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Legal Services Commissioner vows to be ‘real instigator’ for changing sex harassment culture

With 33,000 practising solicitors in New South Wales, regulation alone cannot police sexual harassment — change must come at a cultural level, which the state’s Legal Services Commissioner wants to help drive.

user iconJerome Doraisamy 20 June 2019 Big Law
Legal Services Commissioner vows to be ‘real instigator’ for changing sex harassment culture
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In conversation with Lawyers Weekly, Commissioner John McKenzie (pictured), of the Office of the Legal Services Commissioner, said there will never be enough regulators with enough resources to “be the policeman on the beat” eradicating workplace misconduct in the legal profession.

As such, he said, the LSC is aiming to contribute to changing the culture within the profession so that, moving forward, the issue is dealt with “where it should always be dealt with”, at the legal practice level.

“We want to be a real instigator to [change]… so that there is a culture in place in every law practice that actively persuades and lets it be known that it is simply not acceptable for this behaviour to take place, and to as far as possible, to eradicate it in the first place, but at the same time noting human nature as it is and that there’s never going to be a perfect solution like that,” he said.

“It’s our end goal that every law practice has not only policies but real procedures and nominated people who may be suitable for the task of being the confidential person who the person subjected to this type of behaviour can, with great confidence, go to in a very confidential manner so that there is a far greater and more supportive treatment of the reporter, and more serious acceptance that the huge overwhelming majority of all such reports are accurate and are not made up, and to take them seriously, and to put into place the appropriate response from the law practice leadership and principles.”

Mr McKenzie’s comments follow this week’s callout in NSW for disclosures via its new telephone service, through which persons can make informal disclosures (anonymous, if desired) to trained professionals about conduct issues in legal workplaces.

When asked why OLSC has set up the telephone service for NSW practitioners, Mr McKenzie said that, as the supervising legal regulator in the state, he receives a “very small number of formal complaints”.

Formal complaint numbers remain low, he explained, because “the people who are the subject of this harassment and bullying are junior and often young in years, but not necessarily terribly young. It’s all a relative thing about power”.

“In the legal profession, reputation is such an important thing for ones career and ones career progression. Unfortunately, what appears to be the care is that although the incidents, I accept, is really unacceptably high of this behavior, and thats been disclosed in research survey after research survey, he said.

“But the figures that are consistently reported from confidential reporting of such surveys seriously over an excess if the actual formal complaints that we actually get. And I, as a regulator, wanted to try and change this dynamic so that Im not waiting on simply formal complaints to come in, but Im wanting to start to at least open avenues to people who have either suffered this behavior or have witnessed it, to start disclosing what their comfortable in disclosing with us on the assurance that they will control what we do with the information.”

It may well be, he mused, that after a “good, supportive interaction with trained staff” that a person may not wish to take a complaint further and formalise it, but — from a data perspective — OLSC can be in a better position to appreciate the context around the reporting of such matters.

“So, Im interested in seeing if I start to get a real, shall we say, pattern of similar complaints about one law practice, even though the people are not wanting to go on the record themselves individually, nor wanting to name perhaps any individual perpetrators.”

The regulator will continue to explore the most supportive and hospitable mediums through which disclosures can be made about workplace sexual harassment, Mr McKenzie continued, so as to ensure cultural change can be fast-tracked.

Later this year, he noted, OLSC will be launching an online platform for self-reporting in a confidential fashion, which will be done in conjunction with PyschSafe principal consultant Dr Rebecca Michalak.

In acknowledging the work of advocates like Ms Michalak, Mr McKenzie said the legal profession and its regulators must accept that, as a whole, it “has been unfortunately not mindful enough of the serious situation that has been the reality for really quite some time”.

“Our responsibility is in a very real sense, to take constructive action wherever we come upon instances that the law is not being followed in a very, very serious manner that deals with the entitlement of every person, and that includes every lawyer and every non-lawyer who works in a law practice, to have a safe working environment,” he concluded.

Earlier this week, Lawyers Weekly reported that a lack of continuity and communication between the different stages of criminal justice is throwing up a number of barriers to sexual assault survivors navigating Australia’s justice system.

jerome.doraisamy@momentummedia.com.au

Jerome Doraisamy

Jerome Doraisamy

Jerome Doraisamy is the managing editor of Lawyers Weekly and HR Leader. He is also the author of The Wellness Doctrines book series, an admitted solicitor in New South Wales, and a board director of the Minds Count Foundation.

You can email Jerome at: jerome.doraisamy@momentummedia.com.au 

Comments (6)
  • Avatar
    How about taking a proactive role in overseeing general compliance by Big 4 accounting firm lawyers when they act for several competing parties to the same transaction. Do you think they comply strictly with the "informed consent" requirements of the Uniform Law / Code of Professional Conduct when there are huge fees involved and zero oversight (aside from trust account audits) by anyone? Think again....
    1
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    I agree with anonymous It should not stop with sexual harassment but all forms of bullying harassment and intimidation which can be perpetrated not just on juniors but seniors as well. Unfortunately whistleblowers of any form of misconduct tend to become ostracised by colleagues in the profession hung out to dry and driven out of the profession
    1
  • Avatar
    Having practiced law for thirty five years I take offence at any suggestion that there is a culture of sexual harassment in our profession. I have seen little evidence of it. There will always be people who are in positions of power who shall seek to use their position to satisfy their base urges, but to call this a 'culture' within the profession is to slander us all.
    -5
    • Avatar
      Having practised law as a female for thirty-plus years myself, you're either blind or disingenuous. It's a massive problem and it's endemic.
      4
    • Avatar
      Perhaps there are some reasons you have not observed it. Sometimes our personal observations are not necessarily representative of the broader picture (not a criticism of you personally - just generally one person's experience can be biased or skewed, as most people tend to hang around with people like themselves).

      Perhaps you have never seen it because:
      1) It often happens behind closed doors. As such if you are not perpetrating it, then you may not have had any reason to see it. That does not mean it isn't happening.
      2) Perhaps there are some comments that didn't register to you as potentially upsetting, but upset the person who heard the comment. I am sure there are insults someone could direct at me that I wouldn't care about but might deeply upset you, and vice versa. Some of the relatively 'milder' forms of sexual harassment are off-colour or inconsiderate comments that may not offend some people, but may make others uncomfortable.
      3) If you haven't worked for an extended period in a medium-large sized firm, perhaps you have not worked in a firm where it happens. It seems to be more of a problem in larger firms.
      4) Even if you have worked in a larger form, perhaps no one reported it to you personally, or reported it to another manager.

      I personally have never been the victim of sexual harassment (fortunately). There are women (and some men) who have raised these issues. I think its probably part of a broader issue of bullying and discrimination within the profession - which I have seen and experienced. You are right that this is not *just* a problem within law. But as a profession we shouldn't just accept it as "business as usual" - but expect a high standard of professionalism from our colleagues.
      5
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    This is really good. It needs to be extended to bullying and harassment in Law firms generally. Those in positions of power need to start realising that the game is now up and their behaviours will need to change if they want to keep practising. The days of NDAs and staff members being moved on to protect partners needs to be a thing of the past.
    10
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