On 22 May 2024, SafeWork NSW released the “Psychological Health and Safety Strategy 2024–2026” (“SafeWork Strategy”), naming bullying and harassment as primary psychosocial hazards within the meaning of cl 55A and 55B of the Work Health and Safety Regulation 2017 (NSW) and finding that such workplace psychological injuries had risen by 30 per cent since 2018–2019, costing NSW $2.8 billion per annum.

The SafeWork Strategy incorporated the 2021 SafeWork NSW “Code of Practice: Managing Psychosocial Hazards at Work” and applies to persons conducting a business or undertaking (PCBU) as defined under s5 of the Work Health and Safety Act 2011 (NSW) (WHS Act), including barristers, barristers’ chambers, and law firms.

In June 2024, SafeWork NSW introduced a further “Code of Practice aimed at eliminating sexual and sex-based harassment”, complementing the 2016 Safe Work Australia “Guide for preventing and responding to workplace bullying”. These contain expansive definitions of bullying and harassment, capturing a broad range of intimidating and aggressive conduct, with that conduct often the hallmarks of the legal profession.

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Tellingly, in June 2021, the AFR reported that SafeWork NSW had deemed the legal profession a “high risk” profession, including because of the exposure of legal practitioners to bullying and harassment.

Stark warnings

The message from regulators is clear: bullying and harassment are the source of serious identifiable levels of harm in the legal profession and must be addressed, with rates of that harm recently rising significantly. In May 2024, SafeWork NSW was reported by The Guardian to be “pledging to crack down on big business” in respect of bullying and harassment.

In a similar vein, in September 2023, in an AFR interview, the federal sex discrimination commissioner put the legal profession “on notice” that it “would be targeted” under the positive duty enforceable from December 2023 under Part IIA of the Sex Discrimination Act 1984 (Cth) (the SD Act) to take “reasonable and proportionate measures to eliminate, as far as possible”, discriminatory conduct. Like the SafeWork NSW Strategy, the positive duty is also applicable to employers and PCBUs.

Key conduct proscribed by the SD Act is also absorbed into rule 123(1) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 and rule 42.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 because of the expansive associated definitions. Both rules also prohibit workplace bullying, with the definition of bullying applicable to rule 123(1) being a far lower benchmark for complainants to meet than under other legal definitions.

The stark warnings from regulators follow years of alarming findings, showing that bullying and harassment are “rife” in the Australian legal profession, with “significantly higher” rates than global averages, according to the 2019 International Bar Association report, Us Too: Bullying and sexual harassment in the legal profession.

Increasing rates of bullying and harassment

In 2014, the Law Council of Australia’s National Attrition and Re-engagement Study (2014 NARS Report) found that 50 per cent of Australian women legal professionals surveyed reported being bullied and 24 per cent had experienced sexual harassment (p32), while a staggering 80 per cent of women barristers surveyed across Australia had experienced bullying and 55 per cent had experienced sexual harassment.

In 2019, the Us Too? report found that 73 per cent of Australian women legal professionals identified as having been bullied and 47 per cent reported being sexually harassed throughout their legal career. This indicated a dramatic rise since the 2014 NARS Report, with the 2022 IBA follow-up report, Beyond Us Too? finding that bullying and harassment in the legal profession are “endemic” and the responsibility of “every member” of the profession to address.

For bullying, these rates were found in late 2023 to have remained about the same, with a Lawyers Weekly survey identifying that, of the almost 800 legal professionals responding, 72 per cent said they had been bullied, leading Law Council of Australia then-president Luke Murphy to observe that such surveys “reinforce why work” must continue.

Extraordinarily, in 2021, Australia again ranked first globally when a Lloyd’s Register Foundation-Gallup survey of 121 countries, “Safe at Work?”, found 49.1 per cent of Australians surveyed experienced workplace violence or harassment, following which Australia ratified ILO Convention 190 concerning the elimination of workplace violence and harassment in 2023.

In 2023, the University of Sydney/ANU Designing Gender Equality into the Future of Law report observed that “gendered discrimination, disrespect, and harassment remain stubbornly entrenched” in the legal profession.

Identifiable causes?

In her 2023 doctoral thesis, Regulating to Prevent Workplace Bullying: Options for Reform, Victorian barrister Dr Nadia Stojanova identified three “precursor factors” necessary for workplace bullying to occur, being the presence of a perpetrator, a target unable or unwilling to leave the workplace and the failure of a workplace to intervene to stop bullying conduct, observing a “dark triad” of personality traits were often characteristics of perpetrators.

Why have the rates increased?

The staggering increase in the rates identified in the 2014 LCA NARS Report to the 2019 IBA Us Too? report from 50 per cent to 73 per cent (in respect of bullying) and from 24 per cent to 47 per cent (in respect of sexual harassment) may be attributable to the intervening MeToo movement in 2018, which improved awareness, according to the 2022 Beyond Us Too? report. The shift to online work, including as a result of the pandemic, was also posited in 2021 and 2023 Lawyers Weekly articles as potentially having resulted in an increase in workplace bullying in the legal profession.

A factor could also be the omission in 2015 from the Uniform Law regime of the mandatory bullying, harassment and discrimination training of NSW legal professionals required under former Regulation 176 of the Legal Profession Regulations 2005 (NSW), which has not been replaced. These “regulatory gaps” were identified by Stojanova in her Regulating to Prevent Workplace Bullying thesis.

Notably, while the time periods over which the data in the above surveys was sought are not identical, with higher rates to be expected where survey questions were aimed at longer periods of time, and definitions of bullying and harassment are inconsistent or absent, the surveys above nonetheless show concerning increases.

Solutions?

In 2021, the NSW government introduced free online tools to assist with managing psychosocial hazards, including bullying and harassment, such as the “Code of Practice: Managing Psychosocial Hazards at Work”, free training and coaching for workers and managers and free mental health first aid courses.

In 2023, both the NSW Bar Association and the NSW Law Society adopted versions of the NSW government’s free mental health first aid course, with the stated aim of such courses (for instance, the Mental Health First Aid Australia course) being to enhance wellbeing by equipping participants with the skills to listen, connect and support (the Wellbeing Courses).

The Wellbeing Courses are well-positioned to constitute a safe system of work practice, or operate in conjunction with one, aimed at managing hazards such as bullying and harassment.

In June 2024, the Mental Health Coach said that such courses are capable of combating bullying by fostering open, transparent communication, creating a supportive and inclusive workplace, providing support for targets and perpetrators (by redirecting and helping them to understand the impact of their behaviour) and encouraging bystander intervention.

The Wellbeing Courses may be ideal for educating legal professionals on their obligations to reduce harm in the form of bullying and harassment, in line with the strategic goals and actions in the SafeWork Strategy, and could be dovetailed with the other free online NSW government tools.

Penny Thew is a Sydney-based barrister, practising out of State Chambers.