When launching the proposal in August 2024, the ABA said that “there is abundant academic research identifying a perpetrator’s poor mental health and lack of self-regulation as a contributing factor in his or her inappropriate behaviour” and that the broader training could improve “barrister civility and standards of practice by fostering self-awareness, empathy, and a respect for others”.

‘Broification’, ‘bro culture’, and global DEI resistance

Mandatory equality and wellbeing education addressing drivers of perpetrator bullying and harassment is timely. The concerning global resistance to diversity, equality and inclusivity (DEI), as well as wholesale moves to adopt “bro culture” and “broification” of the workplace at an “almost super-sonic rate”, all support implementation of education focused on respect, empathy and awareness.

Commendably, major Australian law firms have said that DEI in Biglaw is ‘not going away’, with reminders that “diverse teams make better decisions, innovate faster, and outperform homogenous teams” and “inclusion drives engagement, collaboration, and trust”. Centrally, DEI in the legal profession has proven to be not only good for the workplace legally and culturally but also highly valued by clients and good for business and client growth.

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Entrenched gender pay gap

The ABA’s proposal could assist in minimising the entrenched gender pay gap across the Australian bars, demonstrated most recently in the Law Council of Australia’s 2024 Equitable Briefing Policy Annual Report, released on 20 February 2025.

The causal nexus between higher gender pay gaps and discriminatory practices and conduct, with the underpinning theme of both being gender inequity and undervalue, is well established, according to the LCA 2023 Equitable Briefing Policy Annual Report (p29) and the 2022 Workplace Gender Equality Agency, Diversity Council Australia, and KPMG report, She’s Price(d)less: The economics of the Gender Pay Gap (pp9, 60).

The 2024 LCA equitable briefing annual report found that women barristers received only 22 per cent of the $1.8 billion in fees paid to barristers (by reporting entities) in the 2023–24 financial year. This is a decrease from 26 per cent received by women barristers in the 2021–22 FY, although a slight increase from the 20 per cent received in the 2022–23 FY, but below levels five years ago, when women earned 23 per cent of all fees for the 2019–20 FY.

While there has been an overall increase for women barristers in the nine years since the commencement of the equitable briefing scheme in 2016 (from 15 per cent to 22 per cent of all fees paid by reporting entities and from 20 per cent to 31 per cent of all briefs received, correlating somewhat with the increased proportion by percentage of women barristers over that period), the trajectory since about 2020 is disappointingly heading the wrong way.

The true gender pay gap for barristers (even in approximate terms) is unfortunately not identifiable based on the equitable briefing data alone, nor in the absence of publication of data collected by bar associations in recent years.

However, the WGEA publication on 4 March 2025 of private sector data for businesses with 100 or more employees demonstrates a median total remuneration gender pay gap of 17 per cent for the legal sector (which would exclude self-employed barristers), making it higher than the national median total remuneration gender pay gap of 16.7 per cent. This is a slight improvement on WGEA 2024 data, which showed a 17.5 per cent median total remuneration gender pay gap in the legal sector. If the legal sector gender pay gap closes at its current rate of half a percentage point per annum, we may have legal sector gender pay parity in 34 years, by 2059.

Entrenched bullying and harassment

The ABA proposal is crucial in the face of repeated evidence of entrenched bullying and harassment in the legal profession. In January 2025, following the release of the 2024 “Review of Harassment in the Legal Profession in South Australia”, it was said that “nothing has changed”, with “bullying, discrimination and harassment in law still rampant”.

The report disturbingly identified that (in the past three years alone), 39.2 per cent of respondents (women and men combined) had experienced bullying, 20 per cent had experienced discrimination (mostly on the basis of sex, but also on the basis of age, caring/parental responsibilities and race) and 16.3 per cent had experienced sexual harassment. The rates more than doubled when the period surveyed extended to the whole of career (p69). Unsurprisingly, claims on insurers Australia-wide for workplace bullying and harassment increased by 61 per cent between 2019 and 2023, with the quantum of individual claims also increasing.

The 2024 SA Review findings are an improvement on a December 2023 national Lawyers Weekly poll, which found that 72 per cent of those responding had experienced bullying. They are also an improvement on the most recent global report in 2019, which found that 73 per cent of Australian women legal professionals identified as having been bullied throughout their legal career and 47 per cent reported being sexually harassed. Nonetheless, concerningly, in 2024, the NSW Bar Association Annual Report showed that bullying and harassment services provided by BarCare to barristers roughly doubled since 2022 (p28).

For about a decade, global and national data has demonstrated that bullying and harassment across the Australian legal profession have trended up and remain at seriously high rates, with both the Australian Human Rights Commission and SafeWork NSW declaring that they are targeting the legal profession.

The heightened focus by SafeWork NSW on the elimination of workplace bullying and harassment is starkly illustrated by the 2024 NSW District Court decision imposing a $300,000 penalty on a care provider for failure to mitigate the risks of workplace violence in breach of the Work Health and Safety Act 2011 (NSW).

Changing nature of bullying and harassment

While the prevalence of bullying and harassment remains unabated, it appears to be nonetheless changing to be increasingly insidious. In his November 2024 article, “Putting an end to Baby Reindeer-like workplace stalking”, Lawyers Weekly journalist Kace O’Neill described the increased occurrence of workplace stalking in Australia and how the sinister workplace conduct has in the past been caught by s21A of the Crimes Act 1958 (Vic), similar to ss7, 8 and 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Both statutes generally make it an offence to stalk, intimidate or harass with intent to cause fear, including “by watching or frequenting of the vicinity of” a person’s business or workplace, tracking or following, loitering around the workplace, publishing material about the target and/or keeping the target under surveillance, to intimidate.

In 2024, NSW Bureau of Crime Statistics and Research data indicated a 36 per cent increase in stalking charges during the preceding 12 months alone, with data reported in 2023 showing a general increase in cyber stalking. Australian Bureau of Statistics 2024 data showed that one in seven Australians had been stalked, with women eight times more likely to be targeted.

Drivers of bullying and harassment

Similarly to the ABA-cited research demonstrating perpetrator traits driving bullying and harassment, in a 2023 doctoral thesis, Victorian barrister Dr Nadia Stojanova found that a “dark triad” of personality traits were often characteristics of perpetrators, with those traits “relatively muted” and “harmful to victims but more difficult to identify and manage in the workplace”. The failure of a workplace to intervene is said to be a “precursor factor” to the conduct occurring.

Relatedly, in 2024, in his article “Workplace Bullies Target Self-Directed Coworkers Most”, Araya Baker observed that valued workers who “already stand out” often become targets of intentionally harmful “deliberate manipulation”. Baker found that “the most likely target of workplace bullying is the kind of worker many employers dream of: workers who are highly self-sufficient, judicious, and creative, and who demonstrate internal motivation, possess a benevolent worldview, and refrain from office politics and one-upmanship. In a word, the self-directed.”

Likewise, in a 2022 Harvard Business Review article, “How bullying manifests – and how to stop it”, it was said that “… the actual star performers are more likely to be targets than bullies. Bullies are usually mediocre performers …”

Some solutions: ABA training and the 7 AHRC Standards

A key to addressing these serious issues could flow from the ABA’s proposal, aimed at improving awareness, connection, empathy and communication to assist perpetrators address their conduct and reduce the likelihood they will engage (or continue to engage) in that conduct.

The ABA’s proposal is intended to be incorporated into the Legal Profession Uniform Continuing Development Rules (Barristers) 2015, thereby covering barristers in NSW, Victoria and Western Australia. It could be adopted as a template for other parts of the legal profession. South Australia, the Northern Territory and Tasmania (fused professions) have implemented similar schemes.

The ABA training could assist persons conducting a business or undertaking (PCBUs) to comply with their significant obligations under the Sex Discrimination Act 1984 (Cth) positive duty as well as under s19 of the WHS Act. Law firms, sole practitioner solicitors, barristers and barristers’ chambers are all PCBUs.

The ABA training can dovetail with, and assist PCBUs in satisfying, the seven Standards and four Guiding Principles developed by the Australian Human Rights Commission (AHRC), said in the AHRC’s 2023 Guidelines for Complying with the Positive Duty under the SD Act to “outline what the AHRC expects organisations and businesses to do to satisfy the positive duty” under the SD Act.

The ABA proposal could also be utilised in tandem with pre-existing workplace policies such as the NSW Bar Association’s Revised Model Best Practice Guidelines, with care taken to review such frameworks to ensure compliance with the SD Act positive duty (including having regard to the seven Standards and four Guiding Principles) as well as the WHS Act.

Significantly, the substantial scope of both the ABA proposal as well as the seven Standards (each dealing with ‘leadership’, ‘culture’, ‘knowledge’, ‘risk management’, ‘support’, ‘reporting and response’ and ‘monitoring, evaluation and transparency’) is such that implementation of the Standards dovetailed with the ABA training could assist in all obligations on PCBUs.

Penny Thew is a Sydney-based barrister.