THE LAW SOCIETYOF NEW SOUTH WALES

Our ref: HRC/DHas: 1616724

11 December 2018

Mr Jonathan SmithersChief Executive OfficerLaw Council of AustraliaDX 5719 Canberra

By email: emma.hlubucek@lawcouncil.asn.au

Dear Mr Smithers

National Inquiry into Sexual Harassment in Australian Workplaces- final submission

Thank you for the opportunity to contribute to the Law Council of Australia’s submission tothe Australian Human Rights Commission (‘AHRC”) inquiry into sexual harassment inAustralian workplaces (“the Inquiry”).

This letter represents the position of the Law Society with respect to the terms of referencefor the Inquiry. In some instances, the provisional recommendations contained in our letter tothe Law Council of 5 October 2018 have been refined. We therefore request you refer to thematerial in this letter rather than our preliminary response.

The material in this letter is informed by our Employment Law, Human Rights, and Diversityand Inclusion Committees.

Prevalence, nature and reporting of sexual harassment in the legal profession inAustralia

In addition to state and federal legislation prohibiting sexual harassment, solicitors inAustralia are bound by the Australian Solicitors’ Conduct Rules, which at rule 42 requiresthat “a solicitor must not in the course of practice, engage in conduct which constitutes:discrimination; sexual harassment; or workplace bullying”.

Notwithstanding this unambiguous rule, sexual harassment is a persistent issue within thelegal profession in Australia. In 2018 the International Bar Association (“IBA”) surveyedalmost 7,000 legal professionals around the world on their experience of sexual harassmentat work. In Australia, 934 legal professionals completed the survey, and the results revealedthat around one third (37%) of lawyers in Australia disclosed they had been sexuallyharassed while at work or in work-related contexts. The results illustrated that womenworking in the law in Australia disclosed experiencing sexual harassment at a far greaterrate than men: 47% of women disclosed being sexually harassed, compared with 13% ofmen. This compares with the global rate of 37% for women working in the law, and 7% formen.

The International Bar Association survey also found that sexual harassment goes unreportedin 77% of cases. Of those who did report the harassment, 73% said their employer's

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response was either insufficient or negligible. Of respondents who had disclosedharassment, 38% expressed an intention to leave their workplace as a result. On a globalbasis, 44% of people who had been harassed in legal workplaces reported that theperpetrator was “more senior” than them; in 19% of cases the perpetrator was someone ofequal seniority, and in only 4% of cases was the person responsible for the harassmentsomeone junior.

From October to November 2018 NSW Young Lawyers conducted a separate survey onyoung lawyers’ experiences of sexual harassment in the workplace. The survey wasdistributed to the NSW Young Lawyers mailing list, and received 125 responses. Over halfof respondents (51%) disclosed having been sexually harassed in the workplace, and 25%had witnessed another person being sexually harassed. Of those who disclosed anexperience of sexual harassment, less than 30% made a complaint. The reasons for notpursuing a complaint were elaborated on by some of the respondents. One wrote that:

“It was embarrassing, and I did not want the stigma of being a complainer or toosensitive. I thought that complaining would be considered a 'weak female1 response.”

Another respondent raised the power imbalance faced by young lawyers as a deterrent toformal reporting.

"It is impossible to make a complaint against a partner in a law firm for whom youwork. HR has no power as the partners are the owners of the company. I fearedretaliation”.1

When asked how sexual harassment in the workplace could be eliminated or reduced,respondents to the NSW Young Lawyers survey provided four key suggestions: education ofemployers and employees on what sexual harassment is, how to report it, andconsequences; cultural or attitudinal change, including systemic change led bymanagement; strong disciplinary measures; and reducing alcohol consumption at work-related events. The Law Society understands that NSW Young Lawyers will be providing asupplementary submission outlining the results of its survey, and recommendations, infurther detail.

Legislative reform to improve the legal framework to better address sexualharassment in Australian workplaces

Please find attached at Annexure A the Law Society’s recommendations with regard to keyaspects of the framework addressing sexual harassment - at a state, federal andinternational level.

Recommendations organisations can adopt to prevent and respond to sexualharassment in the workplace

The Law Society suggests that organisations develop and commit to organisation-wideframeworks to reduce the risk of sexual harassment occurring in the workplace andencourage a safe and respectful workplace that is free from harassment. Such a frameworkmight include the following:

1) Recognition of the benefits of a safe and respectful workplace free from harassment anddiscrimination where the organisation does not tolerate sexual harassment.

1 NSW Young Lawyers Human Rights Committee, ‘Sexual Harassment in Australian Workplaces SurveyResults’ (November 2018).

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2) Workplace policies addressing sexual harassment which include a set ofvalues/principles for standards of conduct in the workplace, a clear definition of sexualharassment and details of whistleblowing or ‘speak up’ procedures.

3) Training programs for all staff which support workplace policies at least every two years,with tailored programs for management, given their heightened responsibilities.

4) Effective procedures which support organisational objectives and policies, including arobust and effective complaints mechanism and investigation procedures.

5) Reporting mechanisms to capture data in relation to complaints of sexual harassment inthe workplace.

6) Procedures which finalise the complaint with the complainant once any investigation hasconcluded, and include the provision of appropriate support to the complainant throughan employee assistance program or external providers. Any disciplinary outcomesshould also be documented.

7) A feedback mechanism for staff to make comments and suggestions for improvements inrelation to the organisation’s approach to combatting sexual harassment.

Thank you for the opportunity to provide input on this issue. Should you have any questionsor require further information please contact Andrew Small, Policy Lawyer on (02) 9926 0252or email andrew.small@lawsociety.com.au.

Yours sincerely

Doug Humphreys OAMPresident

Enc.

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Annexure A: Recommendations of the Law Society of NSW for improving the legalframework with respect to preventing and responding to sexual harassment

a) Federal framework

Issue Identified RecommendationAustralian Human Rights Commission Act1986 (Cth) (“AHRC Act”) s 46PH(b).

Amend s 46PH(b) of the AHRC Act toreinstate the 12-month time limit that wasin place prior to passage of the HumanRights Legislation Amendment Act 2017(Cth).

The ability of the President of the AustralianHuman Rights Commission (“AHRC”) toterminate a complaint if it is not broughtwithin six-months of an alleged act orpractice taking place acts as a barrier forindividuals who wish to seek redress forsexual harassment at work.

Promoting employer accountability andaddressing systemic discrimination.

To address systemic discrimination, theAHRC should be given the power toconduct own-motion investigations of whatappears to be unlawful sexual harassmentunder the SDA, and the power tocommence court proceedings withoutreceiving an individual complaint.

Currently, employers can only be heldaccountable for failing to take all reasonablesteps to prevent sexual harassment throughthe vicarious liability provisions of the SexDiscrimination Act 1984 (Cth) (“SDA”). Underthe Anti-Discrimination Act 1977 (NSW)(“ADA”), the vicarious liability provisions areeven narrower, with employers onlyvicariously liable if they expressly or impliedlyauthorise the act of sexual harassment.

Fair Work Act 2009 (Cth) (“FWA”) s 351. Section 351 of the FWA should beamended to include sexual harassment inthe definition of “adverse action”.Sexual harassment is not directly covered by

the general protections provisions of the FairWork Act 2009 (Cth) (“FWA”). The definitionof “adverse action” does not explicitly includesexual harassment, and while the protectionsagainst discrimination in s 351 of the FWAprohibit adverse action due to sex, it is notclear whether sexual harassment isprohibited by this section.

Intersectional discrimination. The Commonwealth Government shouldconsider consolidating federal anti-discrimination law to address all theprohibited grounds of discrimination,including sexual harassment. Thedefinition of discrimination under anyconsolidated act should includeintersectional discrimination.

The SDA and ADA do not recognise theways in which individuals may experiencecompound or intersectional forms ofdiscrimination. Where an individual seeks toclaim more than one form of discrimination,they must take action where each groundand each form of discrimination is examinedin isolation. This may act as a further barrierto minority groups who experience sexualharassment along with discrimination based

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Issue Identified Recommendationon other protected attributes from pursuing aclaim.

The Parliament of Australia should passLaws

(Enhancing Whistleblower Protections) Bill2017, which is currently before the Senate.This would require public companies andlarge proprietary companies to have awhistleblower policy and to make thisaccessible to all employees, and imposespenalties for non-compliance.

Whistleblower protections.the Treasury Amendment

Whistleblower protections are lackingparticularly in the private sector.

The AHRC should consider introducingcompulsory reporting requirements so acompany’s board and a relevant externalbody receive regular updates on sexualharassment incidents and claims.

Lack of public accountability.

There is presently no formal requirement forcompanies to regularly report sexualharassment statistics and claims internally orexternally.

Subject to any constitutional limitations,the Commonwealth Government shouldamend the SDA to:

o Provide coverage to an employeeof a state or a state instrumentality,as recommended by the SenateStanding Committee on Legal andConstitutional Affairs in their 2008Inquiry into the effectiveness of theSDA; and

e Provide coverage for volunteers,interns, and other categories ofunpaid workers.

Expand the application of the SDA.

State-based public servants are not able tomake a claim under the SDA for sexualharassment that occurs within theirworkplace.

The discrimination and sexual harassmentprovisions of the SDA do not currentlyprovide explicit coverage for volunteers andother types of unpaid workers.

b) International framework

Issue RecommendationILO Convention on the Elimination ofViolence and Harassment in the World OfWork.

The Commonwealth Government should:a) vote to adopt the new ILO

Convention and Recommendationon the elimination of violence andharassment in the world of work atthe 108th session of theInternational Labour Conference inJune 2019; and

b) if the Convention is adopted, takeaction to ratify it and incorporate itinto domestic law.

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c) General recommendations

RecommendationssueResourcing of the AHRC. The Commonwealth Government should

adequately resource the AHRC so it caneffectively carry out its investigation,complaint and conciliation functions.

The AHRC remains significantly under-resourced, with complaints regularly takingfive to six months to reach a conciliationhearing.

Promoting uniformity in state and territoryanti-discrimination legislation.

State and territory governments shouldamend their anti-discrimination legislationto ensure harmonisation betweenjurisdictions. This process should seek toharmonise best practice, rather than alowest common denominator approach.

Each state and territory in Australia hasenacted anti-discrimination legislation thatoutlaws sexual harassment. While the lawsare largely similar, some significantdifferences exist. One notable area ofdivergence is the damages cap: in NSW,there is a cap on damages under the Anti-Discrimination Act 1977 (NSW), while inother states there is no such cap.

This creates difficulties for individuals as towhere to commence their action. Similarly,respondent organisations face the complextask of ensuring their policies and operationscomply with multiple pieces of legislation.

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