, ‘Harassment Rife in Chambers and Courts, Barristers’ Group Says’, The Guardian (London, 24 May 2018) www.theguardian.com/law/2018/may/24/harassment-rife-chambers-courts-behind-gown-barristers- group-fight-abuse-power accessed 5 April 2019; Freya Michie, ‘Almost Two Thirds of Victoria’s Barristers Say They’re Bullied in the Courtroom’, ABC (Sydney, 18 October 2018) www.abc.net.au/news/2018-10-18/barristers-complain-of- bullying-judges-and-magistrates/10393470 accessed 5 April 2019. 17 Jo Delahunty QC, ‘Sexual Harassment at the Bar’ (Speech delivered at Gresham College, London, 29 November 2018). 18 Nancy Gertner, ‘Sexual Harassment and the Bench’ (2018) 71 Stanford Law Review 88, 94. See also Kimberly Schneider, John Pryor and Louise Fitzgerald, ‘Sexual Harassment Research in the United States’ in Ståle Einarsen and others (eds), Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice (2nd edn, CRC Press 2011) 245, 250–252; Skye Saunders and Patricia Easteal, ‘The Nature, Pervasiveness and Manifestations of Sexual Harassment in Rural Australia: Does “Masculinity’ of Workplace Make a Difference?” (2013) 40 Women’s Studies International Forum 121, 121; Maryam Omari and Megan Paull, ‘“Shut Up and Bill”: Workplace Bullying Challenges for the Legal Profession’ (2014) 20 International Journal of the Legal Profession 141, 142. 19 Margaret Thornton, ‘Squeezing the Life Out of Lawyers: Legal Practice in the Market Embrace’ (2016) 25 Griffith Law Review 471, 471. See also Suzanne Le Mire and Rosemary Owens, ‘A Propitious Moment? Workplace Bullying and Regulation of the Legal Profession’ (2014) 37 University of New South Wales Law Journal 1030. 20 See, eg, the Victorian Bar, ‘Quality of Working Life Survey: Final Report and Analysis’ (October 2018) 16; Colmar Brunton, ‘New Zealand Law Society: Workplace Environment Survey’ (May 2018); Bar Council, ‘Barristers’ Working Lives 2017: Barristers’ Experience of Harassment, Bullying & Discrimination’ (2018); Law Council of Australia, ‘National Attrition and Re-engagement Study’ (NARS) Report’ (2014); Lauren Stiller Rikleen, ‘Survey of Workplace Conduct and Behaviors in Law Firms’ (Women’s Bar Association of Massachusetts, 2018). 21 See Colmar Brunton (n 20) 16, 33. 22 See Bar Council (n 20) 8.
14 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 294 CALD Meeting - 4 Oct 2019 Item F01(1) and sexual harassment in legal workplaces. While much contemporary debate has focused on private practice, the survey was designed to include in-house lawyers, advocates, government legal professionals and the judiciary. It is intended that the resulting data will be one small but formative step on the road towards meaningful change.
Sexual harassment
The prevalence of workplace sexual harassment began to be publicly recognised in the 1970s.23 Sexual harassment is typically defined as involving unwanted sex-related behaviour. While there is ‘no universal definition’, most legal and sociological approaches have similar elements, ‘such as descriptions of the conduct as unwanted or unwelcome, and which has the purpose or effect of being intimidating, hostile, degrading, humiliating or offensive’.24 To take one indicative example, from the Supreme Court of Canada: ‘Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences… By requiring an employee, male or female, to contend with unwelcome sexual actions… sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being’.25 While it takes many forms, sexual harassment is predominantly ‘a question of power and not sex.’26 Today, the prevention of sexual harassment is a prominent international issue, and in a majority of jurisdictions globally, the conduct is legislatively prohibited. In the past decade alone, 35 countries introduced relevant laws.27
Sexual harassment has profound effects. This conduct has direct professional, psychological and financial implications for individual targets.28 It has been linked to reduced job satisfaction, commitment and productivity, as well as absenteeism, deteriorating relationships with colleagues and withdrawal from the workplace.29 Sexual harassment can also cause depression, anxiety and other health issues.30 At an organisational level, the consequences of sexual harassment include higher employee turnover, increased recruitment, training and development costs and possible litigation.31
23 Paula McDonald, ‘Workplace Sexual Harassment 30 Years on: A Review of the Literature’ (2011) 14 International Journal of Management Reviews 1, 2; Catharine MacKinnon, ‘Directions in Sexual Harassment Law’ (2007) 31 Nova Law Review 225, 226–227. 24 See McDonald (n 23) 2. 25 Janzen v Platy Enterprises Ltd (1989) 1 SCR 1252, 1253. 26 Law Council of Australia, ‘National Inquiry into Sexual Harassment in Australian Workplaces’ (Submission to Australian Human Rights Commission) 26 February 2019, 26. 27 World Bank Group, ‘Women, Business and the Law 2019: A Decade of Reform’ (2019). Note, however, that 68 countries still do not provide workplace-specific legislative prohibitions on sexual harassment: World Policy Analysis Center, ‘Preventing Gender-Based Workplace Discrimination and Sexual Harassment: New Data on 193 Countries’ (2017) 3. 28 See McDonald (n 23) 4. See also Jennifer Freyd, ‘When Sexual Assault Victims Speak Out, Their Institutions Often Betray Them’, The Conversation (London, 11 January 2018) https://theconversation.com/when-sexual-assault-victims- speak-out-their-institutions-often-betray-them-87050 accessed 5 April 2019. 29 See McDonald (n 23) 4; Heather McLaughlin, Christopher Uggen and Amy Blackstone, ‘The Economic and Career Effects of Sexual Harassment on Working Women’ (2017) 31 Gender & Society 333, 335. 30 See Chelsea Willness, Piers Steel and Kibeom Lee, ‘A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment’ (2007) 60 Personnel Psychology 127, 138–139; Morten Birkeland Nielsen and Ståle Einarsen, ‘Prospective Relationships Between Workplace Sexual Harassment and Psychological Distress’ (2012) 62 Occupational Medicine 226, 226–228. 31 See McDonald (n 23) 4.
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CALD Meeting Paper Page 295 CALD Meeting - 4 Oct 2019 Item F01(1) In 2015, sexual harassment complaints filed in the US Equal Employment Opportunity Commission were estimated to have cost organisations US$46m (£35m).32 Another study estimated that for each employee who experienced sexual harassment, the associated productivity loss costs their employer on average US$22,500 (£17,000).33 Alongside these direct costs, failure to take action to address a culture of sexual harassment can harm an organisation’s reputation.34
Bullying
Workplace bullying is typically understood as exposure to aggressive behaviour or incivility by supervisors, colleagues or third parties.35 Like sexual harassment, cultural and legal recognition of workplace bullying is a relatively recent phenomenon. The first research into workplace bullying, referred to as ‘mobbing’, took place in Norway in 1973.36 Today, regulatory responses to bullying and perceptions of acceptable office behaviour vary widely across jurisdictions.37 In Australia, for example, if ‘an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work’ and that behaviour ‘creates a risk to health and safety’, employees are empowered to seek ‘stop bullying’ orders from a workplace tribunal.38 However, in many jurisdictions, there are no standalone legal prohibitions against bullying. Cultural differences occur not only at a societal level but also between organisations and workplace culture has been shown to impact rates of bullying.39 Factors including low job autonomy, high workload and role ambiguity are associated with higher rates of bullying.40 Conversely, ‘constructive leadership, perceived organisational support and organisational anti-bullying policies’ can mitigate the effects of workplace bullying and reduce its prevalence.41
32 See McLaughlin, Uggen and Blackstone (n 29) 335. 33 See Willness, Steel and Lee (n 30) 127–162. 34 See McLaughlin, Uggen and Blackstone (n 29) 335; Serena Does, Seval Gundemir and Margaret Shih, ‘Research: How Sexual Harassment Affects a Company’s Public Image’, Harvard Business Review (Brighton, 11 June 2018), https://hbr. org/2018/06/research-how-sexual-harassment-affects-a-companys-public-image accessed 5 April 2019. 35 Helge Hoel and Maarit Vartia, ‘Bullying and Sexual Harassment at the Workplace, in Public Spaces, and in Political Life in the EU’ (European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Women’s Rights and Gender Equality (FEMM), March 2018) 12. 36 Chantal Gautier, ‘Are You a Bully? Here’s How to Tell’, The Conversation (London, 1 November 2018) https:// theconversation.com/are-you-a-bully-heres-how-to-tell-105874 accessed 5 April 2019. 37 See, eg, Katherine Lippel, ‘The Law of Workplace Bullying: An International Overview’ (2010) 32 Comparative Labor Law & Policy Journal 1–14; Jacqueline Power and others, ‘Acceptability of Workplace Bullying: A Comparative Study on Six Continents’ (2013) 66 Journal of Business Research 374, 374–379. 38 Fair Work Act 2009 (Australia) s 789FD(1). The effectiveness of this mechanism has been questioned by Allison Ballard and Patricia Easteal, ‘The Secret Silent Spaces of Workplace Violence: Focus on Bullying (and Harassment)’ (2018) 7(35) Laws 1, 7. 39 Irena Pilch and Elżbieta Turska, ‘Relationships Between Machiavellianism, Organizational Culture, and Workplace Bullying: Emotional Abuse from the Target’s and the Perpetrator’s Perspective’ (2015) 128 Journal of Business Ethics 83, 85. See also Nathan Bowling and Terry Beehr, ‘Workplace Harassment from the Victim’s Perspective: A Theoretical Model and Meta-Analysis’ (2006) 91 Journal of Applied Psychology 998, 999; Stig Berge Matthiesen and Ståle Einarsen, ‘MMPI-2 Configurations Among Victims of Bullying at Work’ (2001) 10 European Journal of Work and Organizational Psychology 467, 469; Mogens Agervold, ‘The Significance of Organizational Factors for the Incidence of Bullying’ (2009) 50 Scandinavian Journal of Psychology 267, 274 40 M Sandy Hershcovis, Tara C Reich and Karen Niven, ‘Workplace Bullying: Causes, Consequences, and Intervention Strategies’ (Society for Industrial and Organizational Psychology White Paper Series, 2015) 8. 41 Vivien Kemp, ‘Antecedents, Consequences and Interventions for Workplace Bullying’ (2014) 27 Current Opinion in Psychiatry 364, 366, citing Helena Cooper-Thomas and others, ‘Neutralizing Workplace Bullying: The Buffering Effects of Contextual Factors’ (2013) 28 Journal of Managerial Psychology 384, 384–407.
16 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 296 CALD Meeting - 4 Oct 2019 Item F01(1) Workplace bullying has substantial detrimental effects for targets, their colleagues and the workplace generally. For the target, bullying can have severe health implications and is associated with increased psychological stress, depression, anxiety and burnout.42 It has also been linked to a higher risk of cardiovascular health problems and sleep issues.43 At an organisational level, bullying contributes to workplace dysfunction.44 Research has shown that bullying affects productivity and profitability.45 In 2015, the Advisory, Conciliation and Arbitration Service estimated that workplace bullying costs Britain’s economy £18bn each year.46
Distinct but related
The distinction between bullying and sexual harassment is not always clear.47 The terms are often used interchangeably, especially when ‘sexual’ is omitted and the label ‘harassment’ is used more broadly. This carries risks: given the differences between bullying and sexual harassment, merged efforts to address them may prove ineffective. Feminist scholars have argued ‘it is vital not to conflate types of harassment in a way which obscures distinctive dynamics’.48 While this report has grouped the two forms of conduct for both conceptual and practical reasons (as have other significant pieces of research in the area),49 it proceeds aware of their differences and the risk of conflation. It should also be noted that the concept of sexual harassment is not confined to overtly sexualised behaviour and includes sex-based harassment (such as sexist comments).50
This report is conscious that gender and other individual characteristics – including race, age, sexual preference and physical ability – influence experiences of bullying and sexual harassment. Women are disproportionately affected by both bullying and sexual harassment.51 However, these are not ‘women’s issues’. One in three male respondents to the survey indicated that they had experienced bullying, and one in 14 male respondents had been sexually harassed. This report demonstrates that bullying and sexual harassment affect all genders, both directly (as targets) and indirectly because of the adverse
42 See Kemp (n 41) 366; Margaret Hodgins, Sarah MacCurtain and Patricia Mannix McNamara, ‘Workplace Bullying and Incivility: A Systematic Review of Interventions’ (2014) 7 International Journal of Workplace Health Management 54, 55. 43 Tianwei Xu and others, ‘Workplace Bullying and Workplace Violence as Risk Factors for Cardiovascular Disease: A Multi-Cohort Study’ (2019) European Heart Journal 1124–1134; Hershcovis, Reich and Niven (n 40) 9–10. 44 See Kemp (n 41) 366; Steven Appelbaum, Gary Semerjian and Krishan Mohan, ‘Workplace Bullying: Consequences, Causes and Controls (Part One)’ (2012) 44 Industrial and Commercial Training 203, 205. 45 See Kemp (n 41) 366. 46 Acas, ‘Acas Study Reveals that Workplace Bullying is on the Rise with Many People Too Afraid to Talk About It’ (16 November 2015) www.acas.org.uk/index.aspx?articleid=5543 accessed 5 April 2019. 47 Carol Jones, ‘Drawing Boundaries: Exploring the Relationship Between Sexual Harassment, Gender and Bullying’ (2006) 29 Women’s Studies International Forum 147; Carlo Caponecchia and Anne Wyatt, ‘Distinguishing Between Workplace Bullying, Harassment and Violence: A Risk Management Approach (2009) 25 Journal of Occupational Health and Safety, Australia and New Zealand 439. 48 Deborah Lee, ‘Bully for Men’ (2001) 42 Trouble and Strife 48, 51; Deborah Lee, ‘“He Didn’t Sexually Harass Me, As in Harassed for Sex… He Was Just Horrible”: Women’s Definitions of Unwanted Male Sexual Conduct at Work’ (2001) 24(1) Women’s Studies International Forum 25. 49 See Hoel and Vartia (n 35) 11–14. 50 See generally Margaret Thornton, ‘Sexual Harassment Losing Sight of Sex Discrimination’ (2002) 26 Melbourne University Law Review 422; O’Callaghan v Loder [1983] 3 NSWLR 89 (Australia). 51 As are non-binary members of the profession. Of the 14 survey respondents who identified as non-binary or self- defined, 71% had been bullied and 43% had been sexually harassed – albeit the small sample size means it is not possible to draw broader conclusions from these results.
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CALD Meeting Paper Page 297 CALD Meeting - 4 Oct 2019 Item F01(1) workplace impacts. Comparative research in the education sector has found that ‘an environment of bullying drags everyone’s achievement down, not just that of the victims’.52
Not alone
The legal profession is not atypical in facing these issues. A 2018 report of the European Parliament on bullying and sexual harassment found that, at any one time, five to ten per cent of the European workforce is subjected to bullying at work.53 In 2018, the Australian Human Rights Commission found that 20% of Australian workers had been sexually harassed in the workplace within the past 12 months.54 There is also increasing awareness of the problem internationally. For example, the International Labour Organization has engaged with the issue of violence and harassment at work and there have been calls for an international convention to ‘signal without ambiguity that violence and harassment is unacceptable and the antithesis of decent work and… demands serious and urgent attention’.55
Industries including healthcare,56 accounting,57 finance,58 engineering59 and technology60 have all been shaken by reports of workplace bullying and sexual harassment in recent years. The ‘Big Four’ accounting firms recently revealed that, over the past four years, dozens of partners resigned or were dismissed following allegations of inappropriate behaviour.61 In 2018, Google employees in offices
52 Yekaterina Chzhen, ‘School Bullying Harms Everyone, Not Just the Victims’, United Nations International Children’s Emergency Fund (UNICEF), 12 November 2018, www.unicef-irc.org/blogposts/79 accessed 5 April 2019; UNICEF, ‘An Unfair Start: Inequality in Children’s Education in Rich Countries’ (Innocenti Report Card 15, 2018). 53 See Hoel and Vartia (n 35) 8. 54 Australian Human Rights Commission, ‘Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces’ (2018) 25. 55 International Labour Office, ‘Ending Violence and Harassment Against Women and Men in the World of Work’ (1st edn, International Labour Organization, 107th session, 2018) 100; International Labour Office, ‘Ending Violence and Harassment Against Women and Men in the World of Work’ (2nd edn, International Labour Organization 107th session, 2018) 9. 56 See, eg, Wendy Crebbin and others, ‘Prevalence of Bullying, Discrimination and Sexual Harassment in Surgery in Australasia’ (2015) 85 ANZ Journal of Surgery 905, 905–907; Paula Johnson, Sheila Widnall and Frazier Benya, Sexual Harassment of Women: Climate, Culture and Consequences in Academic Sciences, Engineering, and Medicine (Washington, DC, The National Academies Press 2018); Rhea Liang, Tim Dornan and Debra Nestel, ‘Why do Women Leave Surgical Training: A Qualitative and Feminist Study’ (2019) 393 The Lancet 541; Sarah Marsh, ‘Bullying and Sexual Harassment “Endemic” in NHS Hospitals’, The Guardian (London, 24 February 2019) www.theguardian.com/society/2019/feb/24/ bullying-sexual-harassment-nhs-hospitals accessed 5 April 2019. 57 See, eg, Madison Marriage, ‘Accounting Watchdog Criticised Over Stance on Sexual Harassment’, Financial Times (London, 13 December 2018) www.ft.com/content/0cd6827e-fe33-11e8-ac00-57a2a826423e accessed 5 April 2019. 58 See, eg, Motoko Rich, ‘Top Finance Official in Japan Resigns Over Harassment Accusations’,The New York Times (London, 18 April 2018) www.nytimes.com/2018/04/18/world/asia/japan-sexual-harassment-junichi-fukuda.html accessed 5 April 2019; Jamie Smyth, ‘ANZ sacks banker over sexual harassment’, Financial Times (London, 29 November 2017) www.ft.com/content/91b77352-d4ba-11e7-8c9a-d9c0a5c8d5c9 accessed 5 April 2019. 59 See, eg, Johnson, Widnall and Benya (n 56); Society of Women Engineers, ‘Report: Half of All Women in Engineering Schools Experience Sexual Harassment’, Associated Press News (New York, 19 October 2018) www.apnews.com/19d55b25 79fd7421be5970840a3ba532 accessed 5 April 2019. 60 See, eg, Julie Bort, ‘A LOT of Tech Workers Are Being Bullied at Work’, Business Insider (New York, 18 February 2015) www.businessinsider.com/it-pros-bullied-at-work-2015-2?r=US&IR=T accessed 5 April 2019; Brinda Sarkar, ‘#MeToo in Tech: 87% Women Would Opt Out of a Firm If Sexual Harassment Takes Place, Reveals Survey’, The Economic Times (Mumbai, 25 March 2019) https://economictimes.indiatimes.com/magazines/panache/metoo-in-tech-87-women- would-opt-out-of-a-firm-if-sexual-harassment-takes-place-reveals-survey/articleshow/68558526.cms accessed 5 April 2019. 61 Kaya Burgess and Tabby Kinder, ‘Revealed: 37 Partners at Big Four Accounting Firms Leave Over Sex and Bullying Claims’, The Times (London, 11 December 2018) www.thetimes.co.uk/article/revealed-37-partners-at-big-four- accounting-firms-leave-over-sex-and-bullying-claims-cr2stzd0f accessed 5 April 2019.
18 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 298 CALD Meeting - 4 Oct 2019 Item F01(1) all over the world staged a walkout, beginning in Singapore, to protest gender inequality and the company’s reaction to workplace sexual harassment.62 In the same year, more than 20 intellectuals and media personalities were accused of sexual misconduct in China,63 while in India, a high-profile billionaire resigned after an investigation into allegations of sexual harassment.64 Movements like #MeToo have not been universal, though, and some jurisdictions have seen a significant backlash.65
The prevalence of these issues in other professions indicates that workplace bullying and sexual harassment have societal and structural causes. That bigger picture should inform the legal profession’s response and encourage us to collaborate with other sectors in addressing these issues. It is not an excuse. The New Zealand Law Society’s President, Kathryn Beck, explained in an open letter in 2018: ‘A natural response is to ask what happens in other businesses and professions. That would be to deflect from the real issue. We can’t afford to do that’.66 While the legal profession may not be unique in facing these challenges, this report is about the profession, and the profession alone has responsibility for addressing bullying and sexual harassment within our workplaces.
Structure and terminology
This report begins by explaining the research methodology adopted, before outlining survey demographics. It then proceeds with three primary sections: bullying; sexual harassment; and policies and training aimed at addressing and preventing this conduct. Each section draws extensively on survey data to provide a comprehensive examination of the nature, prevalence and impact of these forms of conduct within the profession. Throughout these sections, qualitative responses to the survey are included to add personal perspectives. Where necessary, these were edited to decrease the risk of the respondent or their workplace being identifiable. Next, the report assesses the data for nine jurisdictions – Australia, Brazil, Costa Rica, Malaysia, Russia, South Africa, Sweden, the UK and the US – to highlight regional trends and divergences. Finally, it articulates ten recommendations, informed by the literature, survey data and stakeholder engagement during this research, and outlines steps the IBA will take to advance each recommendation. For transparency, the survey questions are extracted
62 ‘Google Staff Walk Out Over Harassment, Inequality’, The Straits Times (Singapore, 2 November 2018) www.straitstimes.com/ world/united-states/google-staff-walk-out-over-harassment-inequality accessed 5 April 2019; Matthew Weaver and others, ‘Google Walkout: Global Protests After Sexual Misconduct Allegations’, The Guardian (London, 1 November 2018) www.theguardian. com/technology/2018/nov/01/google-walkout-global-protests-employees-sexual-harassment-scandals accessed 5 April 2019. 63 Maria Repnikova and Weile Zhou, ‘#MeToo Movement in China: Powerful Yet Fragile’, Al Jazeera, (Doha, 22 October 2018) www.aljazeera.com/indepth/opinion/metoo-movement-china-powerful-fragile-181022082126244.html accessed 5 April 2019; Lily Kuo, ‘#MeToo in China: Movement Gathers Pace Amid Wave of Accusations’, The Guardian (London, 31 July 2018) www. theguardian.com/world/2018/jul/31/metoo-in-china-movement-gathers-pace-amid-wave-of-accusations accessed 5 April 2019. 64 Megha Bahree, ‘Flipkart CEO Binny Bansal Resigns After Probe Into Personal Misconduct’, Forbes (Jersey City, 13 November 2018) www.forbes.com/sites/meghabahree/2018/11/13/flipkart-ceo-binny-bansal-resigns-after-probe-into- personal-misconduct accessed 5 April 2019. 65 See, eg, Karla Adam and William Booth, ‘A Year After it Began, Has #Metoo Become a Global Movement?’ The Washington Post (Washington, DC, 5 October 2018) www.washingtonpost.com/world/a-year-after-it-began-has-metoo-become-a- global-movement/2018/10/05/1fc0929e-c71a-11e8-9c0f-2ffaf6d422aa_story.html accessed 5 April 2019; Lynsey Chutel, ‘The #MeToo Movement Should Listen to the Silence of African Women’, Quartz Africa (New York, 23 December 2018) https://qz.com/africa/1501088/the-metoo-movement-should-listen-to-the-silence-of-african-women accessed 5 April 2019; Repnikova and Zhou (n 63). 66 New Zealand Law Society, ‘Letter from Kathryn Beck to All New Zealand Lawyers’, 30 May 2018, www.lawsociety.org.nz/ news-and-communications/latest-news/embracing-the-power-of-real-disruption accessed 5 April 2019.
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CALD Meeting Paper Page 299 CALD Meeting - 4 Oct 2019 Item F01(1) in an appendix. A comparative summary of different approaches to regulating bullying and sexual harassment is also appended.
An explanation of terminology is required. Throughout this report, ‘target’ is used to refer to survey respondents who reported experiencing bullying or sexual harassment. Target is used rather than ‘victim’, in light of the pejorative connotations often associated with the latter term. ‘Perpetrator’ refers to those alleged to have bullied or sexually harassed – it is not intended to suggest a finding of civil, criminal or administrative liability. All percentages and decimals cited in this report have been rounded to the nearest whole number. Throughout the report, differences between figures are expressed in terms of percentages or percentage points. It is useful to clarify the difference between these phrases. Say, for example, that 10% of female respondents and 20% of male respondents had witnessed sexual harassment.67 Female respondents would be 50% less likely than male respondents to have witnessed harassment (because twice as many male respondents had witnessed this conduct). However, female respondents would be only ten percentage points less likely to have witnessed harassment (20% minus 10%).
67 These figures are examples only. For actual data, see the Sexual Harassment chapter.
20 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 300 CALD Meeting - 4 Oct 2019 Item F01(1) Methodology
In late June 2018, the IBA – in conjunction with market research company Acritas – launched a global survey on bullying and sexual harassment in the legal profession. The online survey was available in six languages: English, French, Italian, Portuguese, Russian and Spanish. The survey, which is extracted in Appendix 1, began by asking for demographic data: gender; age; jurisdiction; and workplace type. For those who worked at law firms, additional questions were asked about size of firm, their role and length of employment. Respondents were asked about the prevalence of policies and training at their workplaces aimed at addressing bullying and sexual harassment. They were then asked whether they had experienced bullying and/or sexual harassment during their career. If they had, respondents could answer a range of further questions about the nature of different incidents of bullying or sexual harassment and their impact. If they had not, respondents were asked whether they had witnessed such conduct in the workplace. At various points, respondents were given an option to provide qualitative comments.
The survey was distributed widely: through emails to IBA members, social media posts and promotional material. The IBA also contacted every IBA member bar association, law society and group member law firm, asking them to raise awareness about the survey among their members and employees. The survey was open to all members of the profession – IBA membership was not a requirement. The survey was anonymous and no identifying information was sought. Neither the IBA nor Acritas is able to identify individual respondents or their workplaces. Internet Protocol (IP) addresses were captured to ensure survey integrity and prevent multiple completions by the same respondent. The survey closed in October 2018, having been open for approximately four months.
Two primary methods have been adopted by past surveys on bullying and sexual harassment.68 The self-labelling method asks respondents to apply the label of bullying or sexual harassment to their own experiences, without providing detailed guidance about the meaning of those labels. The behavioural method, on the other hand, provides respondents with a list of behaviours and asks whether they have experienced those behaviours. The present survey combined these methods by first asking whether the respondent had experienced bullying or sexual harassment, and then providing a list of indicative behaviours (including an ‘other’ option). While a broad legal definition of harassment was provided at the start of the survey for guidance, the survey did not seek to only capture bullying or sexual harassment that might be legally actionable. Past research has found that questions predicated on a legal definition of such conduct can lead to underreporting.69 It should be emphasised that the rates of bullying and sexual harassment highlighted by this report cannot be equated with the prevalence of conduct that could give rise to liability.
68 See Hoel and Vartia (n 35) 15. 69 Remus Ilies and others, ‘Reported Incidence Rates of Work-Related Sexual Harassment in the United States: Using Meta-Analysis to Explain Reported Rate Disparities’ (2003) 56(3) Personnel Psychology 607.
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CALD Meeting Paper Page 301 CALD Meeting - 4 Oct 2019 Item F01(1) Survey research, like any method of inquiry, is subject to certain limitations, and researchers should be transparent about potential shortcomings.70 Quantitative research is ‘very good at describing the problem, but not as good at explaining why or how the problem exists’.71 The findings of this report are predominantly descriptive and correlative – it is difficult with the present data to draw firm conclusions about causation. However, these limitations do not diminish this report’s significance. As early pioneers of quantitative legal research noted, the resulting statistics ‘are not an end in themselves but are intended to present a foundation for more detailed consideration’.72 Notwithstanding a number of important country-specific studies referred to above, there is an absence of global data concerning these phenomena. This report is therefore a necessary starting point.
Nonresponse bias
An additional limitation is the risk of nonresponse bias. Nonresponse bias is a recognised phenomenon in survey research, which occurs ‘when the likelihood of responding [to a survey] is correlated with the variable(s) being measured’.73 In promotional material regarding the survey, it was made clear that responses were sought from all members of the profession, not only those who had suffered from bullying or sexual harassment. Nevertheless, some respondents expressed concern that targets would be more likely to respond to the survey than those who had not experienced bullying or sexual harassment.74 The degree of nonresponse bias in a survey can be analysed in a number of ways, including through comparison of survey results with other data sources,75 replication of the survey and ‘comparison of the sample and population’.76 There is a lack of comprehensive demographic data about the global legal profession. Women responded to the survey at higher rates than men, which indicates a degree of nonresponse bias. Poststratification – weighting survey data to match demographics in the population surveyed – can decrease nonresponse bias.77 At various points, where data varied significantly between genders, the report weights the data to reflect this. The IBA has compared the data from this survey with other data sources, including its 2017 Women in Commercial Legal Practice report.78 The results of that survey, which did not have a specific bullying and sexual harassment focus, were broadly
70 See generally Kevin Wright, ‘Researching Internet-Based Populations: Advantages and Disadvantages of Online Survey Research, Online Questionnaire Authoring Software Packages, and Web Survey Services’ (2005) 10 Journal of Computer-Mediated Communication, available at https://academic.oup.com/jcmc/article/10/3/JCMC1034/4614509 accessed 1 May 2019. 71 See Liang, Dornan and Nestel (n 56) 541. 72 Note, ‘The Supreme Court, 1948 Term’ (1949) 63 Harvard Law Review 119. 73 Daniel Merkle, ‘Nonresponse Bias’ in Paul Lavrakas (ed), Encyclopedia of Survey Research Methods (SAGE Publications 2008) 531. 74 This concern is not unique to the present survey. As The Economist explained of a recent survey of economists: ‘It is possible that the sample is biased, pushing up the apparent frequency of discrimination. The disgruntled may have been especially keen to have their say.’ However, this nonresponse bias might be balanced by a countervailing bias: ‘Against that, the survey may have struggled to reach those who had been so discouraged by their experience that they had left the profession altogether’: ‘A Dispiriting Survey of Women’s Lot in University Economics’, The Economist (London, 23 March 2019) www.economist.com/ finance-and-economics/2019/03/23/a-dispiriting-survey-of-womens-lot-in-university-economics accessed 5 April 2019. 75 Timothy Johnson and Joseph Wislar, ‘Response Rates and Nonresponse Errors in Surveys’ (2012) 307 Journal of the American Medical Association 1805, 1805–1806 cited in Michael Davern, ‘Nonresponse Rates are a Problematic Indicator of Nonresponse Bias in Survey Research’ (2013) 48 Health Services Research 905, 909. 76 Jonathon Halbesleben and Marilyn Whitman, ‘Evaluating Survey Quality in Health Services Research: A Decision Framework for Assessing Nonresponse Bias’ (2013) 48 Health Services Research 913, 913–930. 77 See Merkle (n 73) 532. 78 Jane Ellis and Ashleigh Buckett, ‘Women in Commercial Legal Practice’ (International Bar Association, December 2017).
22 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 302 CALD Meeting - 4 Oct 2019 Item F01(1) consistent with the findings of the current research; indicating that nonresponse bias did not have a material effect on the quality of this survey data.79
Perception paradox
A theme that will emerge throughout this report is the notion of a ‘perception paradox’, whereby jurisdictions typically viewed as ‘progressive’ in addressing issues of bullying and sexual harassment have higher reported rates of such conduct than elsewhere. Cultural norms influence individual perceptions of bullying and sexual harassment, and this survey was undertaken on a subjective basis.80 Accordingly, broad societal awareness of these issues and commonplace workplace utilisation of policies and training may have contributed to above-average reported rates in certain jurisdictions and workplace types. In other words, it is possible that the reported prevalence of bullying and sexual harassment in these places approximately aligns with the absolute or objective rate of such conduct (to the extent that such a concept is measurable), while in places with lower reported rates, there may be a disparity between perception and reality. Other research has found that ‘reports of bullying often rise following the introduction of a new [anti-bullying] intervention’, perhaps due to an increased awareness of what constitutes bullying.81 Similar trends have been observed in anti-corruption contexts, where the introduction of anti-corruption regulation has coincided with an increase in the perception of corruption. It has been suggested that this is not due to an absolute rise in corruption but because the introduction of the law increases societal awareness.82
Figure 1 illustrates this trend. It plots the gender-weighted rates of bullying and sexual harassment for Australia, Norway and Russia, according to the survey data. These three jurisdictions were selected based on their varying performance on the United Nations Development Programme’s 2017 Gender Inequality Index as a proximate measure for societal gender equality. In light of research indicating that certain unacceptable workplace behaviour is more common in male-dominated workplaces, and this report’s findings that women are disproportionately affected by this conduct, it can be posited that there is a correlation between gender inequality and rates of sexual harassment and bullying.83 Norway is one of the best performing countries globally – ranking fifth in the world for gender equality. Australia sits at 23rd and Russia is 53rd. Figure 1 suggests that Australian legal workplaces are rife with bullying and sexual harassment, while Norway and Russia have civil and respectful legal workplaces. This may be accurate. However, an alternative explanation is that each jurisdiction’s progress in addressing bullying and sexual harassment corresponds roughly with their Gender Inequality Index score, but that the perception paradox
79 Ibid 34. 80 One study examined the impact of culture on the acceptability of workplace bullying, finding that definitions of bullying and perceptions of acceptable behaviour vary globally: Power and others (n 37) 376. Similarly, research suggests that the extent to which employees identify incidents of sexual behaviour as sexual harassment is influenced by the existence/implementation of workplace policies addressing sexual harassment, political events, the extent to which public institutions support anti-discrimination legislation and other cultural factors: McDonald (n 23) 3. 81 Patricia Gillen and others, ‘Interventions for Prevention of Bullying in the Workplace’ (2017) 1 Cochrane Database of Systematic Reviews 1, 8. 82 Analysis of corruption perception in the European Union has also found that particular political scandals often result in an increased perception of corruption: Jennifer Marek, ‘Evaluating Determinants of Perceptions of Corruption in the European Union’ (MA Thesis, University of North Carolina 2012) 41. 83 See Gertner (n 18) 94; McDonald (n 23) 3; Dieter Zapf and others, ‘Empirical Findings on Prevalence and Risk Groups of Bullying in the Workplace’ in Ståle Einarsen and others (eds), Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice (2nd edn, CRC Press 2011) 75, 80.
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CALD Meeting Paper Page 303 CALD Meeting - 4 Oct 2019 Item F01(1) inhibits a clear visualisation via the data. It may be that the prevalence of such conduct in Russia is higher than the data suggests, while the Australian and Norwegian data is reflective of reality – with Norway performing much better in addressing these issues.
Figure 1: perception paradox*
Russia Australia Norway Russia Australia Norway 27.8% 61.4% 19.2% 11.5% 29.6% 19.6%
Bullied Sexually harassed
*Gender-weighted
24 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 304 CALD Meeting - 4 Oct 2019 Item F01(1) Demographics
Gender
A total of 6,980 respondents completed the survey. This is the largest survey by response rate ever conducted by the IBA. A total of 4,651 survey respondents were female, 2,261 were male, 54 preferred not to specify and 14 were non-binary or self-defined – see Figure 2. There are no available gender statistics for the entirety of the global legal profession. A 2013 study suggested that women accounted for 36% of lawyers globally, albeit the accuracy of the methodology adopted – critical mass theory – has been questioned.84 This figure correlates with the most recent data from the American Bar Association.85 However, in England and parts of Australia, more than 50% of practising lawyers are female.86 Additionally, women are typically overrepresented in secretarial and business support roles.87 Given the gendered aspect of some of the phenomena under consideration, and because of the overrepresentation of women as survey respondents, at various points this report adopts a gender-weighted average on the basis of a 1:1 ratio. The adoption of this assumption of gender parity in the profession is inexact, particularly as gender ratios vary widely by region. Notwithstanding that caveat, it provides a helpful proxy indicator for how these issues manifest in workplaces at a macro level.88
Given the lack of data on non-binary/self-defined individuals in the profession, and the limited sample size in this survey, no allowances for this category were made in the gender-weighted calculation. This was done for pragmatic purposes and is not intended to discount the particular challenges faced by non-binary/self-defined individuals in relation to bullying and sexual harassment. Further research in this area is welcomed.
84 Ethan Michelson, ‘Women in the Legal Profession, 1970–2010: A Study of the Global Supply of Lawyers’ (2013) 20 Indiana Journal of Global Legal Studies 1083, 1119; Drude Dahlerup ‘The Story of the Theory of Critical Mass’ (2006) 2 Politics & Gender 511. 85 American Bar Association, ‘ABA National Lawyer Population Survey: 10-Year Trend in Lawyer Demographics’ (2018) www.americanbar.org/content/dam/aba/administrative/market_research/National_Lawyer_Population_ Demographics_2008-2018.pdf accessed 5 April 2019. 86 Law Society of England and Wales, Annual Statistics Report 2017 (18 June 2018) www.lawsociety.org.uk/support- services/research-trends/annual-statistics-report-2017 accessed 5 April 2019; Law Society of New South Wales, ‘Practising Solicitor Statistics’ (31 December 2018) www.lawsociety.com.au/sites/default/files/2019-01/201812%20 Practising%20Solicitor%20Statistics%20-%20Dec%202018.pdf accessed 5 April 2019. 87 See, eg, Office for National Statistics,Understanding the Gender Pay Gap in the UK (17 January 2018) www.ons.gov. uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/articles/understandingthegender paygapintheuk/2018-01-17 accessed 5 April 2019. 88 As noted statistician George EP Box once observed, ‘all models are wrong, but some are useful’.
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CALD Meeting Paper Page 305 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 2: gender of survey respondents
Female: 67% Male: 32% Prefer not to specify: 1% Other (non-binary/self-defined): 0.2%
Workplace
‘Law firm’ was the most common workplace (at 73% – see Figure 3). This reflects IBA membership demographics and is unsurprising, given the primary distribution channels. Response rates were lower from in-house lawyers and government lawyers (at 9% and 5% respectively). Although the legal profession is unified in many jurisdictions, a separate category (barristers’ chambers) was included. This was considered necessary given the qualitatively different nature of those workplaces from law firms in jurisdictions with a bifurcated bar. There were a small number of responses from the judiciary (‘including courts and tribunals’). This category did not distinguish between members of the judiciary and their administrative staff. Finally, there were a small number of respondents who selected ‘other’, including legal academics and those in other law-related fields that were not encapsulated by the five main options.
Figure 3: workplace of survey respondents
Judiciary: 3% Government: 5% Barristers’ chambers: 6%
Corporation/ organisation: 9%
Law firm: 73%
26 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 306 CALD Meeting - 4 Oct 2019 Item F01(1) Language
One limitation of the predecessor survey from the IBA’s Women in Commercial Legal Practice report was that the questions were only available in English. To improve this survey’s accessibility, it was available in six languages. Nevertheless, English remained the primary language of completion (see Figure 4) – reflecting the English-speaking nature of much of the IBA’s membership and primary audiences of key distribution channels.
Figure 4: language Total surveys completed 6,980 English 5,478 79% Spanish 828 12% Russian 240 3% French 238 3% Portuguese 119 2% Italian 77 1%
Region
Half of the respondents to the survey were from Europe (see Figure 5), with significant proportions from Oceania (15%), North America (13%) and Latin America (12%). Numbers were lower from Asia (6%) and Africa (4%), which was likely to be caused by language barriers and lower IBA membership in those regions. While the overall data has considerable geographic diversity, there is a degree of Anglocentrism: almost 40% of survey respondents were located in Australia, Canada, New Zealand, the UK and the US.
Figure 5: region of survey respondents
Western Europe: 24% Scandinavia: 18% Eastern Europe: 9% Oceania: 15% North America: 13% Latin America: 12% Asia: 6% Africa: 4%
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CALD Meeting Paper Page 307 CALD Meeting - 4 Oct 2019 Item F01(1) Top countries
Countries with more than 100 respondents are considered to have sufficient data to make robust country-level findings. Fifteen countries across five continents reached this threshold (see Figure 6). High response rates from certain jurisdictions were driven by the efforts of bar associations, law societies and group member firms.
Figure 6: country Total surveys completed 6,980 Australia 937 13% United Kingdom 715 10% Sweden 644 9% Canada 571 8% Norway 509 7% United States 359 5% Spain 208 3% Costa Rica 165 2% Chile 161 2% Luxembourg 158 2% Germany 155 2% Brazil 129 2% Latvia 127 2% South Africa 126 2% Russian Federation 120 2%
28 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 308 CALD Meeting - 4 Oct 2019 Item F01(1) Age
The majority (53%) of respondents to the survey were under the age of 40 (see Figure 7), and more than three-quarters of respondents were under 50. There is a slight clumping towards younger age brackets, which is likely to indicate a heightened awareness of these issues among younger generations. Otherwise, the age distribution of respondents is spread evenly.
Figure 7: age of survey respondents
60+ 55-59 50-54 45-49 40-44 8% 7% 9% 11% 12%
prefer not 35-39 30-34 25-29 under 25 to state 14% 18% 17% 4% 1%
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CALD Meeting Paper Page 309 CALD Meeting - 4 Oct 2019 Item F01(1) Law firms
Respondents who selected ‘law firm’ as their workplace were asked several additional demographic questions. Respondents were reasonably evenly spread across firms of differing sizes (see Figure 8) and in terms of length of service (see Figure 9). Partner was the most common position of law firm respondents (30% – see Figure 10), followed by solicitor/associate (27%).
Figure 8: firm size of survey respondents
100> partners: 24%
51-100 partners: 11%
11-50 partners: 21%
5-10 partners: 13%
<5 partners: 28%
Prefer not to specify: 3%
Figure 9: survey respondent’s time at firm
More than 15 years: 16%
10-15 years: 11%
5-10 years: 18% 2-5 years: 24%
1-2 years: 15%
Less than 1 year: 16%
Prefer not to specify: 1%
Figure 10: survey respondent’s position
Partner: 30%
Associate or solicitor: 27%
Senior associate: 15%
Business services: 11%
Clerk, intern or paralegal: 5%
Trainee or graduate: 5%
Special/of counsel: 3%
Prefer not to state: 2%
Consultant: 1%
Temporary/contract solicitor: 1%
30 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 310 CALD Meeting - 4 Oct 2019 Item F01(1) Individual characteristics
Given data protection restrictions in certain jurisdictions, this survey did not ask questions regarding personal characteristics, such as sexual preference, ethnicity, physical ability and parental responsibilities. This is regrettable – and indeed several respondents criticised the survey for this shortcoming. Following the publication of Kimberle Crenshaw’s landmark work in 1989, the concept of intersectionality has become central to understanding how interlocking notions of privilege operate to marginalise minority groups.89 An intersectional analysis is particularly pertinent in the present context. As the Australian Human Rights Commission has observed: ‘sexual harassment discourse is currently heteronormative – LGBTI people experience sexual harassment in the same way and also in additional ways to heterosexual people’. Similarly, ‘the low representation of people with a disability in the workplace is a driver of sexual harassment and [unwelcome] paternalism’.90 While the absence of data limits the ability of this report to undertake an integrated intersectional analysis, that is not to deny that a range of personal characteristics have distinct and overlapping impacts on experiences of bullying and sexual harassment.
In Their Own Words
I was told by the senior partner at a top tier firm that despite my work performance, the firm would not keep me on because I am a lesbian. “ Female, in-house, Canada
I applied for a promotion shortly after my daughter was born. When I was given feedback after my application was unsuccessful, I was told it was because I would not be in the office enough. “ Male, Australia
89 Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139. 90 Australian Human Rights Commission, ‘Email Newsletter – Everyone’s Business: National Workplace Sexual Harassment Inquiry’ (28 February 2018) https://mailchi.mp/humanrights.gov.au/reminder-to-register-national-inquiry-into- workplace-sexual-harassment-hobart-consultation-267825?e=b8f7865e5d accessed 5 April 2019; generally, see Lauren Stiller Rikleen, The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace (Chicago, American Bar Association 2019) 75–79.
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CALD Meeting Paper Page 311 CALD Meeting - 4 Oct 2019 Item F01(1) Bullying
In Their Own Words
I felt sick every day I went to work under this manager. He would have fits of rage – screaming at me, violently kicking filing cabinets while I cowered in the corner of my tiny office. I was frightened “of him in those moments. He would go to lunch with the rest of the office and I was never invited. Female, law firm, Australia
Bullying is rampant in the legal profession. Almost half of the respondents to this survey have experienced bullying during their career. Bullying is particularly common in government legal workplaces and larger law firms. It occurs overwhelmingly in the physical workplace, perpetrated by line managers/supervisors and other senior colleagues. Bullying is very rarely reported, predominantly due to concerns surrounding the status of the perpetrator and fears of personal or professional repercussions. When the conduct is reported, workplaces are failing targets. Perpetrators are infrequently sanctioned and, in almost three-quarters of bullying cases, respondents perceive their workplace’s response as negligible or insufficient. The adverse impact of this widespread bullying is considerable. Over half of bullying cases have led to targets leaving or considering leaving their workplace. A significant proportion have quit or are contemplating quitting the profession entirely. The legal profession has a chronic bullying problem.
Gender
The prevalence of bullying in legal workplaces has a significant gendered dimension – see Figure 11. More than half of female respondents indicated that they had been bullied during their career, while approximately one in three male respondents had experienced bullying. Almost three-quarters of non-binary/self-defined respondents had been bullied, although the low sample size for this category prevents statistically persuasive conclusions. On the basis of a 1:1 gender ratio, these respective rates would equate to a 43% gender-weighted prevalence of bullying in the legal profession.
Respondents who had not been bullied were asked whether they had witnessed workplace bullying: 40% of female respondents and 32% of male respondents said they had. This indicates a perception gap: the empirical prevalence of workplace bullying is significantly higher than that perceived by bystanders. This may be because bullying often takes place behind closed doors, or because perceptions of what constitutes bullying are heavily influenced by individual and cultural factors. The gendered dimension of the perception gap is also noteworthy, suggesting that women may be more perceptive to conduct that constitutes bullying.
32 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 312 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 11: bullying (gender)
Have you ever been bullied in the workplace?
Yes: 55% No: 45% Bullying (female)
Yes: 30.2% No: 69.8%
Bullying (male)
Yes: 71.4% No: 28.6%
Bullying (non-binary/self-defined)
In Their Own Words
As a man being bullied by a woman in the workplace, I felt – in addition to angry and hurt – absurd. I believed, correctly, that no one would take my complaints seriously, and that people would “simply fall back on societal stereotypes in order to somehow explain away the problem. Male, in-house, Canada
Workplace
The survey results indicate that government legal workplaces have the highest average gender-weighted prevalence of bullying, at 69% of respondents (see Figure 12). Law firms have the lowest rate, at 39%, while in-house workplaces (45%), judicial workplaces (46%) and barristers’ chambers (48%) all sit just above the overall mean. Judicial workplaces had the largest gender gap, with a significant 47 percentage point difference between the rates of bullying experienced by female and male respondents, while government legal workplaces had the smallest gender gap. The startling rate of bullying in government legal workplaces is surprising. It may be that the widespread prevalence of anti-bullying policies and training at government legal workplaces – the highest rate in the profession – leads to greater awareness of what constitutes bullying. This, in turn, may contribute to the high rate of bullying identified in the survey, reflecting a perception paradox.91
91 See the Methodology section for further discussion of the perception paradox.
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CALD Meeting Paper Page 313 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 12: bullying prevalence by workplace
Have you ever been bullied in the workplace? Yes
Male: 27.5% Female: 51.2%
Male: 36.4% Female: 60%
Male: 32.2% Female: 58.7%
Male: 65.9% Female: 71.8%
Male: 24% Female: 71%
Law firm Barristers’ chambers Corporation/organisation Government Judiciary
Bullying is significantly more prevalent at large law firms – see Figure 13. There is little variation among firms of between one and 100 partners; however, respondents at firms with more than 100 partners were approximately ten percentage points more likely to experience bullying. This trend is mirrored across male and female respondents.
Figure 13: bullying prevalence by law firm size*
Have you ever been bullied in the workplace? Yes
100> partners: 45.6%
51-100 partners: 36%
11-50 partners: 35%
5-10 partners: 36.6%
<5 partners: 38.2%
*Gender-weighted
34 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 314 CALD Meeting - 4 Oct 2019 Item F01(1) Region
Legal professionals in Oceania experience the highest prevalence of bullying, at 62% on a gender- weighted basis. Africa (52%), North America (51%) and Latin America (46%) were all above the global average of 43%. Western Europe was on the average, while other regions were below average. Female respondents from Oceania experienced the highest prevalence of bullying (74%), while male respondents from Scandinavia experienced the lowest prevalence of bullying (14%). Africa had the largest gap between bullying prevalence among male and female respondents, while Eastern Europe had the smallest disparity – see Figure 14. Given the uneven spread of responses within regions and significant variations between jurisdictions within the same region, these trends should be read in conjunction with the country-specific case studies below.
Figure 14: bullying prevalence by region
Have you ever been bullied in the workplace? Yes
Africa
Asia
North America
Latin America Female
Eastern Europe
Western Europe 58.4% 68% 52.1% 58.4% 39.8% 54.5% 31.4% 74.2%
13.6% Scandinavia 36.4% 32.6% 41.6% 33.6% 22.7% 32% 50.4%
Oceania Male: Male: Female: Male: Female: Male: Female: Male: Female: Male: Female: Male: Female: Female: Male: Female:
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 35
CALD Meeting Paper Page 315 CALD Meeting - 4 Oct 2019 Item F01(1) Age/position
Younger legal professionals are disproportionately impacted by bullying. This trend is demonstrated via an examination of respondents bullied within the past year – see Figure 15. The almost linear downwards progression of bullying prevalence provides stark evidence that young people are bullied at higher rates than their older colleagues.
Figure 15: recent bullying by age*
Bullied within the past year (% of total respondents)
60+: 7.9%
55–59: 12.5%
50–54: 14.0%
45–49: 14.1%
40–44: 16.6%
35–39: 17.7%
30–34: 19.8%
25–29: 20.8%
Younger than 25: 32.8%
*Gender-weighted
Plotting all incidents of bullying by age provides further evidence of the disproportionate impact on younger lawyers – see Figure 16. If incidents were evenly distributed across time (ie, if age had no impact), bullying would increase with age in a linear manner. Instead, total incidents of bullying by age plateau between 35–44, and then decline later in life. This decrease may reflect varied perceptions of what constitutes bullying in older age categories or an inability to recall earlier incidents.
36 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 316 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 16: all-time bullying by age
Male Female Gender-weighted 70
60
50
40
30
20 younger than 25 25-29 30-34 35-39 40-44 45-49 50-54 55-59 over 60
Rates of bullying suffered by business services/support staff, paralegals, associates/solicitors and senior associates/senior solicitors working at law firms are similar to the profession-wide average – see Figure 17. The gender-weighted prevalence rate rises slightly among consultants and special counsel/of counsel, possibly reflecting the increased average age of this respondent class and thus the greater temporal opportunity to have been bullied. Interestingly, this hypothesis does not hold true among partners – who as a class experienced 6% less bullying than the overall average. It may be that those in positions of power have collective difficulty recalling such experiences from earlier in their career, or those identified as having ‘partner potential’ may suffer less bullying as a result. Additionally, or alternatively, given the adverse consequences of bullying on career advancement (outlined below) and the disproportionate impact of bullying on junior members of the profession, it may be that targets of bullying are less likely to later become partners. Targets working at law firms were more likely than other respondents to leave their workplace as a result of bullying; indicating a higher level of career disruption caused by bullying in these workplaces, and supporting this broader hypothesis.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 37
CALD Meeting Paper Page 317 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 17: bullying prevalence by law firm position*
Special Senior Partner counsel/ Consultant associate or of counsel senior solicitor 37.2% 43.5% 44.4% 41%
Trainee Business Associate Clerk, intern solicitor services or or solicitor or paralegal or graduate support staff 40.1% 37.6% 40.5% 40.8%
*Gender-weighted
Type
Respondents who had been bullied were asked about the nature of bullying they had experienced – see Figure 18. Respondents could select more than one type, hence the cumulative total exceeds 100%. Ridicule or demeaning language was the most common form of bullying, impacting more than half of bullied respondents. Two forms of supervision-related bullying – ‘overbearing supervision, undermining of work output or constant unproductive criticism’ and ‘being deliberately given too much or too little work, or work inadequate to the position’ – were also commonplace. The distinction between bullying and reasonable supervision is not always clear. As the survey captured the subjective perceptions of targets, it may be that some of this conduct did not, objectively, constitute bullying. This caveat should not detract from these findings. Almost one in two respondents to the survey identified concerns with the nature of the supervision/management they experienced in the legal profession. This broader message must be heard – regardless of the possibility that in some individual cases the allegation of bullying might not be substantiated.
There was broad consistency in the type of bullying experienced between genders. Female respondents were significantly more likely to have experienced too much or too little work, and to have been blocked from opportunities due to gender (or other characteristics). Ridicule or demeaning language was more common than average in barristers’ chambers, while respondents at government legal workplaces were more likely to experience exclusion/victimisation. On average, female targets were bullied in a greater variety of ways – with a ratio of 3.6 bullying types to each bullied female respondent, compared with 3.2 bullying types for each bullied male respondent.
38 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 318 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 18: bullying prevalence by type
57.1%
Ridicule or demeaning language
55.4%
Overbearing supervision, undermining of work output or constant unproductive criticism
55.0%
Misuse of power or position
47.3%
Being deliberately given too much or too little work, or work inadequate to the position
32.3%
Exclusion or victimisation
23.1%
Malicious rumours
21.3%
Implicit or explicit threats, other than relating to the categories above
20.4%
Unfounded threats or comments about job security
16.8%
Being blocked from promotion or training opportunities due to a protected characteristic (such as race, sex, religion)
9.8%
Other
6.3%
Violence, threatened or actual
3.7%
Exclusion from or bullying via social media, including work WhatsApp groups
2.1%
Prefer not to specify
In Their Own Words
[Misuse of power/position] is commonly considered normal or regular, tending to make you look more ‘macho’ and thereby better suited for the work. “ Male, law firm, Peru
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 39
CALD Meeting Paper Page 319 CALD Meeting - 4 Oct 2019 Item F01(1) Frequency and timing
Incidents of bullying are rarely isolated. Respondents who had been bullied were asked whether they had been bullied on more than one occasion: 90% responded affirmatively. There was no variation by gender, age or workplace type. Those respondents were then asked about the nature of the multiple incidents. Over half indicated the bullying was part of a course of conduct perpetuated by the same perpetrator, while 16% of respondents indicated that they had experienced multiple distinct incidents by different perpetrators. Respondents at law firms were more likely than average to experience ongoing, course of conduct bullying, while those at barristers’ chambers were more likely to experience multiple, one-off incidents.
The incidents of bullying recorded by the survey are not solely historical: 38% of cases included one or more incidents that occurred a year or less before survey completion, while just 19% included an incident occurring ten or more years ago – see Figure 19. Respondents were able to select more than one option, hence the cumulative percentage exceeds 100%. Men were seven percentage points less likely to have been bullied within the past year, but six percentage points more likely to have been bullied more than ten years ago. The prevalence of cases within the past year was slightly higher than average at government workplaces and significantly below average at judicial workplaces.92 There was little variation in types of bullying over time.
Figure 19: bullying incidents over time
Within the past month: 13.7%
1-6 months ago: 16.5%
6-12 months ago: 20.9%
1-5 years ago: 41.5%
5-10 years ago: 21.5%
10-20 years ago: 14.3%
More than 20 years ago: 4.4%
Prefer not to state: 3.6%
92 As the survey did not distinguish between judges and judicial assistants, associates, registrars, court staff, etc, and given that in many common law jurisdictions judges join the judiciary later in their professional life after a career elsewhere, it may be that data from the judiciary partly reflects historical incidents that occurred at other workplace types.
40 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 320 CALD Meeting - 4 Oct 2019 Item F01(1) Location
Workplace-related bullying overwhelmingly takes place in the physical workplace. In the survey data, 93% of bullying cases included an incident that occurred in the workplace – see Figure 20. Work social events and courtrooms were the second and third most frequent locations of bullying, at 13% and 9%, respectively. Respondents were able to select more than one option per type of conduct, hence the cumulative percentage exceeds 100%. There was little variation by gender or age, although the likelihood of being bullied at the office of a third party or at a conference increased with age – reflecting the increased exposure to those environments with seniority. Younger respondents were several percentage points more likely to have endured workplace-related bullying on social media – and it might be speculated that the frequency of cyberbullying will only increase. Variation by workplace type was self- explanatory. There were above-average rates of bullying at the workplace in office-based environments, such as law firms (94%), government (95%) and in-house legal teams (98%). Those who worked at barristers’ chambers were less likely to be bullied in the office (77%) and significantly more likely to be bullied during a proceeding or at the office of a third party – reflecting the higher frequency of external engagement among those at the bar.
Figure 20: location of bullying
93.2% Workplace
12.7% Work social event
8.5% During a proceeding (eg, court, arbitration)
5.7% Work travel
5.6% Office of a third party (judge, barrister, consultant etc)
5.5% Conference
4.8% Non-work social event
4.1% Client office
2.3% Other
2.1% Social media
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 41
CALD Meeting Paper Page 321 CALD Meeting - 4 Oct 2019 Item F01(1) Perpetrator
Line managers/supervisors are the most frequent perpetrators of bullying, followed by other senior colleagues – see Figure 21. These findings emphasise the role of hierarchy and power imbalance in facilitating or exacerbating bullying. Respondents could select more than one option per type of conduct. Bullying by clients or support staff was exceedingly rare among respondents. There was no variation in perpetrator identity by target gender. The likelihood of bullying by a line manager/ supervisor decreases with age, while bullying from a third party becomes more common with age. Rates of bullying by line managers/supervisors were below average in barristers’ chambers and judicial workplaces, and above average in in-house and government workplaces. Unsurprisingly, barristers experience far more bullying from third parties – almost 20 percentage points more than average. Line manager bullying decreases as law firm size increases, albeit there is a corresponding rise in bullying from non-supervisor senior colleagues.
There is significant variation in perpetrator identity averages among different forms of bullying conduct. For example, only 38% of workplace violence (threatened or actual) is perpetrated by a line manager/supervisor, while the same category of individuals is responsible (unsurprisingly) for 73% of overbearing supervision, undermining of work output or constant unproductive criticism. Malicious rumours are far more likely to be spread by someone of equal seniority (52%), while exclusion or victimisation is most commonly done by non-supervisor senior colleagues (51%).
Figure 21: perpetrator of bullying
60.5%
Your line manager or supervisor
43.3%
Someone more senior than you (other than your line manager/supervisor)
18.2%
Someone of equal seniority
8.3% A third party (consultant, judge, barrister, a solicitor from another firm)
6.6% Someone junior to you
6.1% Someone in a support function
4.5%
A client
2.6% Other
42 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 322 CALD Meeting - 4 Oct 2019 Item F01(1) In Their Own Words
There should be absolutely no place in this profession, nor any other, for bullies or sexual harassers. At the very least, people deserve dignity and a safe, supportive environment in return for their work. “ Female, law firm, United Arab Emirates
Reporting
When bullying takes place in legal workplaces, it is rarely reported. Survey respondents were asked, for each category of bullying they had experienced, whether they had reported the conduct. Only 11% of respondents had on all occasions, while the majority had never reported any bullying – see Figure 22. Male respondents were seven percentage points more likely to never report bullying. The proportion of targets who reported bullying on all occasions increased slightly with age: from 8% among those aged 25–29 to 17% among those aged 55–59. This may, though, reflect forgetfulness regarding instances of non-reporting. Respondents at government or in-house legal workplaces were most likely to always or sometimes report, while respondents at judicial workplaces or barristers’ chambers were most likely to never report. While respondents at law firms report on all occasions at a similar rate regardless of firm size, the percentage of those reporting sometimes increases significantly at firms with more than 100 partners. This may indicate that an emphasis on policies and reporting protocols at major firms is having some positive impact on reporting rates.
Figure 22: reporting of bullying
Prefer not to say: 4.1% Yes – on all occasions: 11.2%
Sometimes: Never: 27.5% 57.3%
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 43
CALD Meeting Paper Page 323 CALD Meeting - 4 Oct 2019 Item F01(1) Respondents who had reported bullying were asked who they reported to. An overwhelming number of respondents reported to their workplace, while a small number reported to external channels, including professional or public regulators and the police – see Figure 23. Male targets of bullying were four percentage points more likely to report to a regulator. ‘Other’ reporting channels listed by respondents included unions, doctors and informally to colleagues. Reporting channel usage is reasonably consistent across age and region, although there is somewhat less internal reporting in Asian jurisdictions. Internal reporting is more common in law firms (89% of cases) and government legal workplaces (92%), and significantly less common at barristers’ chambers (67%) and judicial workplaces (73%). Internal reporting increases with law firm size – from 80% at firms with fewer than five partners to 96% at firms with more than 100 partners. Conversely, legal professionals at smaller firms and at barristers’ chambers were far more likely to report to the professional body regulator.
Figure 23: reporting channels
Internal workplace channels: 87% Other: 13.7% Professional body regulator (eg, law society, bar association etc.): 4.9% Public regulator: 2% The police: 1.3%
In Their Own Words
I was systematically bullied to the extent I considered, for the first time, taking my life. My confidence was shattered. I began to doubt myself in every aspect of my life, work and personal. “The advice I received from the Law Society was appalling. It was, ‘just get on with it!’ Female, law firm
Respondents who had been bullied but did not report the incident were asked what factor or factors contributed to them not reporting. The profile or status of the perpetrator was the most common reason, followed by concerns about repercussions – see Figure 24. Female respondents were ten percentage points more likely to fear reprisal or other adverse personal consequences and thereby not report. Respondents at barristers’ chambers and judicial workplaces were less likely to be concerned by the status of the perpetrator. Those at government legal workplaces were significantly more likely to lack confidence in reporting procedures.
44 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 324 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 24: reasons for non-reporting of bullying
60.4%
Profile/status of the perpetrator (eg, senior member of the workplace)
57.9%
Fear of repercussions for self
47.0%
Incident endemic to the workplace / perceived as acceptable
37.8%
Lack of confidence in protocols / reporting procedure
25.4%
Did not recognise as bullying / harassment until time had passed
19.4%
Fear of not being believed
17.7%
Fear of repercussions for others in the workplace
15.7%
Unaware of the correct protocols / reporting procedure
15.6%
Lack of evidence
11.3%
Did not wish to revisit the incident (eg, tribunals etc)
8.1%
Reported previously and no / insufficient action taken as a result
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 45
CALD Meeting Paper Page 325 CALD Meeting - 4 Oct 2019 Item F01(1) Workplace response
Respondents who had reported an incident of bullying were asked to provide an assessment of their workplace’s response. Less than 10% of respondents considered that their workplace’s response had been excellent or good, while over 70% rated the response as insufficient or negligible – see Figure 25. Male respondents were ten percentage points more likely to evaluate the workplace response as negligible. There were no significant variations by workplace type.
Figure 25: workplace response to reporting of bullying
Excellent: 2.9% Good: 6.0% Sufficient: 11.0% Insufficient: 33.7% Negligible: 38.2% Inconsistent (where you have reported on multiple occasions): 5.8% Unsure: 2.4%
Respondents were asked if the perpetrator had been sanctioned. In three-quarters of cases, the perpetrator was not sanctioned – see Figure 26. There was very little variation by workplace type or region, although respondents in Oceania were more likely to report that the perpetrator had been sanctioned. Female respondents were more likely to be unaware of any sanctions. Interestingly, although targets of threatened or actual violence were almost 20% more likely than average to report this conduct, perpetrators were only slightly more likely to be sanctioned.
Figure 26: sanctioning bullies
Unaware: Yes: 11.8% 6.4% Sometimes (where you have reported on multiple occasions): 5.5%
No: 76.3%
Respondents were also asked whether their workplace’s intervention had resolved, mitigated or exacerbated the situation. In two-thirds of cases, the situation was unchanged or exacerbated following the intervention – see Figure 26A.
46 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 326 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 26A: outcome of workplace intervention
Prefer not Resolve to answer: the situation: 0.8% 4.2% Unsure: Mitigate 7.3% the situation: 10.6%
Unchanged: Exacerbate 46.9% the situation: 20.3%
Mixed (where you have reported on multiple occasions): 9.8%
Impact
Finally, respondents who had been bullied were asked about the impact the conduct had on them – see Figure 27. More than half of bullied respondents have left, or are considering leaving, their workplace. One in seven bullied respondents have left, or are considering leaving, the profession entirely. These findings should be a cause for concern across the profession. In addition to the considerable adverse emotional and psychological consequences of bullying, the survey indicates that such conduct causes internal disruption, increases staff turnover and contributes to brain drain from the profession. Alongside the compelling moral, ethical and legal motives for addressing bullying, these findings demonstrate that there is also a strong business case for decreasing the prevalence of bullying in legal workplaces.
In Their Own Words
I left the workplace, considered changing careers and contemplated suicide. “ Female, law firm, New Zealand
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 47
CALD Meeting Paper Page 327 CALD Meeting - 4 Oct 2019 Item F01(1) Female respondents were several percentage points more likely to indicate that the bullying had or would force them to transfer internally, change their workplace or leave the profession entirely. Male respondents, on the other hand, were six percentage points more likely to have experienced none of these impacts. Age has a significant influence on the impact of bullying. 71% of bullied respondents aged 34 or below indicated the bullying made them wish to leave their workplace, compared with 56% of those aged over 50. This younger grouping is five percentage points more likely than the older grouping to transfer internally as a result of bullying, and six percentage points more likely to leave the profession entirely. It may be that age heals old wounds – as those over 50 are far more likely to have reported historical incidents, the contemporary impact could have been forgotten with time. Alternatively, or additionally, it may be that age represents an impediment to mobility in spite of bullying, with targets believing that a change in workplace or career is more difficult given their age or duration in that workplace. Whatever the explanation, this age disparity is a consistent trend throughout the report.
Figure 27: impact of bullying*+
Has (or will) this conduct contribute to you:
17.2% Switching practice areas or departments within your workplace
63.4% Leaving your workplace
14.2% Leaving the profession
2.9% Prefer not to say
23.6% None of the above
*Gender-weighted +Respondents could select more than one option
In Their Own Words
Senior management talk a good story about bullying but when it is a big billing lawyer or senior partner involved then the real values show themselves. Until firms start living their values, what they are “really saying is ‘all staff are equal, but some are more equal than others!’ Male, law firm, Italy
48 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 328 CALD Meeting - 4 Oct 2019 Item F01(1) Sexual Harassment
In Their Own Words
Once, the managing partner left me alone with a senior lawyer the firm was courting, who ran his hands up my legs and tried to kiss me. I bumped into the managing partner as I was running from the “restaurant, and he suggested I should consider a relationship with this man. Female, law firm, Canada
Sexual harassment is also alarmingly commonplace in the legal profession. Sexual harassment disproportionately, but not exclusively, affects female members of the profession. It is most prevalent in government legal workplaces and least prevalent in law firms, although it occurs in all workplace types with troubling frequency. Sexual harassment is most commonly perpetrated by a non-supervisor senior colleague and in the physical workplace. The conduct is also common at work-related social events, conferences and during work travel. Sexual harassment disproportionately impacts younger members of the profession – one in five respondents younger than 35 had been sexually harassed within the past year. Incidents are very rarely reported and, when they are, workplace responses are typically inadequate, with perpetrators infrequently sanctioned. Sexual harassment is having a considerable negative impact on the legal sector, with many sexually harassed respondents considering leaving their workplaces or the profession altogether.
Gender
Workplace sexual harassment has an unequal impact on female members of the legal profession: 37% of female respondents had experienced sexual harassment during their career – see Figure 28. 7% of male respondents had been sexually harassed, as had 43% of non-binary/self-defined individuals (albeit a low sample size limits the reliability of this statistic). On a gender-weighted basis, the survey indicates that sexual harassment impacts 22% – over one in five – members of the profession. Respondents who had not personally experienced such conduct were asked whether they had witnessed sexual harassment in work-related contexts: 23% of female respondents and 26% of male respondents had witnessed sexual harassment. Unlike bullying, there is not a significant gap between experiences of and perceptions of sexual harassment in the legal profession. That male respondents witness more sexual harassment is interesting and in contrast to perceptions of bullying. It may suggest that women have become desensitised to low-severity sexual harassment, or that perpetrators are more likely to sexually harass in the presence of male rather than female bystanders.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 49
CALD Meeting Paper Page 329 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 28: sexual harassment (proportion by gender)
Have you ever been sexually harassed in the workplace? Female Male non-binary/self-defined
Yes: 36.6% No: 63.4% Yes: 7.4% No: 92.6% Yes: 42.9 No: 57.1%
Workplace
Government legal workplaces have the highest average prevalence of sexual harassment on a gender-weighted basis, at 35% of respondents (see Figure 29). Law firms have the lowest rate, at 20%. Other workplace types sit slightly above the overall mean, with judicial workplaces at 23%,93 in-house workplaces at 26% and barristers’ chambers at 28%. These prevalence rankings correlate closely with bullying prevalence by workplace (see Figure 30), suggesting a degree of linkage between these forms of conduct and the factors that may encourage or mitigate them at different workplaces. Notably, male respondents at government legal workplaces were more than twice as likely to have been sexually harassed than the male average.
Figure 29: sexual harassment prevalence by workplace
Have you ever been sexually harassed in the workplace? Yes
Law firm Barristers’ chambers Corporation/organisation
Male: Female: Male: Female: Male: Female: 6.7% 32.7% 8% 47.3% 9% 42%
Male: Female: Male: Female: 18.2% 52.5% 0% 46.6%
Government Judiciary
93 The low male response rate in this category – not one of the 25 male respondents at judicial workplaces had been sexually harassed – means this data’s statistical rigour is questionable.
50 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 330 CALD Meeting - 4 Oct 2019 Item F01(1)
Figure 30: prevalence rankings by workplace (most to least, gender weighted) Bullying Sexual harassment 1. Government 1. Government 2. Barristers’ chambers 2. Barristers’ chambers 3. Judicial 3. In-house 4. In-house 4. Judicial 5. Law firms 5. Law firms
Firm size has no evident impact on the prevalence of sexual harassment – see Figure 31. This is puzzling, given the apparent influence of workplace factors on prevalence and given bullying was more prevalent at larger law firms.
Figure 31: sexual harassment prevalence by law firm size*
More than 100: 18.6%
51-100: 22.1%
11-50: 19%
5-10: 16.6%
Less than 5: 20.5%
*Gender-weighted
In Their Own Words
After I was sexually assaulted, I feared that his rank and reputation made me vulnerable. My disgust at remembering this horrible event prevented me from reporting it to the bar association “or police. He frequently harassed junior female colleagues. I should have stopped him. Female, in-house, South Korea
Region
As with bullying, legal professionals in Oceania experience the highest prevalence of sexual harassment, at 30% on a gender-weighted basis. Africa (28%) and North America (28%) were both above the global mean of 22%, while Latin America (21%), Asia (20%), Scandinavia (20%) and Western Europe (19%) were all just below average. Eastern Europe had the lowest prevalence, at 13%. Female respondents from Africa had the highest prevalence (48%), just above female respondents from Oceania (47%) – see Figure 32. Among male respondents, those in Oceania and North America experienced the most sexual harassment (12%), while those in Western Europe experienced the least (4%). Consistent with bullying, Africa had the largest gender disparity while Eastern Europe had the smallest gap. The top four regions by sexual harassment prevalence are
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 51
CALD Meeting Paper Page 331 CALD Meeting - 4 Oct 2019 Item F01(1) identical to those by bullying prevalence – see Figure 33. This supports the conclusion that there is a relationship between the two forms of conduct and the factors that contribute to them.
Figure 32: sexual harassment prevalence by region
Have you ever been sexually harassed in the workplace? Yes
Male Female
9.1% Africa 47.7%
6.1% Asia 34.1%
11.8% North America 43.3%
5.9% Latin America 35.8%
6.2% Eastern Europe 18.8%
3.9% Western Europe 33.2%
8.3% Scandinavia 32.2%
12.4% Oceania 46.7%
52 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 332 CALD Meeting - 4 Oct 2019 Item F01(1)
Figure 33: prevalence rankings by region (most to least, gender weighted) Bullying Sexual harassment 1. Oceania 1. Oceania 2. Africa 2. Africa 3. North America 3. North America 4. Latin America 4. Latin America 5. Western Europe 5. Asia 6. Asia 6. Scandinavia 7. Eastern Europe 7. Western Europe 8. Scandinavia 8. Eastern Europe
Age/position
Like bullying, sexual harassment disproportionately impacts younger members of the profession – see Figure 34. This trend is particularly evident among female respondents, while the impact of age on male experiences of sexual harassment is less clear. Experiencing sexual harassment within the past year is most common among female respondents aged 25–29 (29%), decreasing on an almost linear basis to 5% among female respondents aged 55 or above.
Figure 34: recent sexual harassment by age
Sexually harassed within the past year, male (% of total respondents)
Age
Over 60: 0%
55-59: 0%
50-54: 0.5%
44-49: 3.0%
40-44: 1.7%
35-39: 1.8%
30-34: 3.8%
25-29: 3.1%
Younger than 25: 0%
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 53
CALD Meeting Paper Page 333 CALD Meeting - 4 Oct 2019 Item F01(1) Sexually harassed within the past year, female (% of total respondents)
Age
Over 60: 4.1%
55-59: 3.2%
50-54: 5.2%
44-49: 7.8%
40-44: 9.6%
35-39: 14.3%
30-34: 16.1%
25-29: 19.4%
Younger than 25: 16%
The prevalence of sexual harassment is relatively stable across positions within law firms. On a gender-weighted basis, 16% of trainees, 20% of solicitors/associates, 22% of senior associates/senior solicitors and 23% of partners have been sexually harassed – see Figure 35. Notwithstanding some outliers, possibly influenced by low response rates for particular categories, the minor rise in prevalence as seniority increases is likely to be attributable to the longer opportunity to have experienced sexual harassment. This data supports the finding regarding the disproportionate impact on younger respondents – if sexual harassment were evenly spread by age and position (which are strongly correlated), a more linear increase in prevalence would be expected as seniority increases.
54 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 334 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 35: sexual harassment prevalence by law firm position*
Partner: 23.2%
Special counsel/of counsel: 36.9%
Consultant: 18.3%
Senior associate or senior solicitor: 22%
Associate or solicitor: 20.3%
Trainee solicitor or graduate: 15.6%
Clerk, intern or paralegal: 16.2%
Business services or support staff: 11.3%
* Gender-weighted
In Their Own Words
One of the senior partners offered to help me get a training contract, if I went to casinos with him and agreed to ‘get to know him better’. I never reported it because it would have meant exclusion from the“ project. Nothing happens to the partners. Female, law firm
Type
Respondents who had been sexually harassed were asked about the type or types of sexual harassment they had experienced – see Figure 36. Sexist, sexual and sexually suggestive comments were the most commonly experienced forms of sexual harassment, while inappropriate physical contact and sexual propositions were also common; 22% of sexually harassed respondents had been fondled, kissed or groped, while 3% had been sexually assaulted. Sexist comments were far less common among sexually harassed male respondents (31%), while sexually suggestive comments were higher in relative terms (at 55%, this was the most common form of sexual harassment experienced by male respondents, albeit still less prevalent than among female respondents). On average, female targets were harassed in a greater variety of ways – with a ratio of 3.4 sexual harassment types to each sexually harassed female respondent, compared with 2.4 types among sexually harassed male respondents.
Sexist and sexual comments had a higher prevalence in North America, while sexist behaviour in work-related group messaging was 300% more common in Latin America compared with the global average. Otherwise, there were few notable variations by region. Sexist and sexual comments, sexual propositions, seriously inappropriate physical contact and demands for sexual favours in return for work opportunity were all significantly more prevalent in barristers’ chambers.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 55
CALD Meeting Paper Page 335 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 36: sexual harassment prevalence by type
67.9%
Sexist comments, including inappropriate humour or jokes about sex or gender
66.8% Sexual or sexually suggestive comments, remarks or sounds
52.2%
Being looked at in an inappropriate manner, which made you feel uncomfortable
48.6%
Inappropriate physical contact, for example patting, pinching, brushing up against the body and any inappropriate touching or feeling
24.0%
Sexual propositions, invitations or other pressure for sex
21.6%
Seriously inappropriate physical contact, for example, kissing, fondling or groping
13.0%
Receiving sexually explicit content or propositions via email or social media
6.4%
Implicit or explicit demands for sexual favours in exchange for employment or promotion
5.7%
Implicit or explicit demands for sexual favours in exchange for work opportunity (ie, to be involved in a matter)
5.3% Receiving sexually explicit presents, cards or letters
4.4%
Other
4.0%
Being the subject of sexist behaviour on work WhatsApp groups
3.1%
Physical assault or rape
2.7%
Implicit or explicit demands for sexual favours in exchange for a favourable performance appraisal
1.1%
Prefer not to specify
56 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 336 CALD Meeting - 4 Oct 2019 Item F01(1) In Their Own Words
I was advised by my mentors not to become the ‘poster child for sexual assault in the workplace’ as this would seriously handicap my career. “ Female, law firm, Hong Kong
The male bosses take advantage of young, temporary female employees, in need of work, and without professional experience, by demanding sexual favours in exchange for employment. You cannot “report, or they do not renew your position. Female, government, Costa Rica
Frequency and timing
While incidents of sexual harassment are rarely isolated, it is more likely than bullying to occur by way of multiple, unrelated incidents and less likely to be a course of conduct by the same perpetrator. Respondents who had been sexually harassed were asked whether they had been harassed on more than one occasion: 84% said yes (compared with 90% of respondents to the same question for bullying). There were no significant variations by gender, age, region or workplace type, although barristers were more likely to have been sexually harassed more than once. Respondents were then asked about the nature of the multiple incidents – see Figure 37. Whereas more than half of bullied respondents indicated that ongoing bullying formed part of a course of conduct by the same perpetrator, repetitive sexual harassment is relatively more likely to be constituted by isolated incidents by different perpetrators (34% compared with 16% for bullying).
Much sexual harassment at the less severe end of the spectrum (eg, sexual or sexist comments) occurred within the past five years. Unsurprisingly, technology-based sexual harassment is most common in recent years. More serious sexual harassment – inappropriate and seriously inappropriate touching, sexual propositions and sexual assault – was spread relatively evenly over time, however, was less likely to have occurred within the past year. This may indicate a recent decrease in serious sexual harassment, although it might alternatively be that recent targets of serious sexual harassment are unwilling to recall those incidents in a survey. On a positive note, sexual demands in exchange for promotions or positive work appraisals occurred most commonly 10–20 years ago, and are significantly less commonplace today.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 57
CALD Meeting Paper Page 337 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 37: multiple incidents of sexual harassment
Course of conduct (by same perpetrator): 28.9%
Both: 36.8%
Isolated incidents (by different perpetrators): 34.3%
In Their Own Words
Sexist comments are endemic. “ Female, law firm, Brazil
A client said I must see the view he had from his hotel room and after initially saying no I eventually popped into his room ‘just for a moment’. He then lunged. I moved away quickly and nothing “terrible happened. I felt like an idiot. I thought his interest in me was professional. I felt horribly uncomfortable the next day in his team. I was worried it had ruined my career. Female, law firm, UK
Of sexual harassment cases, 29% included one or more incidents that had occurred within the year prior to survey completion – see Figure 38. Respondents were able to select more than one option, hence the cumulative percentage exceeds 100%. Male respondents and respondents at judicial workplaces were significantly less likely to have been sexually harassed within the past year, while those at barristers’ chambers were more likely to have been sexually harassed in the same period.
58 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 338 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 38: sexual harassment incidents over time
Within the past month: 9.4% 1-6 months ago: 14.5%
6-12 months ago: 17.2%
1-5 years ago: 44.5% 5-10 years ago: 28.4% 10-20 years ago: 22.3% More than 20 years ago: 8.2% Prefer not to state: 3.1%
Location
Although sexual harassment most commonly takes place in the workplace, relative to bullying, it is significantly less workplace-centric: 75% of respondents who had experienced sexual harassment experienced it in the workplace, with work social events, work travel and conferences the other common sites of sexual harassment – see Figure 39. Respondents were able to select more than one option (for conduct that occurred across multiple locations), hence the cumulative percentage exceeds 100%. Sexual harassment at conferences is more likely among older respondents, possibly reflecting the fact that junior members of the profession are less frequently exposed to these environments. Younger respondents were more likely to have been sexually harassed on social media. Sexual harassment in the physical workplace is more common in Africa and Latin America and relatively less common in Scandinavia, where such incidents are more likely than the global average to occur at work social events.
Location variation by workplace type is largely self-explanatory: respondents at barristers’ chambers were more likely than average to be sexually harassed during proceedings, while those in government were significantly less likely to be sexually harassed at work social events (possibly due to the lesser frequency of such events at government workplaces compared with law firms). Sexual harassment at social events is considerably higher among respondents at mid-sized to large law firms than at small firms. More severe forms of sexual harassment (eg, seriously inappropriate physical contact) were more likely to occur outside the office.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 59
CALD Meeting Paper Page 339 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 39: location of sexual harassment
75%
Workplace 49.6%
Work social event 18.7%
Work travel 15.6%
Conference 15%
Non-work social event 10.2%
Office of a third party (judge, barrister, consultant etc) 9.6%
Client office 8.9%
During a proceeding (eg, court, arbitration) 4%
Social media 2.2%
Other
Perpetrator
More than half of reported incidents of sexual harassment in the survey were perpetrated by non- supervisor senior colleagues – see Figure 40. Supervisors/line managers were the second most common category of perpetrator, followed by colleagues of a similar level of seniority. These findings suggest that, unlike bullying, hierarchy and power imbalance play less of a role in sexual harassment incidents; relative to bullying, supervisors were significantly less likely, while equal and junior colleagues were significantly more likely, to be the perpetrator of sexual harassment. Clients and other third parties were more likely, in relative terms, to sexually harass than bully.
Among younger respondents, sexual harassment was more likely to be perpetrated by senior colleagues and less likely to be perpetrated by someone of equal seniority; whereas these trends invert among older respondents. Sexual harassment by clients was relatively more common in North America, while a third party (barrister, judge, other party’s solicitor, etc) was relatively more likely to be the perpetrator in Oceania. Among law firms, sexual harassment by supervisors/line managers is significantly more common at smaller firms, while the prevalence of sexual harassment by non-supervisor senior colleagues increases with firm size. Unsurprisingly, supervisors/line managers were more likely to make implicit or explicit demands for sexual favours in exchange for work opportunities, reflecting the power imbalance. Sexual assault/rape was most commonly perpetrated by a third party.
60 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 340 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 40: perpetrator of sexual harassment
54.1%
Someone more senior than you (other than your line manager/supervisor)
36.6%
Your line manager or supervisor
27.8%
Someone of equal seniority
20.7%
A third party (consultant, judge, barrister, a solicitor from another firm)
20.6%
A client
10.6%
Someone junior to you
6.9%
Someone in a support function
2.3%
Other
In Their Own Words
I often received comments from my supervisor that she wanted to ‘fuck me’. Any conversation would seem to have a sexual reference in it. “ Male, barristers’ chambers, UK
The comments were about me being ‘sexy’ and the partner saying stuff like ‘I always look at you’. I find these comments highly inappropriate coming from a partner to a young associate. If another “associate said the same thing it would be a lot easier to tell him/her off. Female, law firm, Sweden
My boss resolved it by refusing all work from the same client, which was a wonderful solution and I felt protected and heard, but at another workplace the perpetrator was a very influential person who “would have had me fired. It contributed to me resigning not too long thereafter. Female, judiciary, Namibia
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 61
CALD Meeting Paper Page 341 CALD Meeting - 4 Oct 2019 Item F01(1) Reporting
Sexual harassment is chronically underreported. In three-quarters of cases arising in the survey, the target did not report the incident – see Figure 41. Sexual harassment is reported even less often than bullying – in just 21% of cases, harassment was reported always or sometimes (when there were multiple incidents of the same type of conduct), compared with almost 40% for bullying. Male respondents were significantly less likely to report sexual harassment. There is remarkably little variation in reporting rates by age, region or workplace, suggesting that underreporting of sexual harassment is a profession-wide – and possibly societal-wide – problem. Reporting rates are highest at small firms (fewer than five partners) and large firms (more than 100 partners), with a dip among mid-sized firms.
Figure 41: reporting of sexual harassment
Prefer not to say: Yes – on all occasions: 3.7% 7.3%
Sometimes: 13.6%
Never: 75.4%
When respondents do report, they overwhelmingly report via internal workplace channels: see Figure 42. Reporting channel usage for sexual harassment is similar to bullying, although bullied respondents who report are even more likely to do so internally. Internal reporting of sexual harassment is more common among male respondents and among respondents at government workplaces, and less common at barristers’ chambers and in the judiciary. Notably, the use of external reporting channels did not increase as the severity of the sexual harassment increased. There was little difference in reporting channel usage between sexual comments and seriously inappropriate physical conduct, for example, albeit police involvement was more common in instances of sexual assault.
62 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 342 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 42: reporting channels
Professional body regulator (eg, law society, The police: Public regulator: bar association etc): 2.3% 1.8% 3.9%
Other: 16%
Internal workplace channels: 83%
In Their Own Words
I didn’t report because who believes that a man says no to sex? “ Male, law firm, Sweden
Respondents who had been sexually harassed but did not report the incident were asked what factors contributed to them not reporting. The profile or status of the perpetrator was the most common reason, followed by concerns about repercussions – see Figure 43. These findings largely mirror the reasons inhibiting the reporting of bullying. Male respondents were significantly less likely to be deterred by the profile or status of the perpetrator, and significantly more likely to have not recognised the incident as sexual harassment at the time. Fear about the profile or status of the perpetrator decreases with age, while the perceived risk of repercussions was greater in judicial workplaces and less significant among in-house respondents.
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CALD Meeting Paper Page 343 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 43: reasons for non-reporting of sexual harassment
50.3% Profile/status of the perpetrator (eg, senior member of the workplace) 48.7% Fear of repercussions for self 42.1% Incident endemic to the workplace / perceived as acceptable 33.3% Lack of confidence in protocols / reporting procedure 23.9% Fear of not being believed 23.6% Did not recognise as bullying / harassment until time had passed 22.9% Lack of evidence 17.2% Unaware of the correct protocols / reporting procedure 14.5% Fear of repercussions for others in the workplace 14.4% Did not wish to revisit the incident (eg, tribunals etc) 4.8% Reported previously and no / insufficient action taken as a result
Among the qualitative data, there were numerous comments that indicated concern for the proportionality of a perpetrator’s punishment. A number of respondents suggested that, for conduct of a low or medium level of severity, existing procedures felt disproportionate. This is troubling. If members of the profession feel that existing reporting channels are only appropriate in cases of serious sexual harassment, and there is an absence of alternative avenues, less severe forms of sexual harassment will continue to go unchecked.
64 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 344 CALD Meeting - 4 Oct 2019 Item F01(1) In Their Own Words
A fellow trainee solicitor groped me during a social event. He was drunk and had, up until that point, been someone I considered a friend. I thought about reporting him, but realised that there was a “serious chance he would never qualify as a solicitor if I did. I told him that if I ever heard of or witnessed any inappropriate behaviour on his part, I would go to HR. I am still not entirely sure that I did the right thing, but I knew how hard everyone had worked to get to the point we were at. I was not prepared to ruin his future over this. Female, law firm, UK
You missed an option: I didn’t want to report the behaviour. Why would I want to ruin [the perpetrator’s] career and personal life over such a transgression? Are the consequences of reporting “it proportionate to the infraction? I would never report sexual harassment or bullying unless it was extreme. The offences are too small to report but nonetheless very invasive and keep on cumulating. I desire to be respected for my intellect; not how my body looks in my dress. Female, law firm, Curaçao
Workplace response
Respondents who had reported an incident of sexual harassment were asked to assess their workplace’s response. One quarter of respondents considered the response sufficient or better, while two-thirds of respondents indicated the workplace’s response was insufficient or negligible – see Figure 44. In-house workplaces received the worst assessments, with just 13% of respondents at a corporation or organisation indicating the response to a reported incidence was sufficient or better. Otherwise there were no significant variations by gender, age, region or workplace. One possible positive: legal workplaces respond better to sexual harassment reports than they do bullying. Respondents who had been sexually harassed were five percentage points more likely to assess their workplace’s response as sufficient or above, compared with bullying.
Figure 44: workplace response
Good: Insufficient: Negligible: Unsure: 6.7% 32% 35.3% 3%
Excellent: Sufficient: Inconsistent (where you have 3.6% 14.8% reported on multiple occasions): 4.7%
In three-quarters of sexual harassment cases, the perpetrator was not sanctioned – see Figure 45. There were no statistically significant variations by gender, age, regional or workplace. Sexual harassers were three percentage points more likely to be sanctioned than bullies.
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CALD Meeting Paper Page 345 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 45: sanctioning harassers
Sometimes (where you have Unaware: 11.1% reported on Yes: 9.5% multiple occasions): 5.4%
No: 74%
Respondents were asked whether their workplace’s intervention had resolved, mitigated or exacerbated the situation. In more than half of cases, the situation was unchanged or deteriorated – see Figure 45A. However, intervention in cases of sexual harassment was viewed more favourably than those in bullying cases: in 21% of sexual harassment cases, the intervention resolved or mitigated the sexual harassment, compared with 15% in bullying cases.
Figure 45A: outcome of workplace intervention
Prefer not to answer: 1.4% Resolve the situation: 6.5% Unsure: 15.0% Mitigate the situation: 14.2%
Exacerbate the situation: Unchanged: 42.2% 12.6%
Mixed (where you have reported on multiple occasions): 8.1%
Impact
Respondents who had been sexually harassed were asked about the impact the conduct had on them – see Figure 46. Over one-third of sexually harassed respondents have left or are considering leaving their workplace. About one in ten have left or are considering leaving the profession entirely. As with similar findings regarding bullying, these statistics are troubling and demonstrate the urgent need for the profession to address sexual harassment. Female respondents were more
66 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 346 CALD Meeting - 4 Oct 2019 Item F01(1) likely to report adverse outcomes following sexual harassment. Age has an inverse effect on the impact of sexual harassment, with those below 35 significantly more likely to have left or have considered leaving the workplace; the bullying data indicated similar trends. Sexually harassed respondents aged between 25 and 29 were approximately 50% more likely than the mean to have left or have considered leaving the profession. Sexual harassment was most likely to have some adverse impact in government legal workplaces and law firms.
Figure 46: impact of sexual harassment*+
Has (or will) this conduct contribute to you:
7.2%
Switching practice areas or departments within your workplace
35.4%
Leaving your workplace
7.5%
Leaving the profession
8.2%
Prefer not to say
55.1%
None of the above
*Gender-weighted
+Respondents could select more than one option
In Their Own Words
The [sexually suggestive comments] have contributed to my depression. They have made me very angry about being helpless to stop the behaviour. It has made me less trusting of colleagues and less “willing to participate in professional and social events. Female, law firm, US
The partners closed ranks around the perpetrator [of seriously inappropriate physical contact]. The firm did nothing to sanction him and later promoted him into a more senior, but marginally less public position.“ They offered me no support or reassurances about my career. I felt I had no choice but to leave. Female, law firm, UK
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 67
CALD Meeting Paper Page 347 CALD Meeting - 4 Oct 2019 Item F01(1) Policies and Training
Policies and training are the most commonly adopted tools to address bullying and sexual harassment in workplaces across the globe.94 The perceived importance of these tools for prevention and intervention have been underscored by surveys of human resource professionals and academic research.95 Are they effective? Some prior research has found a correlation between the adoption of policies and lower levels of inappropriate workplace conduct. James Gruber, for example, determined that ‘[e]mployees in workplaces without policies report the highest levels of harassment’.96 A second study concluded: ‘organisational chaos as reflected in a lack of policies and procedures is another factor increasing the likelihood [of bullying and sexual harassment]’.97 However, further research has highlighted that the process of developing and applying these policies is as significant as their contents.98 Scholars have also suggested that poorly planned or superficial interventions can be harmful to certain employees’ attitudes,99 and that the mere introduction of a policy does not typically influence the willingness of relevant personnel to take action in response to complaints.100
The efficacy of workplace training to address bullying and sexual harassment also remains contested in the academic literature. One study found that anti-bullying training for managers can reduce bullying,101 while another found that the impact of sexual harassment training depends on employee perceptions of an organisation’s commitment to change.102 Other research concluded that there is no evidence that training affects the prevalence of workplace sexual harassment towards women.103
94 A recent study surveyed human resource professionals across 14 regions: Denise Salin and others, ‘Prevention of and Interventions in Workplace Bullying: A Global Study of Human Resource Professionals’ Reflections on Preferred Action’ (2018) International Journal of Human Resource Management (advance) 1. 95 Ibid; Denise Salin, ‘The Prevention of Workplace Bullying as a Question of Resource Management: Measures Adopted and Underlying Organizational Factors’ (2008) 24 Scandinavian Journal of Management 221, 223; Adrienne Hubert, ‘To Prevent and Overcome Undesirable Interaction: A Systematic Approach Model’ in Ståle Einarsen, Helge Hoel and Cary Cooper (eds), Bullying and Emotional Abuse in the Workplace: International Perspectives in Research and Practice (London, Taylor & Francis 2003). 96 Chai Feldblum and Victoria Lipnic, ‘Select Task Force on the Study of Harassment in the Workplace: Report of Co-Chairs’ (Equal Employment Opportunity Commission, June 2016) 38, citing James Gruber, ‘The Impact of Male Work Environments and Organizational Policies on Women’s Experiences of Sexual Harassment’ (1998) 12 Gender & Society 301. 97 See Hoel and Vartia (n 35) 25, citing Steven Lopez, Randy Hodson and Vincent Roscigno, ‘Power, Status and Abuse at Work: General and Sexual Harassment Compared’ (2009) 50 Sociological Quarterly 3, 3–27. 98 Elfi Baillien, Inge Neyens and Hans De Witte,Ongewenst Grensoverschrijdend Gedrag op Het Werk: Op Welke Manier Speelt de Organisatie een Rol? Een Kwantitatieve Studie van Risicofactoren op Niveau van Job, Team en Organisatie (Onderzoeksgroep voor Stress, Gezondheid en Welzijn 2005); Bernardo Moreno-Jiménez and others, ‘Antecedentes Organizacionales del Acoso Psicológico en el Trabajo: Un Estudio Exploratorio’ (2005) 17 Psicothema 627, 627–632; Salin, ‘The Prevention of Workplace Bullying’ (n 95) 223–224. 99 See, eg, Shereen Bingham and Lisa Scherer, ‘The Unexpected Effects of a Sexual Harassment Education Program’ (2001) 37 Journal of Applied Behavioral Science 125, 125–153, cited in Salin, ‘The Prevention of Workplace Bullying’ (n 95) 229. 100 Denise Salin, ‘Organisational Responses to Workplace Harassment: An Exploratory Study’ (2008) 38 Personnel Review 26, 39. 101 Chris Woodrow and David Guest, ‘Leadership and Approaches to the Management of Workplace Bullying’ (2017) 26 European Journal of Work and Organizational Psychology 221, 230. 102 Ho Kwan Cheung and others, ‘Are They True to the Cause? Beliefs About Organizational and Unit Commitment to Sexual Harassment Awareness Training’ (2018) 43 Group and Organization Management 531, 537. 103 Vicki Magley and others, ‘Changing Sexual Harassment Within Organizations via Training Interventions: Suggestions and Empirical Data’ in Ronald Burke and Cary Cooper (eds), The Fulfilling Workplace: The Organization’s Role in Achieving Individual and Organizational Health (London, Routledge 2013) 225, cited in Feldblum and Lipnic (n 96), 48.
68 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 348 CALD Meeting - 4 Oct 2019 Item F01(1) There are also considerable limitations with much of the extant research: ‘because it is difficult for researchers to gain access to workplaces to study… many researchers design experiments using student-volunteer samples or other small volunteer samples’.104 While their findings remain valuable, these shortcomings must be acknowledged.
To consider these issues in the legal workplace context, survey respondents were asked whether their workplaces had policies and/or training directed at bullying and sexual harassment. They were then asked a series of follow-up questions about the frequency of awareness-enhancing efforts, levels of trust in the person(s) responsible for the policies, the adequacy of any training and, overall, how they perceived their workplace’s approach to bullying and sexual harassment. Two caveats should be highlighted. First, due to the need for brevity, these questions grouped bullying and sexual harassment together – which removes possible granularity in approaches adopted by legal workplaces in addressing these distinct, albeit related, forms of conduct. Second, perceptions are an imperfect proxy for reality: it may be that some respondents answered no when in fact their workplace does have relevant policies or offers training. However, this second limitation is mitigated by the broader purpose of this research – put simply, policies and training lose effectiveness if they are invisible in the workplace. If a respondent answered no when in fact the workplace does have a policy or offer training, this suggests the workplace’s implementation needs considerable improvement.
In Their Own Words
There is no point in reporting. Everyone knows what goes on. The harassment occurs out in the open and no one does anything about it. The other partners just stand there and let it happen. If you “say something, you get fired. We have a very small legal market. If they ruin your reputation, no one else will hire you. Female, law firm, Uruguay
104 See Feldblum and Lipnic (n 96) 46.
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CALD Meeting Paper Page 349 CALD Meeting - 4 Oct 2019 Item F01(1) Policies
Prevalence – overview
Approximately one in two survey respondents indicated that their current workplace had a policy or policies in place that addressed bullying and sexual harassment. There was little variation in perception by gender. Across all genders, 31% of respondents’ workplaces did not have policies in place, and 17% of respondents were unsure. Accordingly, given that between 30% and 47% of respondents’ workplaces have not implemented relevant policies, there is considerable scope for legal workplaces to introduce policies to address bullying and sexual harassment. Those that do have policies in place should do more to increase awareness, understanding and adherence.
Perception of policy prevalence increases steadily with age – see Figure 47. Given that seniority in the legal profession has a strong correlation with age, this suggests that awareness of workplace policies is more common among those in senior positions – likely due to increased management responsibilities. This inference is supported by analysis of perception by position: 50% of law firm partners who responded to the survey indicated that their workplace had policies in place, compared with only 42% of associates/solicitors. Given that younger members of the profession are disproportionately affected by bullying and sexual harassment, workplaces need to place more emphasis on raising awareness about policies among that cohort. Unsurprisingly, for those at law firms, awareness of policies increases on an almost linear basis with length of time at the firm; from 45% yes and 30% unaware at less than one year to 58% yes and 6% unaware at more than 15 years.
Figure 47: policy prevalence by age
<25: 41%
25-29: 45.5%
30-34: 48.9%
35-39: 52%
40-44: 55.5%
44-49: 56.8%
50-54: 61%
55-59: 60.5%
60>: 57%
In Their Own Words
After requesting that a sexual harassment policy be implemented, I experienced a huge backlash. There was an immediate increase in sexist comments, jokes and derogatory comments “personally directed at me. Female, advocate, South Africa
70 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 350 CALD Meeting - 4 Oct 2019 Item F01(1) Prevalence – by region
The prevalence of policies varies widely by country. In Canada, for example, 84% of respondents indicated that their workplace had bullying or sexual harassment policies, whereas in Latvia, just 8% of respondents answered affirmatively. Country-specific variation is explored in more detail in the Case Studies section below. Regionally, legal workplaces in North America and Oceania have the highest prevalence – see Figure 48.
Figure 48: policy prevalence by region
Africa: 42.6% North America: 78.8% Latin America: 40.2%
Asia: 48.4%
Eastern Europe: 20%
Western Europe: 49.9%
Oceania: 64.3%
Scandinavia: 49.9%
Prevalence – by workplace type
The prevalence of policies also varies widely by workplace type – see Figure 49. Government legal workplaces have the highest perceived prevalence, while barristers’ chambers have the lowest. There is a strong positive correlation between law firm size and the prevalence of policies – see Figure 50.
Figure 49: policy prevalence by workplace type
Barristers’ Corporation/ Law firm: chambers: organisation: 50.8% 27.3% 70.8%
Government: Judiciary: 74.9% 48.9%
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CALD Meeting Paper Page 351 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 50: policy prevalence by law firm size
Number of partners
Less than 5: 23%
5-10: 33.7%
11-50: 53.6%
51-100: 70.7%
More than 100: 81.3%
Awareness
Only one in five legal workplaces regularly inform staff of their rights and obligations under relevant policies – see Figure 51. Perceptions of the frequency of workplace efforts to draw attention to policies varies by age: 11% of legal professionals aged 25–29 thought their workplace frequently informed them of relevant policies, rising on an almost linear basis to 33% among those aged over 60. There is less variation by workplace, with law firm, corporate, government and judicial workplaces all within a few percentage points of the mean. Barristers’ chambers were the outlier – only 8% of respondents thought their chambers regularly advised them of their rights and obligations in this context.
Figure 51: policy awareness
Does your workplace inform you of your and others’ rights and obligations under such policies?
Unsure: Never: 3.4% 6.1% Frequently: 19.3%
Rarely (eg, at commencement only): 30.4%
Occasionally: 40.6%
72 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 352 CALD Meeting - 4 Oct 2019 Item F01(1) Process awareness
Respondents at workplaces with policies were asked if they knew who in their workplace was responsible for managing complaints made under the policy or policies. A significant majority answered in the affirmative – see Figure 52. There is again an age imbalance: 58% of legal professionals aged 25–29 knew who had responsibility for the policy, increasing steadily to 85% among those aged over 60. Law firm, government and judicial workplaces were around the mean, with in-house workplaces above average (80%) and barristers’ chambers below average (62%). Interestingly, while larger law firms have a higher policy prevalence, there is an inverse relationship between size of firm and the respondent knowing who is responsible for handling complaints – see Figure 53.
Figure 52: policy responsibility
Do you know who is responsible for managing complaints made under the policy or policies?
No: 28.2%
Yes: 71.8%
Figure 53: policy responsibility at law firms
Do you know who is responsible for managing complaints made under the policy or policies? Yes
Number of partners
Less than 5: 85.4%
5-10: 78.4%
11-50: 73.3%
51-100: 67%
More than 100: 64.2%
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CALD Meeting Paper Page 353 CALD Meeting - 4 Oct 2019 Item F01(1) Procedural confidence
Respondents who answered affirmatively were asked whether they had confidence that this person or these people would deal with concerns or complaints in a thorough, confidential and impartial manner. Male respondents were significantly more likely to express confidence, at 79% compared with 57% among female respondents – see Figures 54 and 55. Confidence increases steadily with age: from 53% among the 25–29 age group to 81% among those aged over 60. Confidence is highest in law firms (69%) and lowest in government legal workplaces (41%). In law firms, there is an inverse correlation between firm size and confidence: 84% of respondents at firms with fewer than five partners have confidence in the complaints process, declining steadily to 62% at firms with over 100 partners. This finding and those above pose a challenge for large law firms (and similar workplaces): despite having the highest prevalence of policies, their usage has not improved confidence in the procedural mechanisms for resolving complaints. It might be inferred that familiarity and close personal relationships at smaller firms have a significant positive impact on confidence in procedures and those responsible for them.
Figure 54: male confidence in complaints process
Are you confident that this person/people would deal with concerns or complaints in a thorough, confidential and impartial manner?
Yes: No: 78.7% 5.2%
Partially: Unsure: 11.4% 4.7%
74 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 354 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 55: female confidence in complaints process
Are you confident that this person/people would deal with concerns or complaints in a thorough, confidential and impartial manner?
Yes: No: 56.9% 11.4%
Unsure: Partially: 10.1% 21.6%
Impact on bullying
There is no statistically significant difference in the prevalence of bullying between legal workplaces with and without policies: 48% of respondents at legal workplaces with policies had been bullied, compared with 45% at workplaces without policies and 46% where the respondent was unsure about the existence of policies. Some of this bullying may be historical cases from prior workplaces, such that no inference could be drawn about the effectiveness of policies at present workplaces. However, this lack of effect is replicated in cases of bullying within the past year, where it is highly likely the incident occurred in the shadow of the policy in question. Accordingly, at the global level, workplace policies are not having the desired effect. There is regional variation and several jurisdictions do indicate a significant impact. In the UK, for example, 53% of respondents at legal workplaces with policies had been bullied, compared with 74% at those workplaces without policies.
Despite the absence of a positive macro impact, policies are having some discernible beneficial effects. Respondents at legal workplaces with policies were more likely to report incidents of bullying on some or all occasions (cumulatively 41% compared with 35% at workplaces without policies). The presence of policies also correlates with less likelihood that the perpetrator was the target’s line manager or direct supervisor, a significant increase in the use of internal channels to report and fewer cases where the perpetrator avoided any sanction. Bullied respondents at law firms with policies were almost 10 percentage points less likely to want to leave the firm following an incident than those at firms without policies. However, there were no statistically significant differences in how respondents rated the adequacy of their workplace’s response to a report of bullying between workplaces with and without policies.
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CALD Meeting Paper Page 355 CALD Meeting - 4 Oct 2019 Item F01(1) Impact on sexual harassment
Analysis of the impact of policies on sexual harassment in the legal profession is similarly concerning: 28% of respondents at workplaces with policies had experienced sexual harassment, compared with 26% at workplaces without or where the respondent was unsure of the existence of policies. As with bullying, these trends are not universal and certain jurisdictions indicate different outcomes – in Canada, for example, respondents were 27 percentage points less likely to be sexually harassed if their workplace had policies in place. Globally, respondents at workplaces with policies were significantly less likely to have been sexually harassed within the past year, suggesting recent attention to this issue and a possible renewed emphasis on policies may be having a beneficial impact. The presence of workplace policies also correlates with less likelihood of sexual harassment by a respondent’s line manager or supervisor. However, policies had little positive impact on reporting rates, the likelihood of the perpetrator being sanctioned or the respondent’s assessment of their workplace’s response to an incident. Accordingly, notwithstanding some positive effects, workplace policies are not effectively addressing sexual harassment in the legal profession.
In Their Own Words
My experience is that it does not matter whether there is a policy in place or not. If the individual is high achieving and productive, then management will not sanction or discipline that individual. “ Female, government, Canada
Training
Prevalence – overview
Only one in five legal workplaces conduct training to prevent and address bullying and sexual harassment – see Figure 56. Perception by age mirrored the policy findings: 15% of respondents aged under 25 thought their legal workplace ran training, rising on an almost linear basis to 32% for those over 60. Analogous trends exist on the basis of law firm position and time at firm. There is a significant overlap between the prevalence of policies and training: almost 40% of respondents at workplaces with policies indicated that they had received training, compared with just 3% at workplaces without policies.
76 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 356 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 56: training
Does your workplace conduct training or information sessions realting to bullying and/ or sexual harassment?
Unsure: 14% Yes: 21.9%
No: 64.2%
Prevalence – by region
As with policies, the prevalence of training varies widely by country. In the US, for example, 46% of respondents indicated that their workplace had bullying or sexual harassment training, whereas in Luxembourg just 3% of respondents answered affirmatively. Regionally, legal workplaces in North America and Oceania have the highest prevalence – see Figure 57. Regional trends broadly align with those for policies, albeit Europe has a disproportionately low training usage in light of the moderate policy prevalence in the region.
Figure 57: training prevalence by region
Africa: 9.5%
North America: 44.7%
Latin America: 13.4%
Asia: 24.1%
Western Europe: 19%
Eastern Europe: 6.6%
Scandinavia: 13.5%
Oceania: 34.9%
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CALD Meeting Paper Page 357 CALD Meeting - 4 Oct 2019 Item F01(1) Prevalence – by workplace type
Government and in-house legal workplaces offer training at a significantly higher rate than law firms and judicial workplaces, which are around the mean – see Figure 58. Barristers’ chambers significantly underperform, with just 8% of respondents indicating that their chambers run training. There is a strong positive correlation between law firm size and the use of training – see Figure 59. Indeed, law firms with more than 100 partners have the highest training rate of all workplace types (43%).
Figure 58: training prevalence by workplace type
Barristers’ Corporation/ Law firm: Chambers: Organisation: 20.4% 7.8% 31.5%
Government: Judiciary: 37.8% 23.4%
Figure 59: training prevalence by law firm size
Number of partners
Less than 5: 8.1%
5-10: 10.2%
11-50: 15.5%
51-100: 24.6%
More than 100: 43.3%
In Their Own Words
This is an epidemic in law firms and despite all the training, it just continues to occur. So many people leave because they are made to feel like it is their fault or they just can’t handle the environment, “but it is unprofessional. You should not have to put up with this. Female, law firm, Australia
78 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 358 CALD Meeting - 4 Oct 2019 Item F01(1) Adequacy
Respondents who had received training were asked to assess the adequacy of the training. The majority indicated that their training had been satisfactory, although there was a considerable gender divergence with women far more likely than men to rate their training as inadequate – see Figure 60. Training at law firms is viewed most favourably, with 75% of law firm respondents indicating that their training had been adequate, while training at government legal workplaces performed the worst at 52%.
Figure 60: training adequacy (by gender)
Inconsistent: 10.4% Inconsistent: No: 20.8% 7.7%
Training adequacy Training adequacy (Male) No: (Female) Yes: 14.8% 64.5%
Yes: 81.9%
Training provider
Respondents were also asked who had provided the training – whether colleagues, an external provider or a mix of the two. Over half of respondents indicated that their training had been conducted internally – see Figure 61. In-house and judicial workplaces were more likely to conduct internal training, while government legal workplaces utilise more external training. The utilisation of both internal and external training correlated to the highest perception of the adequacy of the training, at 80% – see Figure 62. The exclusive use of external training had the worst perception of adequacy. This may indicate that existing external training options are insufficiently tailored to the cultural and procedural nuances of individual legal workplaces. This is consistent with 2016 research by the US Equal Employment Opportunity Commission, which found that effective training programmes are those ‘tailored to the specific realities of different workplaces’. The Commission observed: ‘Using examples and scenarios that realistically involve situations from the specific worksite, organization, and/or industry makes the compliance training work much better than if the examples are foreign to the workforce’.105 Interestingly, among law firms, perceptions of the adequacy of internal training were highest at firms with fewer than five partners (86%), supporting the familiarity/interpersonal relationship hypothesis highlighted above.
105 See Feldblum and Lipnic (n 96) v.
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CALD Meeting Paper Page 359 CALD Meeting - 4 Oct 2019 Item F01(1) Figure 61: training provider
Unsure: 9.7% Internal provider: 53%
Both: 25.4%
External provider: 11.8%
Figure 62: training adequacy by provider
Internal provider: 72.8%
External provider: 55.9%
Both: 80.2%
Impact on bullying
As with workplace policies, training has no statistically significant impact on the prevalence of bullying among survey respondents: 46% of respondents at workplaces with training had been bullied, compared with 48% of respondents at workplaces without training. However, training did correlate with a range of improvements. Respondents at workplaces with training were almost ten percentage points less likely to have been bullied within the past year, suggesting the recent introduction of training may be having an effect. The same class of respondents were more likely to report the incident (46% reported sometimes or on all occasions, compared with 36% at workplaces without training) and more likely to use internal channels to do so. They were also more likely to rate their workplace’s response to the report as ‘excellent’ and more likely to indicate that the report resulted in sanctions for the perpetrator. There is significant jurisdictional variation. In the UK, for example, respondents at workplaces without training were 25 percentage points more likely to have been bullied.
80 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 360 CALD Meeting - 4 Oct 2019 Item F01(1) Impact on sexual harassment
The impact of training on sexual harassment follows similar trends. There is only half a percentage point difference in prevalence of sexual harassment at workplaces with and without training, suggesting that, when adopted, training is not significantly reducing incidents of sexual harassment. However, respondents at workplaces with training were significantly less likely to have been sexually harassed within the last year, less likely to have been sexually harassed by their supervisor and more likely to have reported an incident through internal channels. As with the above analysis, there are regional variations – in Canada, for example, respondents at workplaces with training were significantly less likely to have experienced sexual harassment.
In Their Own Words
A number of male colleagues superior to me (including the partner I work for most) openly stare at my legs when I am wearing a skirt. It makes me feel uncomfortable and disrespected in my workplace. “I have never reported this as I do not know how and fear it would not be taken seriously. Female, law firm, Germany
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CALD Meeting Paper Page 361 CALD Meeting - 4 Oct 2019 Item F01(1) Overall assessment of workplace approach
Finally, respondents were asked for an overall assessment of their workplace’s policies, procedures and approach to preventing bullying and sexual harassment and responding to incidents. The results reveal a significant perception variation by gender – see Figure 63: 66% of male respondents thought their workplace’s approach was sufficient or better compared with 45% of female respondents. Male respondents were two-times more likely to rate their workplace’s approach as excellent, at 17%, compared with 8% of female respondents. Perception also varies considerably by age – see Figure 64. These trends were replicated on the basis of law firm position: almost one in two law firm partners considered their firm’s approach to be good or excellent compared with just one in five solicitors/associates. Given bullying and sexual harassment disproportionately affect younger/more junior members of the profession, it might be hypothesised that there is an inverse relationship between direct familiarity with a workplace’s approach (eg, as a result of reporting an incident) and perceptions of that approach. In other words, it is easy to think highly of policies and procedures with which one has no direct contact.
Figure 63: assessment of workplace approach by gender
Unsure: Excellent: Excellent: Unsure: 13.4% 8.1% 16.8% 18.5%
Negligible: Good: 8.6% 17.2%
Male Female Good: Negligible: Insufficient: 25.6% 15.4% 12.3%
Sufficient: 19.5%
Sufficient: Insufficient: 23.3% 21.3%
Figure 64: assessment of workplace approach by age
Rated workplace approach as ‘good’ or ‘excellent’
Over 60: 53.3%
55-59: 42.9%
50-54: 40.1%
45-49: 35.4%
40-44: 31.5%
35-39: 28.7% 30-34: 22.9% 25-29: 20.6% Younger than 25: 26.9%
82 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 362 CALD Meeting - 4 Oct 2019 Item F01(1) Law firms and in-house legal workplaces had the best average ratings, while government and judicial legal workplaces performed poorly – see Figure 65. Law firm size had an inconsistent impact: almost 40% of respondents at firms with fewer than five partners or over 100 partners rated their workplace’s approach as good or excellent. But among mid-sized firms with between 11 and 50 partners, this percentage drops to 24%. It may be that small firms often have strong interpersonal relationships (a theme supported by some of the above findings), and major firms have the specialised resources to address these issues, while mid-sized firms benefit from neither. The presence of workplace policies and training had a significant positive impact. Just one in five respondents at workplaces with relevant policies, and one in seven respondents at workplaces with training, rated their workplaces’ approach as insufficient or negligible. At workplaces without policies or training, these percentages rose to 44% and 41%, respectively. Accordingly, notwithstanding the mixed findings above as to the efficacy of policies and training, both have a beneficial impact on overall perceptions of workplaces’ attempts to prevent and respond to bullying and sexual harassment.
Figure 65: assessment of workplace approach by workplace type
Rated workplace approach as ‘good’ or ‘excellent’
Barristers’ Corporation/ Law firm: chambers: organisation: 33% 24.3% 31.6%
Government: Judiciary: 20.6% 20.5%
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 83
CALD Meeting Paper Page 363 CALD Meeting - 4 Oct 2019 Item F01(1) Improving efficacy
This survey has demonstrated that policies and training to address bullying and sexual harassment are: (1) not sufficiently widespread in the legal profession; and (2) not having the desired positive impact to the extent required. Recent research has suggested several possibilities for addressing the first of these barriers. In certain parts of the US, training is mandatory for employers above a particular size – those with more than 50 managerial employees in California and Connecticut, and just 15 in Maine.106 Additionally, policies and/or training are often a requirement of consent decrees or conciliation agreements negotiated by employers with regulators or plaintiff lawyers.107 In India, employers with more than ten employees are required to establish an Internal Complaints Committee, with at least one external member, to hear sexual harassment complaints.108 The Internal Complaints Committee is also obligated to compile an annual report highlighting the number of complaints heard, the outcome of each complaint and all measures taken in the workplace to address harassment; this must be submitted to the employer and a local government office. At a workplace-wide level, legislatures might consider the efficacy of implementing such measures.
At a sector-specific level, professional regulators might consider whether it is appropriate to require legal workplaces to implement policies. In the UK, the Bar Standards Board requires barristers’ chambers to have a written anti-harassment policy, which must state ‘that harassment will not be tolerated’ and set out procedures for dealing with complaints of harassment.109 A New Zealand Law Society working group recently recommended that a similar obligation be imposed on law firms, with conduct rules further requiring individual lawyers to prevent bullying and sexual harassment.110 The same report recommended that continuing legal education requirements could be used to encourage relevant training, and urged law schools and other providers to include ‘comprehensive training on harassment, bullying and discrimination issues’ in their ethics courses.111
While various ‘carrot and stick’ options are available to increase the prevalence of anti-bullying and sexual harassment policies and procedures,112 improving the efficacy of policies and training once they are implemented is less straightforward. As two experts have quipped, ‘one can have a terrific policy that does not make any difference in the workplace itself’.113 Another commentator,
106 Cal Gov’t Code s 12950.1(a) (2016); Conn Gen Stat s 46a-54-204 (2016); Me Rev Stat 26, s 807(3) (2016). 107 See Feldblum and Lipnic (n 96) 44. 108 These and other requirements are contained within the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (India). This law was a somewhat belated response to the Supreme Court of India’s landmark judgment in Vishaka and others v State of Rajasthan (1997) 6 SCC 241, which required employers to introduce mechanisms to address sexual harassment as a means of enforcing gender equality rights. Gratitude is owed to Seema Salwan for providing a comprehensive summary of these elements of Indian law. 109 Bar Standards Board (UK), Handbook (4th edn, 2019) 68. 110 New Zealand Law Society Working Group, ‘Report of the New Zealand Law Society Working Group: To Enable Better Reporting, Prevention, Detection, and Support in Respect of Sexual Harassment, Bullying, Discrimination and Other Inappropriate Workplace Behaviour within the Legal Profession’ (December 2018) 54–60. 111 Ibid 101. 112 Noting though that, in the memorable words of one attendee at the Thomson Reuters Transforming Women’s Leadership in the Law anniversary event in February 2019, ‘carrots and sticks might be good for donkeys, but they don’t work so well with lawyers’. 113 Charlotte Rayner and Duncan Lewis, ‘Managing Workplace Bullying: The Role of Policies’ in Ståle Einarsen and others (eds) Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice (2nd edn, CRC Press 2011) 327, 327.
84 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 364 CALD Meeting - 4 Oct 2019 Item F01(1) a former American judge, added: ‘training programs can be nothing more than kabuki rituals, in which the trainers intone the right words – the legally relevant words – without affecting behavior in the real world at all’.114
Common criticisms of policies include insufficient communication about their existence, a failure to properly incorporate policies into new staff induction procedures, no policy evaluation and revision protocol, and an absence of clarity regarding the manager responsible for handling complaints.115 Although there is no ‘golden bullet’, and research is ‘enormously challenging’ given the unique nature of each workplace and their policies,116 several steps may help. First, consistent and ongoing communication is essential in maximising the effectiveness of policies.117 The tone must be set from the top by executives and leadership teams, through role-modelling standards of conduct and championing policies and procedures. Intra-profession dialogue and best practice sharing – possibly facilitated by law societies and bar associations – may also be of assistance. Policies and training should also be assessed and revised from time to time: ‘Training is not enough without tests to see if the training is efficacious. The fact that a company has few formal complaints is not the measure of whether there is sexual harassment.’118
In Their Own Words
I did not report the incident for some time because I did not have faith in the firm to address the issue. There was not any transparency about how the incident would be handled and there were always rumours“ that people in a position of power would not be held accountable for their actions. However, once I finally reported the incident, it was dealt with swiftly and my anonymity was protected. Female, law firm, Australia
In the past 15 years, at least in my country, there has been an incredible advance (for the better) regarding workplace sexual harassment. “ Female, law firm, Chile
114 See Gertner (n 18) 94. 115 See Hoel and Vartia (n 35) 51. 116 See Rayner and Lewis (n 113) 328. 117 Ibid 336–337. 118 See Gertner (n 18) 94.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 85
CALD Meeting Paper Page 365 CALD Meeting - 4 Oct 2019 Item F01(1) Case Studies
Because the nature of and response to bullying and sexual harassment are significantly influenced by localised cultural and workplace norms, global and regional data can only tell us so much. To better understand these phenomena, and inform a sophisticated response to eliminate bullying and sexual harassment across the profession, this section analyses nine country-specific case studies. The case study jurisdictions have been chosen to be geographically diverse (drawn from six continents), reflect a range of population sizes (from the US, the third most populous country, to Costa Rica, with under five million people) and include a mix of common and civil law systems.
Figure 66: prevalence of bullying and sexual harassment in case study jurisdictions (gender weighted) Jurisdiction % respondents % respondents bullied sexually harassed Global average 43 22 Costa Rica 65.7 34.8 United States 50.3 32.6 Australia 61.4 29.6 South Africa 57.5 27.5 United Kingdom 51 21.8 Brazil 45.2 21.4 Sweden 24.1 21 Malaysia 53.6 15.3 Russian Federation 27.8 11.5
Australia
Workplace bullying and sexual harassment are currently prominent topics in Australian society. In June 2018, the Australian Human Rights Commission commenced a national inquiry into sexual harassment in the workplace.119 There have been several high-profile cases of sexual harassment in the domestic legal profession, including the termination in March 2018 of one senior partner at a major firm for alleged misconduct.120 The Australian legal profession has also begun to recognise the prevalence of bullying in legal workplaces. In 2018, the Victorian Bar Association released a report detailing high levels of bullying by judicial officers in court, while a 2014 study prompted
119 Australian Human Rights Commission, National Inquiry into Sexual Harassment in Australian Workplaces (12 September 2018) www.humanrights.gov.au/our-work/sex-discrimination/projects/national-inquiry-sexual-harassment-australian-workplaces accessed 5 April 2019; Law Council of Australia, Submission to Australian Human Rights Commission (n 26). 120 Edmund Tadros, ‘Herbert Smith Freehills to dismiss senior partner over sexual harassment claims’, Australian Financial Review (Sydney, 16 March 2018) www.afr.com/business/accounting/herbert-smith-freehills-to-dismiss-senior-partner- over-sexual-harassment-claims-20180315-h0xiwy accessed 5 April 2019.
86 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 366 CALD Meeting - 4 Oct 2019 Item F01(1) discussion of whether lawyers are among Australia’s worst bullies.121 Sexual harassment is prohibited in Australian workplaces via the Sex Discrimination Act 1984, which also provides vicarious liability for employers.122 Australia is unusual in additionally providing specific legal remedies for bullying, with the Fair Work Commission (an employment tribunal) possessing an anti-bullying jurisdiction.123
Almost one-seventh of respondents to the survey were from Australia, the highest response rate by country. 58% of Australian respondents worked at law firms, with 13% from government, 12% from the bar, 9% in-house and a small percentage from the judiciary. Bullying and sexual harassment are rife in Australian legal workplaces: 73% of Australian female respondents and 50% of Australian male respondents had been bullied in connection with their employment. These rates are significantly higher than global averages, in which women and men are bullied at rates of 55% and 30%, respectively. Australian legal professionals also report a higher rate of sexual harassment than the global average: 47% of female respondents indicated they had been sexually harassed (compared with 37% globally) and 13% of male respondents (7% globally).
In Their Own Words
[The perpetrator] was allowed the opportunity to resign. He has gone on to a successful career at another firm whilst I am left with dealing with a lack of self-worth every day. “ Female, law firm, Australia
Policies targeted at bullying and sexual harassment are more widely used in Australian legal workplaces than globally, with 66% of Australian respondents reporting that their workplace has relevant policies compared with an international mean of 53%. On the other hand, only 58% of Australian respondents indicated confidence in those responsible for handling complaints under such policies (65% globally). Australian legal workplaces are ahead of the international average in utilising anti-bullying and sexual harassment training (37% of Australian respondents’ workplaces, compared with 22% globally). Australian legal professionals at workplaces with training are less likely to have experienced bullying, albeit no less likely to have been sexually harassed. However, respondents at workplaces with training in place are more likely to have reported incidents of bullying, and more likely to have used internal workplace channels to do so.
121 Freya Michie, ‘Almost Two Thirds of Victoria’s Barristers Say They’re Bullied in the Courtroom’, ABC News (Sydney, 18 October 2018) www.abc.net.au/news/2018-10-18/barristers-complain-of-bullying-judges-and-magistrates/10393470 accessed 5 April 2019; Sophie Schroder, ‘Lawyers Some of Australia’s Worst Bullies?’, Australasian Lawyer (Sydney, 8 October 2014) www.australasianlawyer.com.au/news/lawyers-some-of-australias-worst-bullies-192671.aspx accessed 5 April 2019. See also Grace Ormsby, ‘“Concerning” Workplace Data Spurs SA Working Group’, Lawyers Weekly (Sydney, 24 October 2018) www.lawyersweekly.com.au/biglaw/24307-concerning-workplace-data-spurs-sa-working-group accessed 5 April 2019; ‘Bullying “Pandemic” in Law Firms’, Lawyers Weekly (Sydney, 5 March 2013) www.lawyersweekly.com.au/ news/12295-bullying-pandemic-in-law-firms accessed 5 April 2019. 122 Sex Discrimination Act 1984 (Australia) div 3; Australian Human Rights Commission, ‘Sexual Harassment’ at www.humanrights.gov.au/quick-guide/12096 accessed 5 April 2019. See generally Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press 1990). 123 Fair Work Act 2009 (Australia) pt 6-4B; Law Council of Australia, ‘Bullying and Harassment in the Workplace’ at www. lawcouncil.asn.au/policy-agenda/advancing-the-profession/equal-opportunities-in-the-law/bullying-and-harassment-in- the-workplace accessed 5 April 2019.
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CALD Meeting Paper Page 367 CALD Meeting - 4 Oct 2019 Item F01(1) In Their Own Words
Even if a company says all the right things, it’s very easy to be branded someone who is a ‘troublemaker’, especially if the perpetrator has a record of long service at the firm or is a senior member of“ staff. Male, in-house, Australia
Brazil
Brazilian workplaces are known for being informal and social. As researcher Ana Bon has observed, ‘greater closeness [in the workplace is] a characteristic of our culture, our people’.124 However, in recent years, Brazilian society has increasingly engaged with questions about appropriate office behaviour. Some have argued that change is necessary to eradicate sexual harassment and bullying in Brazilian workplaces.125 Others fear that anti-harassment movements will stifle Brazilian culture, and have accused these movements of imposing new standards that undermine ‘normal interactions [such as]… hugging, and kissing’.126 From a legislative perspective, sexual harassment is a criminal offence in Brazil in cases where the perpetrator ‘obtain[s] sexual advantage or favour using the authority inherent in [their] position’.127 There are no specific protections against sexual harassment or bullying under Brazilian employment laws.128 However, labour laws regulating discrimination in the workplace offer some protection to employees, and employers can be liable for damages in some cases.129
A total of 129 survey responses were received from Brazilian legal professionals: 74% were female and 26% were male. Most worked in law firms. Brazilian female respondents were three percentage points more likely to have been bullied than the global average of 55%. Brazilian male respondents were also slightly more likely to have been bullied. Rates of sexual harassment in Brazil were similar to global levels. Interestingly, Brazilian respondents were 14 percentage points more likely to have been sexually harassed by a client than the global average.
124 Stephanie Nolen, ‘Brazilians Are Pushing Back Against Sexual Harassment – But an Office Culture Littered With “Kisses” Makes It Tricky’, The Globe and Mail (Toronto, 27 May 2018) www.theglobeandmail.com/world/article- brazilians-are-pushing-back-against-sexual-harassment-but-an-office accessed 5 April 2019. 125 Ibid. See also David Biller, ‘This Famously Affectionate Country has a Serious #MeToo Problem’, Bloomberg (New York, 8 March 2018) www.bloomberg.com/news/articles/2018-03-08/brazil-has-a-serious-metoo-problem accessed 5 April 2019. 126 See Nolen (n 124) citing a cover story in Veja magazine. 127 Mishell Parreno Taylor, ‘A Look at the #MeToo Movement’s Impact in the US, Brazil and the UK’, TLNT (New York, 8 August 2018) www.tlnt.com/a-look-at-the-metoo-movements-impact-in-the-us-brazil-and-the-uk accessed 5 April 2019 citing The Penal Code 1940 (Brazil) Art 216-A; Biller (n 125). 128 Maria Fernanda de Medeiros Redi and others, ‘Employment and Employee Benefits in Brazil: Overview’ (1 December 2018) Thomson Reuters Practical Law at https://uk.practicallaw.thomsonreuters.com/1-503-5032 accessed 5 April 2019; Alvaro Gonzalez-Schiaffino, Jorge De Presno Arizpe, José Antonio Valdez, Eduardo Viñales, Enrique Munita and José Carlos Wahle, Legal Obligations Surrounding Sexual Harassment in the Workplace Across Latin America (2017) Ius Laboris at https://theword.iuslaboris.com/hrlaw/insights/legal-obligations-surrounding-sexual-harassment-in-the-workplace-across- latin-america accessed 5 April 2019. 129 Ibid.
88 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 368 CALD Meeting - 4 Oct 2019 Item F01(1) In Their Own Words
Like many, I blamed myself for a long time after the incident, trying to figure out how I had allowed this to happen. “ Female, judiciary, Brazil
Policies were significantly less common in Brazil than globally, with only 35% of Brazilian respondents reporting that their workplace has bullying/sexual harassment policies. There was no statistically significant difference between rates of bullying or sexual harassment in workplaces with and without policies. Brazilian workplaces were also slightly less likely to conduct training than global averages (18% compared with 22%). Encouragingly, 74% of respondents at workplaces with training considered this training to be adequate. Respondents at workplaces with training were less likely to be bullied or sexually harassed than those at workplaces without training. Overall, over half of Brazilian respondents considered their workplace’s bullying/sexual harassment prevention initiatives to be insufficient or negligible.
Costa Rica
Workplace bullying and sexual harassment are gaining increasing public attention in Costa Rica. In recent years, harassment complaints have been levelled against several high-profile Costa Rican political figures.130 In 2012, for example, Judge Priscila Quirós accused a fellow judge, Oscar González, of sexual harassment and rape.131 The government dismissed González in 2014 in response to these allegations, after which he was unsuccessfully prosecuted.132 Legislatively, workplace sexual harassment is regulated under the Law against Sexual Harassment in Employment and Teaching.133
130 Cindy Regidor, ‘“#MeToo” en Costa Rica: Tres Mujeres Denuncian Por Abuso al Expresidente y Nobel de Paz Óscar Arias’, France24 (Paris, 6 February 2019) www.france24.com/es/20190206-metoo-costa-rica-violacion-oscar-arias accessed 5 April 2019. See, most recently, complaints against former Costa Rican president and Nobel Peace Prize winner Óscar Arias. 131 Marcel Evans, ‘Judge Accuses Another of Sexual Workplace Harassment in Costa Rica’, The Costa Rica Star (San Jose, 27 October 2012) https://news.co.cr/judge-accuses-another-of-sexual-workplace-harassment-in-costa-rica/17080 accessed 5 April 2019; Carlos Arguedas, ‘Tribunal Absuelve de Violación al Exmagistrado Óscar González Por Considerar Que Hay Dudas’, La Nación (Buenos Aires, 18 December 2017) www.nacion.com/sucesos/judiciales/tribunal-absuelve-al- exmagistrado-oscar-gonzalez/R44TM6QNPNFINEFBCUYVDHOWEY/story accessed 5 April 2019. 132 L Arias, ‘Costa Rican Lawmakers Remove Supreme Court Justice Accused of Rape’, The Tico Times (San José, 28 July 2014) www.ticotimes.net/2014/07/28/costa-rican-lawmakers-unanimously-remove-supreme-court-justice-accused-of-rape accessed 5 April 2019. 133 Ley No 7476 Ley Contra el Hostigamiento Sexual en el empleo y la docencia (Costa Rica). See also Carla Sánchez, ‘Acoso Sexual y Acoso Laboral’, La República (Lima, 11 September 2018) www.larepublica.net/noticia/acoso-sexual-y- acoso-laboral accessed 5 April 2019; UN Women, From Commitment to Action: Policies to End Violence against Women in Latin America and the Caribbean (UN Development Programme and UN Women, 2017) 19.
Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 89
CALD Meeting Paper Page 369 CALD Meeting - 4 Oct 2019 Item F01(1) Costa Rica does not have targeted legislation regulating workplace bullying.134 There are, however, provisions of the Labor Code that are capable of capturing this conduct.135
A total of 165 legal professionals from Costa Rica completed the survey. The majority of respondents were female (65%) and most were employed by the government or law firms. Alarmingly, on a gender-weighted basis, almost two-thirds of Costa Rican respondents had been bullied (66%); more than 20 percentage points higher than the global average. Female respondents were 11 percentage points more likely to have been bullied than their male colleagues. Rates of sexual harassment were also significantly higher than the global average – 52% of female respondents and 17% of male respondents reported being sexually harassed in connection with their employment.
In Their Own Words
Even when the other partners didn’t agree with [the bully’s] behaviour they took no action, always saying ‘he’s also a partner and if it bothers you so much it would be better for you to look for “other work’. Female, law firm, Costa Rica
Policies addressing bullying and sexual harassment are more prevalent in Costa Rica than globally. However, only half of Costa Rican respondents expressed confidence in those responsible for handling complaints under these policies (51%). Costa Rican respondents in workplaces with policies were no more likely to report bullying and sexual harassment than those in workplaces without policies. Training is slightly less common in Costa Rica than globally. Overall, Costa Rican respondents tended to perceive their workplace’s anti-bullying/sexual harassment initiatives as insufficient or negligible. Only 5% rated their workplace’s approach as excellent.
134 See Sánchez (n 133); Human Factor, ‘¿Por qué es Importante Conocer Sobre el Acoso Laboral?’, La República (Lima, 29 October 2018) www.larepublica.net/noticia/por-que-es-importante-conocer-sobre-el-acoso-laboral accessed 5 April 2019; Elizarda Vargas Morúa, ‘Acoso Laboral en Costa Rica’ (2011) 2(1) Revista Nacional de Administración 75–90. See also María Ascensión Morales Ramírez, ‘Aproximación al Acoso Laboral Desde la Legislación Comparada’ (2016) 49 Mexican Bulletin of Comparative Law 71, 93–94. 135 See Sánchez (n 133); Morúa (n 134) 75–90; Luis Ramírez Salazar, ‘Denuncias de Acoso en el Trabajo Pueden Llegar a Tramitarse Como Discriminación Con Reforma Procesal’, AmeliaRueda.com (San José, 12 July 2017) www.ameliarueda. com/nota/acoso-laboral-podria-tramitarse-discriminacion-reforma-procesal-labora accessed 5 April 2019.
90 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 370 CALD Meeting - 4 Oct 2019 Item F01(1) Malaysia
Sexual harassment is regulated in Malaysia via the Employment Act.136 Under this legislation, an employer’s failure to act upon a sexual harassment complaint promptly is an offence punishable by a fine.137 The Federal Court has recently recognised a tort of sexual harassment.138 However, some commentators believe that Malaysian sexual harassment laws do not go far enough. The president of the Association of Women Lawyers, for example, stated in 2018 that ‘there is a real need for both legal reform and cultural change, to ensure sexual harassment is properly addressed [in Malaysia]’.139 Malaysian labour laws do not afford distinct protection to targets of workplace bullying, although they do require employers to ensure ‘the safety, health and welfare at work’ of their employees.140 Targets of bullying may also be able to bring a claim for constructive dismissal in certain circumstances.141
Eighty-seven Malaysian legal professionals responded to the survey: 81% of respondents were female. The vast majority worked in law firms. The results indicate that bullying and harassment are significant, ongoing problems in Malaysian legal workplaces: 57% of female respondents and 50% of male respondents had been bullied during their legal careers (higher than the global averages). 96% of targets had been bullied more than once and 61% had been bullied in the last year. Sexual harassment was less common than globally – 24% of Malaysian female respondents and 6% of Malaysian male respondents had been sexually harassed.
In Their Own Words
My colleagues were threatened with words synonymous to ‘I pay you, so I own you’. “ Female, law firm, Malaysia
Only 17% of respondents indicated that their workplace utilised policies to address bullying and sexual harassment, significantly below the global average. However, those employed in workplaces with policies expressed a high degree of confidence in them. Responses also indicated that policies are having a positive impact in Malaysia – respondents at workplaces with policies were ten percentage points less likely to be bullied and eight percentage points less likely to be sexually harassed, than those at workplaces without policies. Training programmes were even less common than policies (7%). Overall, Malaysia respondents
136 Employment Act 1955 (Malaysia) ss 2, 81F. 137 Ibid s 81F; Datuk Seri Ashgar Ali Ali Mohamed, ‘Legal Aspect of Sexual Harassment’, New Straits Times (Kuala Lumpur, 6 January 2018) www.nst.com.my/opinion/letters/2018/01/322115/legal-aspect-sexual-harassment accessed 5 April 2019. 138 See Mohamed (n 137); National Human Resource Centre, ‘Conceptualising Tort of Sexual Harassment in the Workplace’ at www.nhrc.com.my/rss/-/asset_publisher/hCox5XdI5nGy/blog/id/3563985 accessed 5 April 2019. 139 Victoria Brown, ‘Groups Call for Sexual Harassment Act’, The Star (Petaling Jaya, 27 January 2018) www.thestar.com. my/news/nation/2018/01/27/groups-call-for-sexual-harassment-act-there-is-a-real-need-for-legal-reform-and-change accessed 5 April 2019. 140 Muzaffar Syah Mallow, ‘Workplace Bullying: Say No to Job Yobs’, New Straits Times (Kuala Lumpur, 12 August 2014) www.nst.com.my/news/2015/09/workplace-bullying-say-no-job-yobs accessed 5 April 2019. 141 Ibid; Azizi Ahmad, ‘Membuli di Tempat Kerja’, FMT News (online), (Petaling Jaya, 12 April 2016) www.freemalaysiatoday. com/category/opinion/2016/04/12/membuli-di-tempat-kerja accessed 5 April 2019; ‘Saya Dibuli di Tempat Kerja’, MyMetro (Kuala Lumpur, 5 May 2016) www.hmetro.com.my/node/135636 accessed 5 April 2019.
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CALD Meeting Paper Page 371 CALD Meeting - 4 Oct 2019 Item F01(1) reported a low degree of satisfaction with their workplace’s approach to preventing bullying and harassment – only 13% rated their workplace’s approach as good or excellent, compared with 31% globally.
Russia
Over the past decade, there has been increasing interest in sexual harassment and bullying in Russian workplaces, and a number of studies have explored Russian perspectives on these issues.142 One article found that many Russians do not believe that harassment and bullying are issues worthy of attention, and that approximately a quarter of respondents blamed targets for incidents of harassment, rather than perpetrators.143 This is consistent with other research, which found that there is widespread belief that targets provoke harassers and that ‘harassment and even violence is either a logical outcome or a fair punishment for this [provocation]’.144 Legislatively, there are no specific laws regulating either workplace bullying or sexual harassment in Russia.145 Criminal, anti-discrimination and employment laws do offer some protection to targets in certain circumstances. Nonetheless, Russia has been described as ‘lack[ing] efficient legal machinery and effective application [to combat workplace bullying and harassment]’.146
A total of 120 Russian legal professionals completed the survey: 72% of respondents were female, 26% were male and 2% were non-binary or preferred not to specify. 40% of Russian female respondents and 16% of Russian male respondents had experienced bullying. These rates are significantly lower than corresponding global averages. Rates of sexual harassment were also lower than the global average – 20% of Russian women reported being sexually harassed, and 3% of Russian men. It could be that there is relatively little bullying and sexual harassment in Russian legal workplaces. However, in light of the aforementioned research and qualitative survey responses, it may instead be that Russian respondents define these terms differently to respondents in other jurisdictions – giving rise to the perception paradox articulated in the Methodology section. Policies addressing bullying and sexual harassment are significantly less prevalent in Russia (18% of Russian workplaces, 53% globally). Law firms have the highest utilisation of policies at 37%. Just 6% of Russia-based legal professionals have undergone training to address bullying and sexual harassment.
In Their Own Words
I have not seen anything even close to bullying or sexual harassment in my country in the legal industry or business. “ Male, law firm, Russia
142 See Daria Chernyaeva, ‘Legal Framework for Workplace Mobbing and Harassment Prevention in Russia: Problems and Prospects’ (2013) 2(2) E-Journal of International and Comparative Labour Studies 1, 2. 143 Ibid 2. 144 Ibid. 145 Ibid 6–17. See also Oxana Pushkina, ‘Harassment of Women in Russia Has to End (Op-ed)’, The Moscow Times, (Moscow, 4 April 2018) www.themoscowtimes.com/2018/04/04/harassment-of-women-in-russia-has-to-end-op-ed-a60976 accessed 5 April 2019. 146 See Chernyaeva (n 142) 17. See also Deborah Erdos Knapp and others, ‘Russian Workers’ Experiences With and Perceptions of Sexual Harassment Severity’ (2017) International Journal of Human Resource Management 1, 3: ‘Because Russia lacks a governing body… to codify those behaviors that rise to the level of actionable [sexual harassment] and suffers from a paucity of developed case law, Russian women are particularly vulnerable to all forms of workplace [sexual harassment]’.
92 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 372 CALD Meeting - 4 Oct 2019 Item F01(1) South Africa
The composition of the South African legal profession has changed in recent decades. During the apartheid era, white men dominated the profession.147 While data released by the Commission for Gender Equality in 2018 demonstrates that progress has been made, the South African profession is a long way from achieving equality. Although white males no longer represent the majority of judges, just 35% of judges are female.148 Women account for only 27% of advocates, and the majority of female advocates are white.149 While most South African law societies report that they have more female than male members, and there is also greater representation of men of colour, white men still outnumber women in certain positions of authority.150 There are a number of protections for targets of sexual harassment in South Africa.151 The Employment Equity Act prohibits unfair discrimination based on certain characteristics, including sex.152 The definition of unfair discrimination includes harassment,153 thereby empowering targets to bring claims against perpetrators and employers.154 Conversely, there is ‘uncertainty [regarding] existing legal remedies to deal with workplace bullying’.155 Some consider harassment law capable of capturing this conduct,156 however, other commentators claim that these provisions are not applicable because bullying ‘is not harassment on a listed ground’.157
In Their Own Words
Most Bars are still male dominated and male controlled. The group retaliation against any women who call for an environment free from harassment is disgusting. It drives women from the Bar. There is “solid wall, not a glass ceiling, and it is constantly reinforced by the men in charge. Female, advocate, South Africa
A total of 126 South African legal professionals completed the survey. Women accounted for the majority of respondents. Bullying is common in South African legal workplaces: 73% of South African female respondents had been bullied and 42% of male respondents. This is an ongoing issue; 55% of targets had been bullied within the past year. Like bullying, sexual harassment is more prevalent in South Africa than
147 Commission for Gender Equality, Discussion Document on Gender Transformation in the Judiciary and the Legal Sector (July 2018) 4. 148 Ibid 11. 149 Ibid 13. 150 Ibid 15, 16. 151 For discussion of sexual harassment protections in South Africa, see Constantine Ntsanyu Nana, ‘Sexual Harassment in the Workplace in South Africa: The Unlimited Vicarious Liability of Employers’ (2008) 52 Journal of African Law 245, 247–8. 152 Employment Equity Act 1998 (South Africa) s 6(1). 153 Ibid s 6(3). 154 Bradley Workman-Davies, ‘#METOOZA – Sexual Harassment in the Workplace in South Africa’, Werksmans Attorneys, (Johannesburg, 6 April 2018); Nana (n 151) 247–248. 155 Shoprite Checkers (Pty) Ltd v Samka and Others [2017] ZALCCT 64 [33] quoting Alan Rycroft, Rochelle Le Roux and Thandi Orleyn, Harassment in the Workplace: Law, Policies and Processes (Lexis Nexis 2010) 62–63. For discussion of workplace bullying regulation in South Africa, see Dina Smit, Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law (LLD Thesis, University of the Free State, 2014) 102–140. 156 See Smit (n 155) 237. 157 See Shoprite Checkers (n 155) quoting Rycroft, Le Roux and Orleyn (n 155).
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CALD Meeting Paper Page 373 CALD Meeting - 4 Oct 2019 Item F01(1) the global average: 43% of women reported being sexually harassed, as did 12% of men. This conduct has a significant negative effect: 25% of sexual harassment targets and 44% of bullying targets indicated that the conduct contributed to them leaving or considering leaving their workplace.
In Their Own Words
My self-esteem has drastically dropped. I didn’t eat for two weeks after one incident. It has occasionally made me think of harming myself. “ Female, law firm, South Africa
The prevalence of policies addressing bullying and sexual harassment in South Africa sits at 48%, below the global average of 53%. Fewer than half of South African respondents expressed confidence in those responsible for handling complaints (42%). The data indicates that policies are having some impact, and rates of bullying and sexual harassment at South African workplaces with policies were lower than those at workplaces without policies. Only 7% of South African legal professionals had undergone relevant training, below the global average. Perceptions of the overall efficacy of workplace approaches to bullying and sexual harassment were poor.
Sweden
Sweden has a reputation for being a progressive and relatively gender-equal country with a high quality of life. In 2017, Sweden ranked above average in all areas of the Organisation for Economic Co-operation and Development’s (OECD’s) quality of life index, including work-life balance and life satisfaction.158 Swedish law regulates both bullying and sexual harassment. Sexual harassment is regulated under the Discrimination Act,159 which imposes obligations on employers to prevent and take action against this conduct.160 In Sweden, it is also misconduct for a lawyer to engage in harassment or discrimination on the basis of certain characteristics.161 Under labour law, employers have a number of obligations regarding the prevention of bullying, including an obligation to ensure supervisors know how to prevent and respond to victimisation.162 This is not to say that bullying and sexual harassment do not occur in Swedish workplaces. In 2017, as part of the #MeToo movement, approximately 6,000 Swedish female lawyers signed a statement advocating for a zero-tolerance policy to sexual harassment and calling for an end
158 Better Life Index, ‘Sweden’ at www.oecdbetterlifeindex.org/countries/sweden accessed 5 April 2019. See also World Economic Forum, ‘The Global Gender Gap Report 2018’ (17 December 2018). 159 Discrimination Act 2008 (Sweden) ch 1 s 4, ch 2 s 3. 160 European Institute for Gender Equality, ‘Sweden – Sexual Harassment’ at https://eige.europa.eu/gender-based- violence/regulatory-and-legal-framework/legal-definitions-in-the-eu/sweden-sexual-harassment accessed 5 April 2019. 161 IBA Human Rights Institute, ‘Stakeholder Submission to the Special Rapporteur on the Independence of Judges and Lawyers on the Role, Composition and Functions of Bar Associations’ (October 2018) 102–103. 162 Organisational and Social Work Environment Provisions (Sweden) s 6; Swedish Work Environment Authority, ‘Bullying’ (13 April 2017) www.av.se/en/health-and-safety/mental-ill-health-stress-threats-and-violence/bullying accessed 5 April 2019.
94 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 374 CALD Meeting - 4 Oct 2019 Item F01(1) to the Swedish legal sector’s ‘culture of silence’.163 This, alongside the below survey data, indicates that Swedish legal workplaces must continue to take action to eradicate bullying and sexual harassment.
A total of 644 Swedish legal professionals completed the survey: 54% of respondents were female, 45% were male and 1% were non-binary or preferred not to specify. The vast majority worked in law firms. Bullying is significantly less common in Sweden than globally – 35% of Swedish female respondents had been bullied and 13% of male respondents. Swedish female respondents were also slightly less likely to be sexually harassed (33%, compared to 37% of female respondents globally). Conversely, Swedish male respondents were slightly more likely to be sexually harassed (9% compared to 7% of male respondents globally). This higher number may reflect the fact that Swedish men are more aware that their experiences amount to sexual harassment, a conclusion supported by qualitative survey data.
In Their Own Words
At an office party a female lawyer was intoxicated and approached me, touching me in a sensual way and suggesting that we go home together. I repeatedly told her ‘no’. She ignored this and put her “hand on my crotch. I would probably never have reflected on the incident as sexual harassment had it not been for women’s testimonies of similar incidents as a result of #MeToo. Male, law firm, Sweden
Half of Swedish respondents indicated that their workplace has policies addressing bullying and sexual harassment, slightly below the global average. Promisingly, 80% of Swedish legal professionals expressed confidence in those responsible for handling complaints. Reflecting global trends, Swedish men expressed a higher degree of confidence in those responsible for handling complaints than Swedish women. Only 15% of Swedish respondents’ workplaces offer training to address sexual harassment/bullying. Respondents in workplaces that provided training were slightly less likely to be bullied or sexually harassed. Perceptions of the efficacy of bullying/sexual harassment programmes were mixed (17% of Swedish respondents rated their workplace’s programme as ‘excellent’, whereas 18% selected ‘insufficient’ or ‘negligible’).
In Their Own Words
As I am now a partner at the law firm, it is my intention to create an environment where this kind of behaviour and language is not acceptable and everyone knows that. We are on the right path, but we “are not there yet. Female, law firm, Sweden
163 ‘6,000 Female Lawyers Are Calling Out Sexual Abuse in the Swedish Legal Industry – and It’s Just the Tip of the Iceberg’, Business Insider Nordic (Stockholm, 16 November 2017) https://nordic.businessinsider.com/6000-swedish-female-lawyers- are-calling-out-sexual-abuse-in-their-industry--and-its-just-the-tip-of-the-iceberg-2017-11 accessed 5 April 2019.
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CALD Meeting Paper Page 375 CALD Meeting - 4 Oct 2019 Item F01(1) United Kingdom
Home to some of the largest international law firms, the UK’s legal market has been at the forefront of debate on inappropriate in the legal profession. In 2018 and early 2019, reports of sexual harassment at major law firms in London appeared regularly in legal news.164 Last year, the number of reports of bullying and harassment to a helpline for UK legal professionals rose considerably.165 Sexual and other forms of harassment are regulated via the Equality Act 2010, which prohibits ‘unwanted conduct… that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for this person’.166 However, the prohibition is only applicable in cases involving a protected characteristic (including gender) or sexual harassment – bullying, without more, is not covered. Employers can be held vicariously liable for workplace harassment, except where they have taken reasonable steps to prevent the conduct.167
A total of 715 legal professionals from the UK responded to the survey, overwhelmingly from within law firms. Levels of bullying are above average, with 62% of female respondents and 41% of male respondents reporting that they had been bullied in connection with their employment (compared with the international averages of 55% and 30% respectively). The frequency of sexual harassment is more closely aligned to the global mean, impacting 38% of female respondents and 6% of male respondents. Targets who report bullying have overwhelmingly negative experience: 82% said their workplace’s response was insufficient or negligible. In 84% of cases, the perpetrator was not sanctioned. Respondents who experienced sexual harassment endured similar workplace indifference: 74% of cases are not reported and, in the cases that are reported, the response was insufficient or negligible 71% of the time.
Legal workplaces in the UK have been early adopters of anti-bullying and sexual harassment policies, with 79% of respondents indicating their workplaces had these policies in place (53% globally). However, consistent with the poor experiences detailed above, confidence in those responsible for the policies is below the international average (60% compared with 65% globally). British legal professionals at workplaces with policies in place experience considerably less bullying. There is also a link between workplaces running training and less bullying and sexual harassment occurring in those workplaces. While training does not appear to increase absolute reporting rates, and perceptions of efficacy are poor (8% said the training was excellent while 33% rated the programme as insufficient or negligible), those who have been trained are more likely to use internal workplace channels to report incidents.
164 See, eg, Abby Young-Powell, ‘“A Frat-Like Mentality”: Is the Legal Workplace Improving For Women?’ The Guardian (London, 14 March 2019) www.theguardian.com/law/2019/mar/14/a-frat-like-mentality-is-the-legal-workplace- improving-for-women accessed 5 April 2019; Jack Hardy, ‘Top Lawyer Brings #MeToo to Britain’s Legal Profession with Stories of Sexual Harassment’, The Telegraph (London, 30 November 2018) www.telegraph.co.uk/news/2018/11/30/ top-lawyer-brings-metoo-britains-legal-profession-stories-sexual accessed 5 April 2019; Gabriella Kane, ‘Clydes Dismisses Partner After “Inappropriate Behaviour” Investigation’, The Lawyer (London, 12 October 2018) www.thelawyer.com/ clydes-dismisses-partner-after-inappropriate-behaviour-investigation accessed 5 April 2019; Alex Taylor, ‘Exclusive: Clifford Chance Launches Second Probe into Partner Sexual Misconduct’, The Lawyer (London, 12 April 2018) www. thelawyer.com/exclusive-clifford-chance-launches-second-probe-into-partner-sexual-misconduct accessed 5 April 2019. 165 Frances Gibb and Jonathan Ames, ‘Law Firm Bullying Culture in the Spotlight’, The Times (London, 24 January 2019) www.thetimes.co.uk/article/law-firm-bullying-culture-in-the-spotlight-xmp8k9kg3 accessed 5 April 2019. 166 Equality Act 2010 (UK) s 26. 167 Ibid s 109; House of Commons Women and Equalities Committee, ‘Sexual Harassment in the Workplace: Government Response to the Committee’s Fifth Report of Session 2017–19’ (5 December 2018) 6.
96 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 376 CALD Meeting - 4 Oct 2019 Item F01(1) In Their Own Words
I was advised by the (female) practice manager that if I showed a sexual interest in my principal, he would be nicer to me. This was after he had thrown a phone at my head. “ Female, law firm, UK
United States
The epicentre of the #MeToo movement, workplace sexual harassment has gained unprecedented public attention in the US since late 2017.168 As awareness of the nature and extent of this issue has grown, the legal profession has begun to grapple with unacceptable workplace behaviour. However, cultural characteristics continue to pose a barrier to preventing bullying and sexual harassment in American legal workplaces. One commentary observed, ‘some law firms and their membership … diminish reports of misconduct, condone a hostile work environment, and penalize those who speak out about these wrongs. In effect, lawyers can become the antithesis of advocates when it comes to supporting and protecting the victims among them’.169
From a legislative perspective, sexual harassment is classified as a type of discrimination and is prohibited under federal law where it results in a hostile or offensive work environment or where it is associated with adverse employment action.170 Several states have also passed legislation addressing this issue.171 Unlike sexual harassment, there are no specific workplace anti-bullying laws at a federal or state level.172 Protections do apply if the conduct amounts to harassment on the basis of a protected characteristic.173 There is also increasing public interest in this issue, and there has been some legislative movement at a state level.174
168 At least 200 prominent men have left their jobs following allegations of sexual harassment: Audrey Carlsen and others, ‘#MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women’, The New York Times (New York, 29 October 2018) www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html accessed 5 April 2019. The percentage of Americans who classified workplace sexual harassment as a serious problem rose more than 15 percentage points in 2017: Caitlin Gibson and Emily Guskin, ‘A Majority of Americans Now Say that Sexual Harassment is a Serious Problem’, The Washington Post (Washington, DC, 17 October 2017) www.washingtonpost.com/lifestyle/style/a-majority-of-americans-now-say-that-sexual- harassment-is-a-serious-problem/2017/10/16/707e6b74-b290-11e7-9e58-e6288544af98_story.html accessed 5 April 2019. 169 The Young Lawyer Editorial Board of The American Lawyer, ‘YL Board: This Is What Sexual Harassment in the Legal Industry Looks Like’, The American Lawyer (New York, 28 February 2018) www.law.com/americanlawyer/2018/02/28/ yl-board-this-is-what-sexual-harassment-in-the-legal-industry-looks-like accessed 5 April 2019. 170 Title VII of the Civil Rights Act of 1964 (US); US Equal Employment Opportunity Commission, ‘Harassment’ at www.eeoc.gov/laws/types/harassment.cfm accessed 5 April 2019; US Equal Employment Opportunity Commission, ‘Sexual Harassment’ at www.eeoc.gov/laws/types/sexual_harassment.cfm accessed 5 April 2019. 171 See, eg, Kathleen Pender, ‘New California Harassment Laws Take Effect Jan. 1’, San Francisco Chronicle (San Francisco, 31 December 2018) www.sfchronicle.com/business/networth/article/New-California-harassment-laws-take-effect- Jan-1-13499089.php accessed 5 April 2019; Texas Workforce Commission, Sex Discrimination https://twc.texas.gov/ jobseekers/sex-discrimination accessed 5 April 2019. 172 Rickey Richardson, ‘Workplace Bullying in the United States: An Analysis of State Court Cases’ (2016) 3 Cogent Business & Management (online) 1, 4. 173 Title VII of the Civil Rights Act of 1964 (US). 174 See Richardson (n 172) 4. For example, 31 legislatures have introduced the Healthy Workplace Bill, which would provide ‘an avenue for legal redress for health harming cruelty at work’: Healthy Workplace Bill, ‘State Activity’ https://healthyworkplacebill.org/states accessed 5 April 2019; Healthy Workplace Bill, ‘Quick Facts About the Healthy Workplace Bill’ at https://healthyworkplacebill.org/bill accessed 5 April 2019.
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CALD Meeting Paper Page 377 CALD Meeting - 4 Oct 2019 Item F01(1) A total of 359 legal professionals from the US responded to the survey. Of these, the majority were female, and worked in law firms. US respondents reported higher rates of both bullying and sexual harassment than the global average: 63% of female respondents and 38% of male respondents reported that they had been bullied. Of those who had been bullied, 89% had been bullied more than once. Female targets were 16 percentage points more likely to have been bullied within the past year. Sexual harassment was also commonly experienced by US legal professionals: 54% of female respondents and 11% of male respondents had been sexually harassed (above global averages). Sexual harassment most commonly occurred at the physical workplace (79%) and at work social events (51%).175
In Their Own Words
One senior partner would assign certain work for certain clients on the basis of looks (‘[client] likes blondes’). This same partner would routinely force you to sit in his office as he regaled you with “stories of the sex acts he had engaged in with various women. Female, law firm, US
Respondents in the US reported higher utilisation of policies than the global average – 71% reported that their workplace had a policy or policies addressing bullying and sexual harassment. Most were aware of who was responsible for handling complaints under the policy (78%) and expressed confidence in those people (63%). Respondents in workplaces with policies were less likely to be bullied or sexually harassed than those at workplaces without policies. Training was also significantly more common in the US than globally – 46% of respondent’s workplaces conducted training (over 20 percentage points higher than the global average); 66% of American respondents viewed their workplace’s training programme as adequate. Respondents at workplaces with training were slightly less likely to have been bullied, but no less likely to have been sexually harassed. Overall, 61% of respondents rated their workplaces’ prevention policy as sufficient or better.
In Their Own Words
He was an elected official and I didn’t think I would be believed. There were witnesses to the [seriously inappropriate physical contact], but I was afraid they would tell people that the act was “consensual. No one stopped his behaviour at the time. Female, government, US
175 Respondents could select more than one location, hence the cumulative total exceeds 100%.
98 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 378 CALD Meeting - 4 Oct 2019 Item F01(1) Recommendations
Informed by the above data, extensive secondary literature and dialogue with stakeholders from different spheres of the profession globally, the IBA Legal Policy & Research Unit (LPRU) has developed the following ten recommendations. We claim no monopoly on wisdom. These recommendations are starting points for ongoing discourse regarding how the legal profession can effectively and proactively address workplace bullying and sexual harassment. The voices of all stakeholders are welcome in this dialogue.
1. Raise awareness
Before a problem can be addressed, it must be known. As American jurist Louis Brandeis famously quipped: ‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best disinfectant; electric light the most efficient policeman.’176 The driving purpose of this research is threefold: to gain an empirical understanding of the nature, prevalence and impact of bullying and sexual harassment; to inform the profession; and to provide a platform for efforts to achieve change. An awareness of this and similar research is essential for leaders of the profession, who are best placed to achieve change; for targets and future targets, to know that they are not alone and to help minimise stigma; and for all of us, to motivate individual and collective efforts to improve legal workplaces.
The profession should ensure that this report and similar research is widely distributed. Law firms and other legal workplaces should consider internal dissemination of this report (or a summary). Bar associations, law societies and legal regulators should consider holding events, possibly for continuing legal education credit, for the discussion of these issues among members. All stakeholders need to be involved in this discourse – as this research has shown, bullying and sexual harassment affect all parts of the profession. From trainees to partners, readers to Queen’s Counsel, junior government legal professionals to Attorney-Generals, entry-level in-house lawyers to general counsel, and judicial associates to Supreme Court judges, every member of the profession has a role in eliminating bullying and sexual harassment. Beyond official events and research distribution, these conversations need to continue in workplaces. Supervisors must take responsibility for discussing these issues with their teams on a regular basis.
The IBA will undertake a global engagement campaign to raise awareness about these issues and encourage dialogue among all stakeholders. Following the launch of the report on 15 May in London, the IBA will hold events across six continents in collaboration with member bar associations, law societies and group member law firms. At the time of writing, events are planned for Edinburgh, Budapest, Mexico City, Washington, DC, New York, Sydney, Melbourne, Canberra, Auckland, Santiago, Buenos Aires, São Paulo, Doha, Johannesburg, Addis Ababa, Madrid and Brussels. The campaign will culminate with a showcase session at the IBA Annual Conference in Seoul in September 2019. The report and its findings will also be promoted widely via social and traditional media channels.
176 Louis Brandeis, Other People’s Money: And How The Bankers Use It (Frederick A Stokes Publishers 1914) 92.
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CALD Meeting Paper Page 379 CALD Meeting - 4 Oct 2019 Item F01(1) 2. Implement and revise policies and standards
As this report has found, policies are no panacea. But they are a necessary starting point. Articulating clear standards of workplace conduct, outlining the procedures to be followed in the event of a complaint and regularly reminding staff of the content of policies are important steps in addressing bullying and sexual harassment. Workplace-specific policies can also be reinforced by macro-level standards articulated by regulators, bar associations and law societies.
Given that this survey highlighted that almost half of respondents’ workplaces lacked policies, legal workplaces without adverse behaviour policies should immediately investigate the adoption of such documents. Policies should be tailored to the individual workplace and properly implemented – not documents purchased ‘off the shelf’ and then left to ‘gather dust’. Nor should the presence of policies induce complacency. One commentator has warned in a related context of the risk that ‘employers and employees alike tend to equate the mere presence of these structures with legal compliance and become less aware of whether the structures actually promote legal ideals’.177
Policies should be broadly framed and not constrained by strict legal definitions; as the Women’s Bar Association of Massachusetts recommends, ‘firms should not erect barriers that require a legal definition to be met before they can respond to behaviours that undermine a culture of civility and respect’.178 This is necessary because, as the report found, much bullying and sexual harassment in the profession occurs at the lower end of the severity scale, which may not give rise to legal liability but has adverse individual and workplace consequences. Policies should also be alert to the variable work environments of legal professionals, which might include client offices, other legal workplaces, chambers, courts etc – all possible sites of bullying or sexual harassment. Workplaces must remain vigilant, habitually updating policies to incorporate internal and external developments. Workers should regularly be reminded of the policies’ content and procedures – the survey found that just one in five respondents’ legal workplaces frequently raised awareness about relevant policies. It is hoped that this report will be a timely reminder for all legal workplaces to review their bullying and sexual harassment policy arrangements.
The profession should collectively endeavour to introduce or revise policies. Regulators of the profession should consider the appropriateness and efficacy of introducing mandatory requirements for workplace policies to address bullying and sexual harassment, as has been done in some jurisdictions (whether via workplace-wide legislative obligations or profession-specific regulatory commitments). Regulators, bar associations and law societies should develop or update standards of conduct (whether mandatory or guiding), making it clear that bullying and sexual harassment have absolutely no place in the profession. The Law Society of England and Wales and the UK’s Ministry of Justice, for example, are shortly releasing a Women in Law Pledge, which will see signatory organisations ‘[c]ommitting at senior level to tackle sex discrimination, bullying and sexual harassment in the workplace’. The Bar of Ireland, meanwhile, is amending its Code of Conduct
177 Lauren Edelman, Working Law: Courts, Corporations, and Symbolic Civil Rights (University of Chicago Press 2016) 12. 178 See Rikleen, ‘Survey of Workplace Conduct’ (n 20) 34.
100 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 380 CALD Meeting - 4 Oct 2019 Item F01(1) to expressly prohibit bullying and sexual harassment.179 This combination of micro and macro-level discourse will reinforce normative standards against bullying and sexual harassment.
The IBA will first review and revise its own workplace policies, including by undertaking a workplace culture survey to understand staff attitudes at its headquarters in London and regional offices. Second, the IBA will introduce a harassment policy addressed at conduct occurring at the 60 or so conferences it holds across the world each year. A short version of the policy will be included in all conference programmes, with the full version available online. Steps will be taken to raise awareness about the content of the policy at all IBA events. Third, on the occasion of the next revision of the IBA’s International Principles on Conduct for the Legal Profession, it will be put to the IBA Council to consider amending the commentary to Principle 2 (‘Honesty, integrity and fairness’) to articulate that bullying and sexual harassment is incompatible with the duties of legal professionals.
3. Introduce regular, customised training
Notwithstanding the absence of a definitive correlation between workplace training and reduction in rates of bullying and sexual harassment, this report and other studies have highlighted the benefits of training to address such conduct.180 Survey respondents at workplaces with training were significantly less likely to have been bullied or sexually harassed within the past year. They were also less likely to have been bullied or sexually harassed by their supervisor/line manager, and more likely to have reported via internal channels. Despite these positive effects, too few legal workplaces are conducting regular and tailored training. Only 22% of respondents’ workplaces conducted training to address bullying and sexual harassment. Accordingly, there is considerable scope for the legal profession to increase the prevalence and reach of training.
Such training should be ‘supported at an organization’s highest levels, held regularly but in a varied and dynamic way, conducted… in an interactive manner, and regularly evaluated for efficacy’.181 This report found that a mix of internally and externally provided training appears to be the most effective approach; organisations that entirely outsourced their training received the worse adequacy ratings. This reflects that workplace-relevant examples, scenarios and procedures are essential elements of effective training. Training should be more than just compliance-orientated, aimed only at meeting strict legal definitions and providing a shield against liability. Training should target all forms of negative workplace behaviour, including those not prohibited by law: ‘incivility often acts
179 See Aedamair Gallagher, ‘Women’s Issues? The Findings of a Recent Survey on Women at the Bar are Outlined’ (2016) 21(2) Bar Review 50–53. 180 It should be reiterated that existing empirical research on training has significant limitations. As the US Equal Employment Opportunity Commission’s landmark study observed, ‘the results of [training] studies implicate only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training. Indeed, our most important conclusion is that we need better empirical evidence on what types of training are effective and what components, beyond training, are needed to make the training itself most effective’: Feldblum and Lipnic (n 96) 49. 181 Susan Bisom-Rapp, ‘Sex Harassment Training Must Change: The Case for Legal Incentives for Transformative Education and Prevention’ (2018) 71 Stanford Law Review 62, 71.
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CALD Meeting Paper Page 381 CALD Meeting - 4 Oct 2019 Item F01(1) as a “gateway drug” to workplace harassment’, so training should attempt to ‘stop improper behavior before it ever rises to the level of illegal harassment’.182
Workplaces should also consider specific training for managers on how to prevent and respond to incidents, and bystander intervention training – an area identified ‘as showing significant promise for preventing harassment in the workplace’.183 Whatever the exact nature, training is unlikely to be impactful if undertaken in isolation; ‘effective training does not occur within a vacuum’.184 Instead, it must be ‘part of a holistic effort undertaken by the employer to prevent harassment’,185 including by pursuing several of the other recommendations articulated in this report.
The profession should make a concerted effort to improve the frequency and quality of training to address bullying and sexual harassment. Individual workplaces that do not currently undertake training should consider doing so on a regular and customised basis. Workplaces that do run training should review their methods and frequency. Bar associations and law societies should consider producing jurisdiction-specific training materials and offering training courses for continuing legal education credit.186 Legislators and professional regulators should consider the appropriateness and efficacy of mandatory training requirements.
The IBA will create an online resource hub to serve as a clearing house for materials on effective training – including guidelines and best practice materials. As part of this hub, the IBA will create a series of videos explaining the findings and recommendations of this report, which will feature clear statements from senior officers of the IBA that bullying and sexual harassment is unacceptable. Workplaces might wish to incorporate these into their training programmes.
4. Increase dialogue and best practice sharing
This report demonstrates that bullying and sexual harassment affect all parts of the legal profession across the globe. Yet, despite the idiom that a problem shared is a problem halved, too often individual workplaces feel the need to address these challenges alone. While confidentiality obligations and defamation risk may inhibit the sharing of details of particular cases, members of the profession should come together to discuss challenges and trends and share ideas as to what works and what does not.
The profession should consider creating networks to discuss these issues and approaches to them, sharing best practice, insight and encouragement in efforts to address bullying and sexual harassment. These could be established informally or semi-formally at the initiative of several legal workplaces in a particular location, whether involving managing partners, staff partners or human resources managers (or their non-law firm equivalents), or formally via standing working groups or committees of bar associations and law societies. At the regional and global level, bar associations, law societies and professional regulators should engage more actively with their counterparts on these topics (the latter, perhaps, through fora such as the International Conference of Legal Regulators).
182 US Equal Employment Opportunity Commission, ‘EEOC Launches New Training Programme on Respectful Workplaces’ (Press Release, 4 October 2017) www1.eeoc.gov/eeoc/newsroom/release/10-4-17.cfm accessed 5 April 2019. 183 See Feldblum and Lipnic (n 96) 54. 184 Ibid 48. 185 Ibid 45. 186 See New Zealand Law Society Working Group (n 110) 99–101.
102 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 382 CALD Meeting - 4 Oct 2019 Item F01(1) The IBA will encourage its divisions and committees to regularly include sessions on bullying and sexual harassment as part of the IBA Annual Conference and regional conferences. These efforts will commence with a showcase session in Seoul at the 2019 IBA Annual Conference in September. During the global engagement campaign to follow this report, outlined above, the IBA will seek to facilitate a frank discussion between different segments of the profession to encourage immediate and ongoing dialogue and best practice sharing. The IBA will also follow the lead of the American Economic Association in seeking to engage, collaborate and share information with professional bodies from other sectors, to ensure efforts to address these societal-wide issues are not undertaken in isolation.187
5. Take ownership
Cultural change starts from the top. Both prior research and stakeholder engagement for this report indicated that workplace change is most effective when driven by senior leadership. Bullying and sexual harassment flourish in workplaces were employees perceive that such conduct is not taken seriously by management.188 Conversely, workers are more likely to consider that addressing unacceptable behaviour is a high collective priority when leaders emphasise the need for change.189 Senior leaders must be vocal about how bullying and sexual harassment cannot and will not be tolerated.
While culture may begin at the top, all layers of the profession can and must take responsibility for addressing these issues. As the US Equal Employment Opportunity Commission noted in its 2016 workplace harassment research, ‘reinforcing that culture can and must come from the bottom, middle, and everywhere else in between’.190 Taking ownership of the problem extends to accepting responsibility for, and taking action to address, situations where the risks of misconduct are increased. This report found that work-related social events are the second most common location for sexual harassment to occur. Alcohol is often cited as a contributing factor to misconduct in such environments.
Taking ownership of the issue also requires members of the profession to draw attention to inappropriate conduct when it happens and respond accordingly. For too long, the onus has been on the target to initiate a formal complaint before any action is contemplated. Bystanders must take a more prominent role in preventing and addressing bullying and sexual harassment – they can no longer be silent. To borrow a phrase from an entirely different context, ‘if you see something, say something’.
The profession should, individually and collectively, vocalise the position that bullying and sexual harassment in the profession is unacceptable, and when necessary call out inappropriate conduct.
187 American Economic Association, ‘A Message From the AEA Leadership on the Professional Climate in Economics’ (Press Release, 18 March 2019) www.aeaweb.org/news/member-announcements-mar-18-2019 accessed 5 April 2019. 188 Chloe Hart, Alison Dahl Crossley and Shelley Correll, ‘Leader Messaging and Attitudes toward Sexual Violence’ (2018) 4 Socius 1, 2; Louise Fitzgerald, Suzanne Swan and Vicki Magley, ‘But Was It Really Sexual Harassment? Legal, Behavioral, and Psychological Definitions of the Workplace Victimization of Women’ in William O’Donohue (ed) Sexual Harassment: Theory, Research and Treatment (Allyn & Bacon 1997) 5; Theresa Glomb, ‘Ambient Sexual Harassment: An Integrated Model of Antecedents and Consequences’ (1997) 71 Organizational Behavior and Human Decision Processes 309; Cooper-Thomas and others (n 41) 384–407; Hoel and Vartia (n 35) 24. 189 Ibid Fitzgerald, Swan and Magley (n 188) 9; Cooper-Thomas and others (n 41) 384–407. 190 See Feldblum and Lipnic (n 96) 58.
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CALD Meeting Paper Page 383 CALD Meeting - 4 Oct 2019 Item F01(1) Managing partners, senior barristers, general counsel, judges and other leaders of the profession should, within their workplaces and publicly, deliver this message and take actions available to them to achieve positive change. Senior leaders should be role models for expected standards of behaviour and be a visible presence in the committees, working groups and initiatives created to implement strategies for achieving change. Workplaces should encourage responsible drinking at social events and take steps to minimise excessive alcohol consumption, in light of the exacerbated risk of negative behaviour.
The IBA will, via its senior officers and President, take a public stance on the need to urgently address bullying and sexual harassment in the profession following the publication of this report. This message will consistently be delivered throughout the current presidential term (to December 2020), including during the President’s addresses at the 2019 IBA Mid-Year Meetings in Budapest and the 2019 IBA Annual Conference in Seoul. The IBA will also seek to empower other leaders of the profession to be vocal on these issues, by developing publicly accessible talking points and guidance. As outlined above, the IBA has introduced a harassment policy for its conferences and is liaising with all organisations that hold side-events to make the IBA’s expectations clear. The IBA is also reviewing the format of its social gatherings to reduce the risk of excessive drinking of alcohol.
6. Gather data and improve transparency
This report was predicated on the need for more and better data on bullying and sexual harassment in the legal profession. The IBA is not the only organisation to recognise the difficulties posed by a dearth of comprehensive data. The British House of Commons Women and Equalities Committee’s 2018 inquiry into workplace sexual harassment noted: ‘A recurrent theme of this inquiry has been a lack of awareness about the extent of sexual harassment… Without robust data about prevalence and outcomes, the Government cannot gauge whether policy interventions, legal changes and enforcement processes are effective in making workplaces safer.’191
While the absence of data may pose particular problems at the macro level, it also affects micro-level interventions. Given that a workplace’s culture has a direct impact on experiences of bullying and sexual harassment, it is important that employers have access to data regarding the particular challenges in their workplaces. To this end, it is useful for workplaces to undertake ‘internal self- assessment[s] to determine areas of particular change’, such that interventions can be appropriately targeted to the specific workplace culture.192 Data collection should not be limited to bullying and sexual harassment, and should form part of broader initiatives to gather data about diversity, mental health and workplace satisfaction in legal workplaces.
Transparency is crucially important, both as a symbolic step and to aid efforts to address negative workplace behaviour. In several jurisdictions, professional regulators have publicly reiterated the need for legal workplaces to report incidents of bullying and sexual harassment in light of good character obligations and prohibitions on serious misconduct.193 This is a necessary starting point,
191 See House of Commons Women and Equalities Committee (n 167) 46. 192 See Rikleen, ‘Survey of Workplace Conduct’ (n 20) 33. See Feldblum and Lipnic (n 96) 37. 193 See, eg, New Zealand Law Society Working Group (n 110) 99–101.
104 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 384 CALD Meeting - 4 Oct 2019 Item F01(1) but transparency should go beyond that. Legal workplaces should consider following the example of the ‘Big Four’ accounting firms, which released data regarding the number of partners who left their jobs in the past four years following allegations of inappropriate workplace behaviour.194 In that instance, one firm led the way by publicly releasing its data, which prompted the other three to follow. It might be hoped that if several major law firms took similar steps, it may result in broader disclosure of these issues in the profession, with the attendant benefits of awareness and transparency.
The profession should, at an individual workplace level, commit greater resources to gathering and analysing data on internal bullying and sexual harassment, and related issues. Workplaces should consider undertaking regular workplace climate surveys, with distinct sections on bullying and sexual harassment. Data from complaints, outcomes and climate surveys should be used to measure progress and the efficacy of strategies adopted. While this will require financial and human capital investments, the benefits of increased productivity as a result of more harmonious workplaces should soon justify those outlays. Workplaces should also consider making summaries of annualised data publicly available. These are highly sensitive issues and there may be resistance to such radical transparency, but the profession would benefit from legal workplaces being open about the nature of the challenges they face. Law societies, bar associations and professional regulators should consider undertaking their own surveys or conducting other data-gathering activities, and doing so on a regular basis.195 The Bar Council of England and Wales, for example, ran its Barrister’s Working Life survey in 2011, 2013 and 2017. Regulators should release annual data on complaints relating to bullying and sexual harassment, as well as relevant trends.
The IBA will seek to undertake a second version of this survey in 2024, to provide further data on bullying and sexual harassment within the legal profession, and enable comparisons with the data underlying this report. The IBA will also collate existing data-rich studies on this topic, many of which have been cited in this report, and include them in the online resource hub to enhance the visibility of their findings. A summary of this report will be translated into, at minimum, the six languages the survey was available in (English, French, Italian, Portuguese, Russian and Spanish), to ensure this data and recommendations are available to the largest possible audience.
194 See Burgess and Kinder (n 61). 195 A former Australian judge recently wrote: ‘A particular responsibility rests with those who hold positions of influence, such as those who control the Law Council of Australia, the Law Societies and the Bar Associations. Should they commission a prevalence study of sexual harassment within the profession, broadly comparable with the study undertaken for Universities Australia? With the benefit of the results of such a survey, they could seek expert advice about what, if anything, should be done next’: Catherine Branson, ‘Making the Law Safer for Women’ (2018) 144 Precedent 2.
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CALD Meeting Paper Page 385 CALD Meeting - 4 Oct 2019 Item F01(1) 7. Explore flexible reporting models
Effective reporting systems that empower targets of bullying and sexual harassment to report their experiences are ‘among the most critical elements’ of a strategy to address such conduct. Yet this report finds that the reporting mechanisms at many legal workplaces are failing: 75% of sexual harassed respondents and 57% of bullied respondents had never reported. Among the most commonly cited reasons for not reporting was fear of repercussions and a lack of confidence in reporting procedures. Elsewhere, psychological research has found that reporting can take a tremendous toll on those who do decide to report, worsening job, psychological and health outcomes for targets.196
The profession should therefore urgently consider revising existing reporting models, both at individual workplaces and in external organisations that receive reports (a function often held by professional regulators or law societies and bar associations). Emphasis should be placed on flexibility: ‘[workplaces] should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment’.197 Targets should feel they can report incidents whatever the severity, and that incidents will be dealt with sensitively, proportionately and – to the extent necessary – confidentially.
Legal workplaces should seek to develop or consolidate office cultures that support, rather than distrust, reporting of incidents – both in the present context and more generally.198 Workers must feel safe raising concerns: too often there is ‘clear pressure in the workplace to avoid being viewed as humorless or as not a team player’.199 Workplaces should also consider whether independent reporting processes are appropriate to ensure that staff can report to persons separate from the workplace’s hierarchy.200 Improving flexible reporting models will not be a cure-all; the most common reason for not reporting was the profile or status of the perpetrator, and better reporting models will never overcome these concerns entirely. But by emphasising that workplaces are taking these issues seriously, are open to reports through various, flexible channels and are determined to prevent retaliation, even this most significant barrier to reporting can be eroded.
One possible model for consideration is the internal grievance process adopted in 2018 by the bar in Victoria, Australia. In addition to formal complaint channels available via the professional regulator and other institutional bodies, this policy empowers targets to lodge either a complaint ‘seeking investigation and response’ or a report ‘for the purpose of improving the implementation of the training and awareness objectives’ of the policy. Complaints are investigated, where possible conciliated by a trained, senior member of the bar, and, in some circumstances, referred to the
196 See, eg, Mindy Bergman and others, ‘The (Un)Reasonableness of Reporting: Antecedents and Consequences of Reporting Sexual Harassment’ (2002) 87 Journal of Applied Psychology 230–242; Matthew Hesson-McInnis and Louise Fitzgerald, ‘Sexual Harassment: A Preliminary Test of an Integrative Model’ (1997) 27 Journal of Applied Social Psychology 877, 896. 197 See Feldblum and Lipnic (n 96) 43. 198 See, eg, International Bar Association, ‘Whistleblower Protections: A Guide’ (April 2018). 199 See Rikleen, ‘Survey of Workplace Conduct’ (n 20) 8. 200 Ibid; House of Commons Women and Equalities Committee (n 167) 26–27.
106 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 386 CALD Meeting - 4 Oct 2019 Item F01(1) professional regulator. Reports, on the other hand, are anonymised and used only for statistical purposes and to inform the Victorian Bar’s initiatives to address bullying and sexual harassment. This model offers targets an avenue to have their voices heard in circumstances where they do not otherwise wish to formally proceed with a complaint and concomitant investigation.201
Technology might offer other tools to enhance existing reporting models. Several major universities in the US have adopted a platform provided by Callisto, a non-profit organisation, which enables targets to save time-stamped written records of sexual assault.202 Targets can then decide at a later date whether to report, and rely on that time-stamped record. Callisto also takes advantage of ‘information escrow’ technology, whereby targets can identify the perpetrator, but their report is only submitted to the appropriate authority if a second target makes an allegation through the platform against the same perpetrator. This minimises the significant ‘first-mover disadvantage’ facing a target who wishes to report. Technologies such as these offer significant promise: ‘escrows hold the potential for mitigating the twin concerns of initial underreporting of truthful allegations and the subsequent over-reporting of false allegations’.203 But they also have drawbacks, and are unlikely to proliferate overnight.
Fostering mentoring relationships between junior and senior legal professionals, both within and beyond workplaces, may be another way to increase dialogue and empower junior legal professionals to informally share concerns regarding bullying and sexual harassment in their workplaces. However, as the Women’s Bar Association of Massachusetts observed, ‘commiseration is not a strategy’.204 These relationships should supplement but not supplant formal reporting channels: ‘while it is important to be able to have trusted colleagues at work to whom one can speak confidentially about sensitive topics, this approach generally will not help the individual’s circumstances, and will certainly not bring about any positive change’.205
The profession should review and revise existing reporting procedures, and seek to implement a flexible approach to encourage targets to report incidents. This should be undertaken both by individual workplaces and by external organisations with a regulatory or quasi-regulatory role. Workplaces should engage with their workforces, emphasising a positive approach to reporting and seeking feedback as to the failings with existing models. Workplaces should also investigate the potential utility of technological solutions, and strengthen formal and informal mentoring schemes.
The IBA will include information on best practice reporting models on its online resource hub. In addition, the IBA will monitor the implementation of its harassment policy for IBA conferences, with a view to ensuring the best practice is applied in that context. The IBA will also seek to foster discussion on these particular issues during the events it holds on bullying and sexual harassment as part of the engagement campaign to follow the publication of this report.
201 Available online: Victorian Bar, Internal Conduct Policies and Reports, 1 July 2018 at www.vicbar.com.au/public/about/ governance/internal-conduct-policies-and-reports accessed 5 April 2019. 202 Ian Ayres, ‘Meet Callisto, the Tinder-like platform that aims to fight sexual assault’,Washington Post (Washington, DC, 9 October 2015) www.washingtonpost.com/opinions/using-game-theory-technology-to-fight-sexual-assault/2015/10/09/ f8ebd44e-6e02-11e5-aa5b-f78a98956699_story.html accessed 5 April 2019. 203 Ian Ayres and Cait Unkovic, ‘Information Escrows’ (2012) 111 Michigan Law Review 145, 148. 204 See Rikleen, ‘Survey of Workplace Conduct’ (n 20) 35. 205 Ibid.
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CALD Meeting Paper Page 387 CALD Meeting - 4 Oct 2019 Item F01(1) 8. Engage with younger members of the profession
This report found that bullying and sexual harassment disproportionately affects younger members of the profession. This impact is multifaceted: younger respondents report experiencing more bullying and sexual harassment, and indicate less satisfaction with workplace approaches to addressing the conduct. These findings are not novel; a study conducted for the Law Society of Scotland in 2011 found ‘trainees and new solicitors are most impacted by bullying and harassment’.206 The New Zealand Law Society’s 2018 survey made similar findings.207
A recurring theme of stakeholder engagement during the report drafting process was the growing divergence between attitudes of older and young members of the profession. Young legal professionals today are not accepting of conduct that older legal professionals may have ‘tolerated’ in the past as a ‘fact of professional life’. This partly reflects changing societal perceptions of appropriate workplace conduct; in 2018 former Supreme Court of the UK President Lord Neuberger admitted he may have acted in a way that ‘would now be considered bullying’ when he was in practice.208 But it seems that change is most keenly felt among younger generations, and in hierarchical sectors such as the legal profession, there is a risk of a generational disconnect between the profession’s current and future leaders. To address this and mitigate potential consequences, the profession should engage with younger members on these issues – listening to their distinct perspective and ensuring those voices are involved in efforts to address bullying and sexual harassment.
The profession should take all necessary steps to engage with and raise awareness about these issues among younger members of the profession. Workplaces and regulators should consider specific training to form part of trainees’ entry into the profession; law schools should ensure that workplace bullying and sexual harassment are discussed in class. Workplaces should acknowledge that hierarchies and power imbalances may prevent younger legal professionals from actively advocating on these issues, and find ways to empower those voices (whether through workplace committee structures, informal dialogue or anonymous surveys). Finally, senior members of the profession should seek to engage with the perspectives of their junior colleagues to develop a greater appreciation of changing attitudes to workplace culture.
The IBA will collaborate with its Young Lawyers’ Committee on these issues, holding sessions on bullying and sexual harassment in the profession at several of its IBA Young Lawyers’ Training days (including alongside the 2019 IBA Annual Conference in Seoul). Throughout the IBA’s global engagement strategy across each continent, it will engage with young lawyer bodies in different jurisdictions; this engagement will include involving those bodies in primary events (typically held in conjunction with domestic bar associations and law societies) and through standalone events targeted at younger members of the profession. The IBA will also engage with law schools during its campaign to reach legal professionals of the future.
206 Law Society of Scotland, ‘Preventing Bullying and Harassment in the Profession’ (June 2011) Equality Works, 29. 207 See Colmar Brunton (n 20) 7. See also Rikleen, ‘Survey of Workplace Conduct’ (n 20) 33. 208 Max Walters, ‘Neuberger: I Suspect I Have Been Guilty of Bullying’, Law Gazette (London, 20 April 2018) www. lawgazette.co.uk/law/neuberger-i-suspect-i-have-been-guilty-of-bullying/5065774.article accessed 5 April 2019.
108 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 388 CALD Meeting - 4 Oct 2019 Item F01(1) 9. Appreciate the wider context
Workplace bullying and sexual harassment do not occur in a vacuum. There are a range of related factors, several of which are currently under the spotlight in the legal community. Mental health has a bidirectional relationship with negative workplace conduct: bullying and sexual harassment can have adverse mental health impacts, while lawyers who are experiencing mental health challenges might be more likely to see their standards of interpersonal conduct decline below acceptable levels. Research demonstrates that dysfunctional workplace behaviours have a direct negative effect on the wellbeing of targets, perpetrators and third parties.209 It is unlikely to be coincidental that bullying is so prevalent in a profession where highly pressured environments and associated stress are commonplace. In recent years, the profession has begun to realise that it is facing a ‘mental health crisis’.210 Research has found that legal professionals are four times more likely than the general population to experience depression.211 The impact of bullying and sexual harassment ‘on an already vulnerable profession’ is thereby concerning.212 In 2018, the prevalence of mental health difficulties among lawyers was tragically highlighted when a partner at a major American firm committed suicide. In an open letter to the profession, the partner’s spouse was damning: ‘I keep going back to one thought: “Big Law” killed my husband’.213
For some time, there has been concern about the workplace satisfaction and quality of life enjoyed by legal professionals. In 1996, the New York City Bar established a Task Force on Lawyers’ Quality of Life in response to concerns ‘that disturbing numbers of lawyers, particularly young lawyers, were growing dissatisfied with their professional lives’.214 These concerns have only grown louder in subsequent decades as globalisation has spurred increased competition within the profession, with client expectations of ‘24/7 availability’ coinciding with the ‘ratcheting up of billable hours’.215 Studies suggest that legal professionals experience lower levels of job satisfaction than other professionals, and are more likely to suffer from anxiety, substance abuse and heart disease.216 As the American Bar Association stated, this is ‘incompatible with a sustainable legal profession and raise[s] troubling implications for many lawyers’ basic competence’.217 In recent years, there have
209 Paula Baron, ‘The Elephant in the Room? Lawyer Wellbeing and the Impact of Unethical Behaviours’ (2015) 41 Australian Feminist Law Journal 87, 117. 210 Nicholas Alexiou, ‘The Legal Mental Health Crisis Hits Home’, Above the Law (New York, 16 November 2018) https://abovethelaw.com/2018/11/the-legal-mental-health-crisis-hits-home accessed 5 April 2019. 211 William Eaton and others, ‘Occupations and the Prevalence of Major Depressive Disorder’ (1990) 32 Journal of Occupational Medicine 1079, 1083. 212 See Law Council of Australia, Submission to Australian Human Rights Commission (n 26) 75. 213 Joanna Litt, ‘“Big Law Killed My Husband”: An Open Letter From a Sidley Partner’s Widow’, The American Lawyer (New York, 12 November 2018) www.law.com/americanlawyer/2018/11/12/big-law-killed-my-husband-an-open-letter-from-a- sidley-partners-widow accessed 5 April 2019. 214 New York City Bar, ‘Report of the Task Force on Lawyer’s Quality of Life’ (July 2002). 215 Thornton, ‘Squeezing The Life Out of Lawyers’ (n 19) 471. 216 See, eg, Baron (n 209) 88–89; Eaton and others (n 211); Adele Bergin and Nerina Jimmieson, ‘Australian Lawyer Well-being : Workplace Demands, Resources and the Impact of Time-billing Targets’ (2014) 21(3) Psychiatry, Psychology and Law 427; Steve Mark, ‘Impaired Practitioners; Substance Abuse and Mental Illness in the Legal Profession’ (2007) 37 Without Prejudice 1; Rick B Allan, ‘Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial’ (1997) 31 Creighton Law Review 265. 217 National Task Force on Lawyer Well-being, ‘Creating a Movement To Improve Well-being in the Legal Profession’ (American Bar Association, 14 August 2017) 1.
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CALD Meeting Paper Page 389 CALD Meeting - 4 Oct 2019 Item F01(1) been a number of initiatives to improve wellbeing in the profession.218 Some of these initiatives focused on underlying factors that influence wellbeing, including bullying and sexual harassment.219
More than a century since women were admitted as lawyers for the first time in some jurisdictions, senior leadership positions in the legal profession across the globe remain overwhelmingly male- dominated.220 In recent years, efforts to improve diversity have gained greater prominence; diversity advisers are employed by many large legal organisations, while users of legal services are beginning to include diversity requirements in tender processes. Like mental health, the relationship between diversity and bullying and sexual harassment is bidirectional. As this report’s predecessor found, the widespread prevalence of bullying and sexual harassment is a major barrier to female progression within the profession. The overrepresentation of men in workplaces, particularly at senior level, has also been identified as a contributing factor to such conduct in non-legal studies. Of course, diversity goes beyond gender. A profession that is diverse and inclusive across gender, ethnicity, race, sexuality, physical ability, background and other individual characteristics will be a better one in many respects, including that it will be one where bullying and sexual harassment is less widespread.
The profession should acknowledge the relationship between mental health, quality of life, diversity and negative workplace conduct. Individual workplaces should place emphasis on addressing factors that contribute to adverse mental health outcomes, and supporting staff who suffer from mental health challenges. Bar associations and law societies should consider what symbolic and practical steps they can take to improve mental health and quality of life more generally within the profession. For example, in the UK and Ireland, LawCare is an independent charity funded by professional bodies and regulators that operates a mental health helpline for the profession. Efforts to increase diversity should be continued and expanded at both workplace and profession-wide levels. Stakeholders should adopt an intersectional approach to addressing bullying and sexual harassment, and promoting diversity, understanding that they are related and cannot be dealt with in an isolated manner.
The IBA will commit to fostering awareness and highlighting solutions to the mental health challenges facing the profession. A Presidential Task Force was recently established to address mental health and substance abuse in the profession and will report on its efforts at the IBA Annual Conference in Miami in 2020. The IBA will continue its thought leadership on diversity and inclusion in the profession; the area is currently a Presidential Priority. In 2017, the IBA established a Diversity and Inclusion Council to improve diversity and promote inclusivity across all parts of the IBA. In February 2019, the Council was given a formal constitutional role as a subcommittee of the IBA Management Board, and a Diversity and Inclusion Policy was adopted. Several initiatives are currently underway: the development of a diverse speaker bureau, unconscious bias training, and
218 See, eg, Robyn Ward, ‘Other Supporters: New Campaign Urges Legal Profession to “Look Deeper”’ (23 September 2015) R U OK? www.ruok.org.au/other-supporters-new-campaign-urges-legal-profession-to-look-deeper accessed 5 April 2019; ‘Mental Health: Top Law Firms Commit to New Working Practices to Support Employees’, Thomson Reuters Legal Insights Europe (London, 16 November 2018) https://blogs.thomsonreuters.com/legal-uk/2018/11/16/mental-health- top-law-firms-commit-to-new-working-practices-to-support-employees accessed 5 April 2019. 219 Suzanne Poynton and others, ‘Assessing the Effectiveness of Wellbeing Initiatives for Lawyers and Support Staff’ (2018) 41 University of New South Wales Law Journal 584, 589. 220 Generally, see Ellis and Buckett (n 78); Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press 1996).
110 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 390 CALD Meeting - 4 Oct 2019 Item F01(1) a mentoring programme, in addition to formal and informal collaboration with efforts of other stakeholders, such as the Law Society of England and Wales’ landmark Women in Law project.
10. Maintain momentum
Negative workplace behaviour is currently a prominent topic. This report will add to a growing body of literature produced over the past year on bullying and sexual harassment in the legal profession and beyond. In May 2019, the American Bar Association will publish The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace by noted workplace expert Lauren Stiller Rikleen. Just before this report went to print, the American Economic Association announced a range of measures in response to a professional climate survey that revealed widespread harassment and discrimination within that sector.221 On the same day in May, the New Zealand Law Society and the University of California, Berkeley will convene separate international symposiums on these issues. Spurred by the #MeToo movement and a broader push in support of workplace diversity and inclusion, it appears that there is both appetite for change and an active coalition of stakeholders working towards it.
Change is not inevitable. As the Introduction to this report highlighted, there have been #MeToo- like moments before. During stakeholder engagement, one eminent academic mused that it felt like she had been discussing these issues for her entire (lengthy) professional life. Thirty-six years after the swimsuit competition, 27 years after the American Bar Association’s Recommendation 117 and 21 years after the London strip club incident, bullying and sexual harassment remain rife. As a profession, we cannot be complacent. Change will only occur through concerted, collective efforts. Otherwise, there is a risk that the #MeToo momentum will dissipate and a similar report will be written in another two decades, highlighting the same problems and again calling for change.
The legal profession should take steps to give a structural basis to efforts addressing bullying and sexual harassment, as a way of ensuring that action continues on these issues in the medium and longer term. Workplaces should consider establishing permanent committees with mandates for maintaining efforts to address bullying and sexual harassment, alongside improving visibility of these issues at senior leadership levels. As suggested above, bar associations and law societies should take similar action, creating standing working groups and other institutional actors to initiate and implement strategies to eliminate such conduct. Awareness-raising efforts should be continued and steps taken to harness those fora into ongoing, productive dialogues for change, rather than one-off initiatives.
The IBA will commit to keeping bullying and sexual harassment high on its policy agenda, through its LPRU and its Diversity and Inclusion Council. As indicated above, the IBA will seek to undertake a follow-up survey of a similar nature to maintain momentum and identify changing dynamics in five years’ time. To secure high-profile symbolic commitment to addressing these issues, now and into the future, the IBA President will soon release an open letter highlighting the report’s findings and calling for change. The open letter will be provided to every IBA constituent law society, bar association and group member law firm, and each will be given the opportunity to co-sign the letter.
221 See American Economic Association (n 187).
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CALD Meeting Paper Page 391 CALD Meeting - 4 Oct 2019 Item F01(1) Conclusion
The shoemaker’s son, according to the proverb, often goes barefoot. And so it is that the legal profession – predicated on upholding the law, maintaining the highest ethical standards and advising other professions on doing the same – is rife with bullying and sexual harassment. Such conduct is illegal in many jurisdictions, contrary to professional obligations, and immoral. Yet, as highlighted by this global survey – the largest of its kind – bullying and sexual harassment affect a significant portion of the legal workforce. From overbearing supervision to physical violence, and from sexist slurs to sexual assault, the nature of the conduct varies widely. But these incidents are unified by a single factor: such conduct is unacceptable in the modern legal workplace.
It is hoped that this research serves as a wake-up call for the profession. The results will be unsurprising for many; anecdotes of bullying and sexual harassment in legal workplaces have long been commonplace. However, for too long, these incidents were dismissed as just that – anecdotes, representative of a few bad apples and not the profession as a whole. This survey provides empirical validation. Bullying and sexual harassment are widespread. They are chronically underreported. When incidents are reported, the workplaces’ responses are inadequate and often exacerbate the situation. Such conduct is driving people away from their workplaces and the profession as a whole. These findings – drawn from almost 7,000 respondents across 135 countries – cannot be ignored.
Change is hard, but it is possible – and urgently necessary. For change to occur, the profession must work together. Bar associations and law societies must lead by example, while law firms and legal workplaces should ensure that they have appropriate policies and training in place and respond sensitively to allegations. Individual members of the profession should take steps to ensure their workplaces are free from bullying and sexual harassment. We should call out bad behaviour and support those who suffer as a result of it. It is incumbent on all members of the profession to work together to address these issues, because the findings of this research are damning upon us all. It has been said that ‘the standard you walk past is the standard you accept’. For too long, the legal profession has looked the other way. No more. Every member of the legal profession has personal responsibility for eliminating bullying and sexual harassment from our workplaces. Together, we can achieve positive change.
112 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 392 CALD Meeting - 4 Oct 2019 Item F01(1) Working Group
This project was developed in collaboration with a Working Group drawn from across the IBA’s membership. The Working Group’s significant contribution to this report is acknowledged with sincere thanks.
Anthony Atata Hallblack Law Firm (African Regional Forum)
Sidika Baysal B+B Legal (European Regional Forum)
Bettina Bender Winckworth Sherwood (Global Employment Institute)
Clare Corke Corrs Chambers Westgarth (Asia Pacific Regional Forum)
Ignacio Funes de Rioja Funes de Rioja & Asociados (Global Employment Institute)
Sarah Gregory Baker McKenzie
Patricia Menéndez Cambó Greenberg Traurig (Women Lawyers’ Interest Group)
Ann-Marie McGaughey Squire Patton Boggs (North American Regional Forum)
Ken Murphy Law Society of Ireland (Bar Issues Commission)
Jane Park-Weir Norton Rose Fulbright
Brenda Pritchard Gowling WLG (North American Regional Forum)
Dominika Stępińska-Duch Raczkowski Paruch (Women Lawyers’ Interest Group)
Hans Sydow Tinoco, Travieso, Planchart & Núñez (Latin American Regional Forum)
Sarah Tucker CMS UK
Paula Vieira de Oliveira Mattos Filho (Latin American Regional Forum)
Carolina Zang Zang, Bergel & Viñes Abogado (Law Firm Management Committee)
This report also benefited from the helpful comments of three independent experts on an earlier draft. Their input is acknowledged with considerable gratitude.
Emerita Professor Margaret Thornton The Australian National University
Emerita Professor Patricia Easteal AM University of Canberra
Kate Eastman SC New Chambers
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CALD Meeting Paper Page 393 CALD Meeting - 4 Oct 2019 Item F01(1) Acknowledgments
It has taken a wide-ranging and diverse segment of the legal profession to bring this report to fruition. Thanks are owed first and foremost to Acritas, our survey and data analysis partner, for all its hard work. Thanks to Lisa Hart Shepherd, Lucy Leach, Tom Kelsey, Daniel Lowe, Michelle Nesbitt-Burrell, Jo Summers and Elizabeth Duffy. Thanks to all IBA law society, bar association and law firm members for their efforts bringing the survey to the attention of their constituents and staff. Thanks are particularly due to the Law Council of Australia, the Law Society of New South Wales, the Law Society of South Australia, the Law Society of England and Wales (and its Junior Lawyers Division), the Federation of Law Societies of Canada and the bars/bar associations of Costa Rica, Luxembourg, Norway, Sweden and Washington, DC. Herbert Smith Freehills LLP kindly agreed to host the launch of this report at its London office.
The IBA leadership have been vocal supporters of this project. Thanks to President Horacio Bernardes Neto, Vice President Jim Klotz, Secretary-General Almudena Arpón de Mendívil, Executive Director Mark Ellis, Deputy Director Tim Hughes, Legal Practice Division (LPD) Chair Jon Grouf, LPD Vice-Chair Peter Bartlett and Section on Public and Professional Interest (SPPI) Chair Sarah Hutchinson. Thanks to the various teams within the IBA head office who assisted with this project in various forms, including: Press (Romana St Matthew-Daniel); Divisions (Ronnie Hayward, Astrid Wargenau and Becca Verhagen); Office (Lowri Williams); Conferences; Content (Ruth Green, Jennifer Sadler-Venis and Tom Maguire); Production (Tim Licence, Josh Cather, Leonie Stuart and Penny Newton); Marketing (Jennie Castro and Greg Carrasco); Membership (Joe Bell and Eric Rugundu); the IBA Human Rights Institute (Baroness Helena Kennedy QC, Zara Iqbal and Anna-Maria Balntas); eyeWitness to Atrocities (Nyangala Zolho); and the LPRU past and present (Jane Ellis, Ashleigh Buckett, Rocio Paniagua, Emily Boig, Anurag Bana, Georgia Watson and Sara Carnegie). The efforts of the IBA’s regional offices in distributing the survey were particularly appreciated – thanks to the Seoul office (Juni Son and Tae In Joung); Washington, DC office (Michael Maya and Sosseh Prom); and the São Paulo office (Flavia Alves and Lucy Leal). Thanks are also due to the numerous LPRU interns who assisted on this project, including: Sadia Tuli; Pauline Forje; Lucía Zóboli; Sofya Cherkasova; Anna Yamaoka-Enkerlin; Tom Hvala; Emily Daemen; Eleanor Livingston; Sophia Collins; Wevine Fidelis-Nwaefulu; Kristina Zivkovic; Yasmin Younis; and Federica Gamen. The input of Sofya, Tom and Sophia was particularly invaluable. Sophia assisted with the drafting of the report and her perseverance in the weeks approaching the deadline was greatly appreciated.
Thomson Reuters’ Transforming Women’s Leadership in the Law programme has consistently supported this research – thanks to Ann Lundin. Nancy Hendry, Adele Edwin-Lamerton, Amy Clowrey, Laura Uberoi, Kate Allman, Elizabeth Rimmer, Tracy Kepler, Heather Roberts and Fiona McLeod SC provided much-needed enthusiasm. Tatiana Stryzheuskaya assisted with translation.
Finally, and most importantly, thanks to the 6,980 members of the legal profession who completed the survey. We know that for many respondents, sharing their experiences meant reliving harrowing past incidents of bullying and sexual harassment. Your bravery is admirable and we hope that this report does justice to your courage.
114 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 394 CALD Meeting - 4 Oct 2019 Item F01(1) Appendix 1: Survey
As the survey used conditional branching and a mix of mandatory and optional questions, it is difficult to replicate in paper form. Nevertheless, for the purpose of transparency, the survey is extracted below.
The IBA Legal Policy & Research Unit (LPRU)’s 2017 Women in Commercial Legal Practice report revealed startling rates of bullying and sexual harassment in the profession. Subsequently, the IBA LPRU resolved to undertake a new survey to establish an empirical understanding of the nature and prevalence of such conduct. The findings of this survey will feature in a report providing recommendations for legal workplaces regarding their policies, training and incident response systems. It is hoped that the report will contribute to the broader cultural shift in workplace attitudes towards bullying and sexual harassment.
All responses are anonymous. Acritas Research Limited, an independent agency administering the survey, will process responses and pass aggregated results to the IBA LPRU. Acritas may capture IP addresses to ensure survey integrity. It will not capture any other personal information. Please see the IBA’s privacy policy and Acritas’ privacy policy.
The IBA LPRU appreciate that recollecting incidents of bullying and sexual harassment may be distressing, and encourage participants to seek appropriate support. The purpose of this survey is to obtain data – this is not a forum through which to report incidents.
The survey should take between 10–15 minutes to complete. Thank you for participating in this research – every response is valuable.
This survey draws on the definition of harassment found in the UK’s Equality Act:
Harassment is unwanted conduct… which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
For the purpose of this survey, the term ‘harassment’ includes direct and indirect bullying and sexual harassment.
______
(d1) What is your gender?
Female Male
Other (non-binary/self-defined) Would prefer not to specify
(d2) What is your age?
Less than 25 25–29 30–34 35–39
40–44 45–49 50–54 55–59
60 and above Would prefer not to specify
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CALD Meeting Paper Page 395 CALD Meeting - 4 Oct 2019 Item F01(1) (d3) In what country do you usually work?
______
(d4) Which best describes your current workplace?
Law firm Barristers’ chambers Corporation/organisation Government
Judiciary (including courts and tribunals) Other [Please specify]
(d5) What is your position? (Only ask to law firms)
Partner Special counsel/of counsel Consultant
Senior associate or senior solicitor Associate or solicitor Contract solicitor
Trainee solicitor or graduate Clerk, intern or paralegal Business services or support staff
Would prefer not to specify Other [Please specify]
(d6) What is the size of your law firm? (Only ask to law firms)
Less than 5 partners 5–10 partners 11–50 partners 51–100 partners
More than 100 partners Would prefer not to specify
(d7) How long have you been at your current firm? (Only ask to law firms)
Less than 1 year 1–2 years 2–5 years 5–10 years
10–15 years More than 15 years Would prefer not to specify
Policies
(d7) Does your workplace have a policy or policies in place which address bullying and sexual harassment?
Yes No Unaware
(d7a) (If yes) Does your workplace inform you of your and others’ rights and obligations under such policies?
Frequently Occasionally Rarely (eg, at commencement only)
Never Unsure
(d7b) (If yes) Do you know who is responsible for managing complaints made under the policy or policies?
Yes No
(d7bi) (If yes) Are you confident that this person/people would deal with concerns or complaints in a thorough, confidential and impartial manner?
Yes No Partially Unsure
116 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 396 CALD Meeting - 4 Oct 2019 Item F01(1) Training
(d8) Does your workplace conduct training or information sessions relating to bullying and/or sexual harassment?
Yes No Unsure
(d8a) (If yes) Do you consider the level of training or information sessions to be adequate?
Yes No Inconsistent
(d8b) (If yes) Was the training or information sessions conducted internally or by an external provider?
Internally External provider Both Unsure
(d9) Generally, how would you assess your workplace’s policies, procedures and approach to preventing bullying or sexual harassment and responding to incidents?
Excellent Good Sufficient Insufficient
Negligible Unsure
Conduct
The following questions will ask whether you experienced one or more types of bullying or sexual harassment at any time during the course of your legal career. Such conduct can occur in person, in written communications, via email, phone or social media.
The first set of questions will focus on any types of bullying you have experienced and the second set will focus on any types of sexual harassment you have experienced.
Bullying
For the following questions, please consider your experiences throughout your legal career.
(b1) Have you ever been bullied in the workplace?
Yes No
(b2) (If yes) What form did this bullying take? (Please select all that are applicable)
Being deliberately given too much or too little work, or work inadequate to the position
Overbearing supervision, undermining of work output or constant unproductive criticism
Misuse of power or position
Ridicule or demeaning language
Implicit or explicit threats, other than relating to the categories above
Exclusion or victimisation
Exclusion from or bullying via social media, including work WhatsApp groups
Malicious rumours
Being blocked from promotion or training opportunities due to a protected characteristic (such as race, sex, religion)
Unfounded threats or comments about job security
Violence, threatened or actual
Other [Please specify]
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CALD Meeting Paper Page 397 CALD Meeting - 4 Oct 2019 Item F01(1)
Prefer not to specify
(b3) (If no) Have you witnessed bullying in the workplace throughout your career working in the legal sector?
Yes No
(b4) (If yes) What form did this bullying take? (Please select all that are applicable)
Being deliberately given too much or too little work, or work inadequate to the position
Overbearing supervision, undermining of work output or constant unproductive criticism
Misuse of power or position
Ridicule or demeaning language
Implicit or explicit threats, other than relating to the categories above
Exclusion or victimisation
Exclusion from or bullying via social media, including work WhatsApp groups
Malicious rumours
Being blocked from promotion or training opportunities due to a protected characteristic (such as race, sex, religion)
Unfounded threats or comments about job security
Violence, threatened or actual
Other [Please specify]
Sexual Harassment
You will now be asked questions about sexual harassment in the workplace. For these questions, please consider your experiences throughout your legal career.
(h1) Have you ever been sexually harassed in the workplace?
Yes No
(h2) (If yes) What form did this sexual harassment take? (Please select all that are applicable)
Being looked at in an inappropriate manner which made you feel uncomfortable
Sexual or sexually suggestive comments, remarks or sounds
Sexist comments, including inappropriate humour or jokes about sex or gender
Receiving sexually explicit content or propositions via email or social media
Being the subject of sexist behaviour on work WhatsApp groups
Receiving sexually explicit presents, cards or letters
Inappropriate physical contact, for example patting, pinching, brushing up against the body and any inappropriate touching or feeling
Implicit or explicit demands for sexual favours in exchange for employment or promotion
Implicit or explicit demands for sexual favours in exchange for a favourable performance appraisal
Implicit or explicit demands for sexual favours in exchange for work opportunity (ie, to be involved in a matter)
Sexual propositions, invitations or other pressure for sex
Seriously inappropriate physical contact, for example kissing, fondling or groping
118 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 398 CALD Meeting - 4 Oct 2019 Item F01(1)
Physical assault or rape
Other [Please specify]
Prefer not to specify
(h3) (If no) Have you witnessed sexual harassment in the workplace throughout your career working in the legal sector?
Yes No
(h4) (If yes) What form(s) did the sexual harassment that you witnessed take? (Please select all that are applicable)
Being looked at in an inappropriate manner which made you feel uncomfortable
Sexual or sexually suggestive comments, remarks or sounds
Sexist comments, including inappropriate humour or jokes about sex or gender
Receiving sexually explicit content or propositions via email or social media
Being the subject of sexist behaviour on work WhatsApp groups
Receiving sexually explicit presents, cards or letters
Inappropriate physical contact, for example patting, pinching, brushing up against the body and any inappropriate touching or feeling
Implicit or explicit demands for sexual favours in exchange for employment or promotion
Implicit or explicit demands for sexual favours in exchange for a favourable performance appraisal
Implicit or explicit demands for sexual favours in exchange for work opportunity (ie, to be involved in a matter)
Sexual propositions, invitations or other pressure for sex
Seriously inappropriate physical contact, for example kissing, fondling or groping
Physical assault or rape
Other [Please specify]
Prefer not to specify
For each type of conduct, the following sub-questions will be asked if the participant answers ‘yes’ for up to three categories:
You will now be asked some additional questions about the forms of [bullying/sexual harassment] you have experienced, which will help us understand these issues at an industry level. If you would prefer not to answer any questions please leave blank and click ‘next’.
(b/h5) Has this happened on more than one occasion?
Yes No
(b/h5a) (If yes) Has this incident happened:
As part of a course of conduct (repeatedly by the same source/perpetrator)
As a number of isolated incidents, from different sources or perpetrators
Both of the above (ie, a course of conduct, as well as separate unrelated incident(s))
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CALD Meeting Paper Page 399 CALD Meeting - 4 Oct 2019 Item F01(1) (b/h6) Where did this occur? (Select all that apply)
Workplace Client office Office of a third party (judge, barrister, consultant, etc)
During a proceeding (eg, court, arbitration) Work travel Social media
Work social event Non-work social event Conference Other [Please specify]
Prefer not to state
(b/h7) By whom? (Select all that apply)
Your line manager or supervisor Someone more senior than you (other than your line manager/ supervisor)
Someone of equal seniority Someone junior to you Someone in a support function
A client A third party (consultant, judge, barrister, a solicitor from another firm)
Other [Please specify]
Prefer not to state
(b/h8) When has this type of [bullying/sexual harassment] occurred? (Select all that apply)
Within the last month 1–6 months ago 6–12 months ago 1–5 years ago
5–10 years ago 10–20 years ago Over 20 years ago Prefer not to state
(b/h9) Did you report the [bullying/sexual harassment]?
Yes – on all occasions Sometimes Never Prefer not to say
(b/h9a) (If reported) Who did you report to? (Select all that apply)
Internal workplace channels Professional body regulator (eg, The Law Society and bar association)
Public regulator The police Other [Please specify]
120 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 400 CALD Meeting - 4 Oct 2019 Item F01(1) (b/h10) (If not reported) Did any of the following factors contribute to you not reporting the [bullying/sexual harassment] you experienced? [Select all that apply or leave blank if none apply]
Unaware of the correct protocols/reporting procedure
Lack of confidence in protocols/reporting procedure
Reported previously and no/insufficient action taken as a result
Did not recognise as bullying/harassment until time had passed
Incident endemic to the firm/perceived as acceptable
Fear of not being believed
Lack of evidence
Profile/status of the perpetrator (eg, senior member of the firm)
Fear of repercussions for self
Fear of repercussions for others in the firm
Did not wish to revisit the incident (eg, tribunals)
Prefer not to state
(b/h11) (If reported) How would you assess your workplace’s response to the reported conduct?
Excellent Good Sufficient Insufficient
Negligible Inconsistent (where you have reported on multiple occasions)
Unsure
(b/h12) (If reported) Was the perpetrator sanctioned in any way?
Yes No Sometimes (where you have reported on multiple occasions)
Unaware
(b/h13) (If reported) In your opinion, what impact did your workplace’s response have?
Resolve the situation Mitigate the situation Exacerbate the situation
Mixed (where you have reported on multiple occasions) Unchanged
Unsure Prefer not to answer
(b/h14) Has (or will) this conduct contribute to you:
Switching practice areas or departments within your workplace Leaving your workplace
Leaving the profession
Prefer not to say None of the above
(b/h15) Optional question: if you would like to provide any additional context about the incident, please do so below. All information will be treated as strictly confidential. Please do not include any information which identifies yourself or a third party.
______
______
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CALD Meeting Paper Page 401 CALD Meeting - 4 Oct 2019 Item F01(1) General
If you have any additional comments on this survey, the IBA LPRU’s Harassment in the Legal Profession Project or the issue generally, please use the text box below. Please do not include any information which identifies yourself or a third party.
______
______
______
______
______
Thank you for completing this survey. Your responses will be kept anonymous. The IBA LPRU recognise that recollection of incidents of harassment may be distressing, and encourage participants to seek appropriate support.
122 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 402 CALD Meeting - 4 Oct 2019 Item F01(1) Appendix 2: Regulatory Approaches Compared
Regulatory frameworks governing bullying and sexual harassment differ considerably between jurisdictions. These differences can affect cultural perceptions of acceptable workplace behaviour and the likelihood that targets will be able to access effective remedies.222 During the preparation of this report, the IBA LPRU conducted extensive research into how workplace bullying and sexual harassment is legislated against. This section outlines some of the key approaches to regulating such conduct. To highlight similarities and divergences, it draws upon 11 jurisdictions (Australia, Canada, France, India, Japan, Russia, South Africa, Sweden, the United Kingdom,223 the United States and Uruguay).224 These jurisdictions were selected for their geographical, legal and cultural diversity.
Regulating sexual harassment
Regulators are increasingly recognising the importance of addressing workplace sexual harassment, and this conduct is legislated against in most jurisdictions globally.225 Reflecting this trend, all case study jurisdictions have introduced laws regulating sexual harassment in the workplace, with the exception of Russia.226 While there is no universal definition of sexual harassment, legal definitions are relatively consistent.227 In the jurisdictions examined, all definitions included two key elements: (1) unwanted behaviour of a sexual nature; (2) that has certain effects on the work environment or the target.228 Despite similar definitions, approaches to regulating sexual harassment differ and can be divided into two broad groups – those that regulate sexual harassment as a form of discrimination (the ‘anti-discrimination approach’) and those that regulate sexual harassment through the concept of personal dignity (the ‘dignity approach’).229 These differing approaches to sexual harassment legislation are associated with differing legal cultures and social values.
222 See, eg, Lippel (n 37) 12–13; Power and others (n 37) 378. 223 Strictly speaking England and Wales, noting the distinct legal systems of Scotland and Northern Ireland. 224 Note that while there is some overlap with the Case Study jurisdictions above, it is only partial – this exercise was undertaken separately and so the overlap is merely coincidental. 225 See World Bank Group (n 27) 15; World Policy Analysis Center (n 27) 3. 226 See, eg, Equality Act 2010 (United Kingdom); Labour Code (France); Penal Code (France); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (India); Equal Employment Act (Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment) (Japan); Sex Discrimination Act (Australia); Discrimination Act 2008 (Sweden); Employment Equity Act 1998 (South Africa); Title VII of the Civil Rights Act of 1964 (US); Sexual Harassment Law (Law No. 18,561 of 11/09/2009) (Uruguay); Labour Code (Canada). 227 See McDonald (n 23) 2. 228 See also ibid. 229 For discussion of the equality approach to sexual harassment compared to the dignity approach, see Rosa Ehrenreich Brooks, ‘Dignity and Discrimination: Toward A Pluralistic Understanding of Workplace Harassment’ (1999) 88 Georgetown University Law Journal 1; Elizabeth Anderson, ‘Recent Thinking about Sexual Harassment: A Review Essay’ (2006) 34 Philosophy & Public Affairs 284; Vicki Schultz and others, ‘Global Perspectives on Workplace Harassment Law: Proceedings of the 2004 Annual Meeting, Association of American Law Schools Section on Labor Relations and Employment Law’ (Faculty Scholarship Series Paper No 4976, Yale Law School, 2004).
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CALD Meeting Paper Page 403 CALD Meeting - 4 Oct 2019 Item F01(1) The anti-discrimination approach, which has been adopted in jurisdictions including Australia, Canada, Japan, South Africa and the US, conceptualises sexual harassment as a form of sex-based discrimination. For example, in South Africa, the Employment Equity Act prohibits unfair discrimination based on certain characteristics, including sex.230 As the definition of unfair discrimination includes harassment,231 targets can use this legislation to seek recourse for sexual harassment.232 However, some scholars have criticised the anti-discrimination approach.233 They claim that it excludes certain types of sexual behaviour – for instance, where the perpetrator harasses both men and women or is of the same sex as the target.234
In contrast, the dignity approach focuses on ensuring ‘the employee’s right to respectful treatment at work, rather than her right to equal treatment’.235 For example, in Sweden, sexual harassment is defined as ‘conduct of a sexual nature that violates someone’s dignity.’236 In France, the definition includes ‘[the] act of repeatedly subjecting a person to unwelcome verbal or physical conduct of a sexual nature when such conduct either compromises the victim’s dignity through demeaning or humiliating words or actions, or creates an intimidating, hostile or offensive environment for the victim’.237 This approach is popular in European jurisdictions, which may reflect a broader focus on safeguarding the dignity and autonomy of the individual in these legal cultures.238 However, while the dignity approach arguably offers broader protection, in some circumstances its focus on the individual may ‘fail … to address the underlying structural problems that foster more generalized forms of harassment’.239
Regardless of which regulatory approach is adopted, the efficacy of sexual harassment legislation will depend on who protection is offered to and which entities can be held liable for incidents. All case study jurisdictions impose some obligations on employers, typically by extending liability for incidents of sexual harassment among employees to the employer, unless it can show that it took all reasonable measures to prevent the conduct.240 However, the restrictive scope of some laws mean that only targets with employee status are protected, which can leave contractors, freelancers, volunteers and other third parties without protection. To combat this issue, a number of jurisdictions have expanded the legislative definition of employee or worker for the purposes of sexual harassment provisions.241
230 Employment Equity Act 1998 (South Africa) s 6(1). 231 Ibid s 6(3). 232 See Davies (n 154); Nana (n 151) 247. 233 Tristin K Green, ‘Was Sexual Harassment Law a Mistake? The Stories We Tell’ (2018) 128 The Yale Law Journal Forum 152. 234 See Brooks (n 229) 8–10. 235 See Schultz and others (n 229) 155. 236 Discrimination Act 2008 (Sweden) s 4. 237 Labour Code (France) art L1153–1. 238 See Schultz and others (n 229) 158. See also Uruguay’s approach to regulation of sexual harassment. 239 See Schultz and others (n 229) 191. 240 See McDonald (n 23) 2. See, eg, Equality Act 2010 (UK) s 109; Labour Code (France) art L4121-1; Labour Code (Russia) arts 2, 212; Civil Code (Japan) art 709; Sex Discrimination Act (Australia) s 106; Grobler v Naspers Bpk en ‘n ander [2004] All SA 160 (South Africa); Sexual Harassment Law (Law No. 18,561 of 11/09/2009) (Uruguay) art 4; Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (India) art 19, 26; Discrimination Act 2008 (Sweden) ch 5 s 1. 241 See, eg, Sex Discrimination Act (Australia) s 28G; Code of Good Practice on the Handling of Sexual Harassment in the Workplace (South Africa) s 2; Discrimination Act 2008 (Sweden) ch 2 s 1; Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 (India) s2(f).
124 Us Too? Bullying and Sexual Harassment in the Legal Profession May 2019 CALD Meeting Paper Page 404 CALD Meeting - 4 Oct 2019 Item F01(1) Additionally, several have drafted legislation to extend employers’ liability to situations where a third party perpetrates the harassment, offering additional protection.242
Another factor that may impair the efficacy of sexual harassment regulation is the difficulty associated with proving that the conduct occurred.243 This may be exacerbated by the fact that sexual harassment often takes place behind closed doors. In 2002, France introduced a provision to combat this, shifting the burden of proof. Under the amended law, the target is only required to show a prima facie case, after which the evidential onus shifts to the alleged perpetrator to ‘prove that his/her actions did not constitute such harassment and that his/her decision was justified by objective factors unrelated to any harassment’.244 This may be one way that the evidentiary difficulties associated with sexual harassment can be mitigated.
Regulating bullying
There is significantly less regulatory recognition of bullying than sexual harassment. This is reflected in the case study jurisdictions, only four of which have implemented specific anti-bullying legislation. There are two key approaches to regulating workplace bullying. In many jurisdictions, a ‘vertical’ regulatory model has been adopted, which conceptualises bullying as a less severe form of harassment and offers targets no special legal protections or remedies. The other, ‘horizontal’ model deals with bullying separately to sexual and other forms of harassment, offering specific protections and rights to targets.
Case study jurisdictions, including India, Japan, South Africa, the UK and the US, have adopted a vertical model. For example, in South Africa and the US, bullying targets may be able to access redress through harassment protections in anti-discrimination law, but only where they are bullied on the basis of a protected characteristic.245 This vertical approach has been criticised. Commentators have suggested that targeted legislation offers ‘increased legitimacy … to the issue [of bullying]’, whereas legislative silence ‘sends the wrong message to employers and society’.246 In the US, there is currently a grassroots campaign encouraging state legislatures to introduce a Healthy Workplace Bill to provide a targeted ‘avenue for legal redress for health harming cruelty at work’.247 This legislation is viewed as necessary to ensure employers take the prevention of bullying seriously and implement ‘[anti-bullying] policies and procedures that apply to all employees’.248
Even among jurisdictions that have adopted a horizontal approach and have specific laws to address bullying, regulatory approaches vary. For example, Australia has a relatively broad definition of
242 In 2013 the UK repealed third-party harassment provisions, despite objections from various stakeholders. 243 See, eg, Yuki Noguchi, ‘Sexual Harassment Cases Often Rejected By Courts’, NPR (Washington, DC, 28 November 2017) www.npr.org/2017/11/28/565743374/sexual-harassment-cases-often-rejected-by-courts accessed 14 April 2019. 244 Laurent Guardelli and Caroline Habib, ‘Burden of Proof in Sexual Harassment Cases: Towards a Presumption of Guilt?’, Lexology (London, 28 February 2018) https://www.lexology.com/library/detail.aspx?g=701e69e6-613c-426b- b8e4-810fe84aee37 accessed 14 April 2019. 245 See Shoprite Checkers (n 155); Title VII of the Civil Rights Act of 1964 (US). 246 See Lippel (n 37) 12–13. 247 See Healthy Workplace Bill (n 174) 248 Ibid.
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CALD Meeting Paper Page 405 CALD Meeting - 4 Oct 2019 Item F01(1) bullying, defined as ‘an individual or group of individuals repeatedly behav[ing] unreasonably towards a worker … creat[ing] a risk to health and safety’.249 French ‘moral harassment’ provisions are comparatively specific, regulating only ‘repeated action that intentionally or unintentionally deteriorate[s] … [the target’s] working conditions and [is] likely to violate their rights and dignity, impair their physical or mental health, or jeopardise their professional future’.250 The common element in all definitions of bullying analysed is a requirement to demonstrate harm – that is, that the conduct has had a negative impact on working conditions and/or has caused injury to the physical or mental health of the target. Mirroring inconsistency in definitions of bullying, the remedies available to targets vary significantly between jurisdictions. In Sweden, for example, victimisation provisions offer protection from bullying but do not offer any legal remedy in the case of breach.251 In contrast, targets of workplace bullying in France may receive up to 340,000.252
Other regulations
In addition to anti-bullying and sexual harassment regulation, targets may be able to obtain redress and compensation through other legal avenues. Many jurisdictions, including those analysed, offer protection against sexual harassment and bullying through employment, civil and criminal laws. In Russia, for example, while there is no bullying or sexual harassment legislation, targets may be able to seek redress through general anti-discrimination, criminal and labour laws.253 In all case study jurisdictions, employers owe their employees a duty of care, which can include certain obligations relating to protection from bullying and harassment.254 Contract law can also offer protection, while in some circumstances targets may be able to make personal injury or moral damage claims under civil law. Finally, some countries have criminal provisions that could be capable of capturing bullying and sexual harassment.255 The extent to which these more general regulations can offer protection to targets of bullying and sexual harassment varies significantly between jurisdictions; however, particularly in those jurisdictions without specific bullying or sexual harassment legislation, such indirect approaches will be crucial to protecting targets and offering routes for redress.
This Appendix was drafted by Sophia Collins, based on research undertaken by Sofya Cherkasova. The assistance of Peyton Watts is also gratefully acknowledged.
249 Fair Work Act 2009 (Australia) s 789FD. 250 Labour Code (France) art L1152-1. 251 Organisational and Social Work Environment Provisions (Sweden) s 6; Swedish Work Environment Authority (n 162). 252 ‘Vos Droits: Quelle Indemnisation Suite à un Harcèlement Moral et Physique au Travail?’, ICI-C-NANCY.FR (Nancy 22 April 2014) www.ici-c-nancy.fr/vos-droits-vie-pratique/item/7247-vos-droits--quelle-indemnisation-suite-%C3%A0-un- harc%C3%A8lement-moral-et-physique-au-travail-?.html accessed 14 April 2019. 253 See Chernyaeva (n 142); Erdos Knapp and others (n 146). 254 See, eg, Waters v Commissioner of Police for Metropolis [2000] 1 WLR 1607 (UK); Work Health and Safety Act 2011 (Australia) ss 31–3; Media 24 Ltd & Another v Grobler [2005] 7 BLLR 649 (South Africa). 255 See, eg, Malicious Communications Act 1988 (UK); Penal Code (France) art 222-33-2.
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www.ibanet.org
CALD Meeting Paper Page 410 CALD Meeting - 4 Oct 2019 Item F01(2)
Vi Kacevska
To: Lesley Hitchens Subject: RE: CALD Introduction for Kieran Pender, IBA
From: Kieran Pender
Dear Lesley,
It was a pleasure to speak by Skype last week ‐ thanks for your time and interest in possible collaboration.
To follow up on two notes:
A) Please find attached some slides which may assist in your raising these issues at the next meeting of the Council of Australian Law Deans;
B) I would be most appreciative if you could explore having a panel on these matters and the role of academics/universities in promoting change in the profession, as part of the ALAA conference next year. If that was agreeable with the relevant organisers, I could investigate whether I might be able to schedule my movements to enable my attendance to speak on the IBA’s work. If that was not possible at my end, I would happily arrange for another collaborator to appear on my behalf. Possibilities would include Kate Eastman SC, Fiona McLeod SC or Professor Margaret Thornton.
Thanks and I look forward to remaining in contact.
Kind regards, Kieran
Kieran Pender Senior Legal Advisor, Legal Policy & Research Unit International Bar Association
From: Kieran Pender Sent: 25 August 2019 09:55 To: Lesley Hitchens Subject: Re: CALD Introduction for Kieran Pender, IBA
Dear Lesley,
No worries at all ‐ as someone who travels frequently I can very much appreciate the pain of an inbox pile‐ up.
1
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The partner frequently caused younger staff to burst into tears. Incessant, frequent unreasonable demands and criticism, hyper-'red penning' etc were common. He was a high performing partner and the firm was at best indifferent to this issue. It was well known amongst recruitment consultants that the firm was a 'burn and churn' firm.
Male, law firm, Australia
There is a senior partner at my firm who famously harasses young women particularly when he has been drinking at social events. I was groped on two separate occasions. After nothing was done about it the first time I reported it, I did not report it the second time. The same partner has groped 3 other women at this firm.
Female, law firm, Australia
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A barrister attempted to rape me after a conference. I successfully fought him off – dress torn, bruised. I did not report it … my career would have been ended had I made a formal complaint against a very senior and very highly respected counsel.
Female, law firm, Australia
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The survey
■ ~7,000 respondents from 135 countries
The legal profession has a problem
■ Bullying and sexual harassment are common across all regions and workplace types ■ 36% of bullying cases and 26% of sexual harassment cases included incidents occurring within the past year
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Perpetrators
■ Supervisors were the most frequent perpetrators of bullying ■ Most incidents of sexual harassment were perpetrated by non-supervisor senior colleagues ■ Relative to bullying, colleagues of equal seniority and junior colleagues were significantly more likely to be the perpetrators of sexual harassment
The partners closed ranks around the perpetrator. The firm did nothing to sanction him and later promoted him into a more senior, but marginally less public position. They offered me no support or reassurances about my career if I stayed at the firm. I felt I had no choice but to leave. Female, law firm, United Kingdom
Reporting
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Workplace Response
■ When targets report, workplace responses are inadequate – In three quarters of cases, the perpetrator was not sanctioned – The majority of targets rated their workplace’s response to incidents of bullying and sexual harassment as insufficient or negligible
This is hurting the profession
■ The legal profession is losing talent – targets are leaving their workplaces and the law altogether ■ 65% of respondents who have been bullied and 37% of respondents who have been sexually harassed left or are considering leaving their workplaces.
The sexual harassment I have experienced has contributed to my depression. It has made me less trusting of colleagues or willing to participate in professional and social events. Female, law firm, United States
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Australia
■ Prevalence rates significantly above the global average ■ 73% (55%) of female respondents and 50% (30%) of male respondents had been bullied ■ 47% (37%) of female respondents and 13% (7%) of male respondents had been sexually harassed ■ Perception paradox?
WHAT NOW?
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1. Raise Awareness 6. Gather Data and Improve Transparency 2. Revise and Implement Policies and Standards 7. Explore Flexible Reporting Models 3. Introduce Regular, Customised Training 8. Engage with Younger Members of the Profession 4. Increase Dialogue and Best- Practice Sharing 9. Appreciate the Wider Context 5. Take Ownership 10.Maintain Momentum
This important report is a clarion call for urgent action. I urge you to absorb its facts and findings and then make a difference.
Julia Gillard
7 CALD Meeting Paper Page 418 CALD Meeting - 4 Oct 2019 Item F01(2)
There should be absolutely no place in this profession, nor any other, for bullies or sexual harassers. At the very least, people deserve dignity and a safe, supportive environment in return for their work.
Female, United Arab Emirates
8 CALD Meeting Paper Page 419