Ripples from the sexual harassment allegations against former High Court Justice Dyson Heydon continue to spread. This week, the Victorian government announced its intention to launch reviews into both sexual harassment in the state court system and the practices of law firms delivering services to the government.
These follow close on the heels of a roundtable, hosted last week by the Law Council of Australia, at which it committed to developing a national model sexual harassment policy and guidelines and enhancing professional training.
Welcome though these measures are, they are overdue. Harassment isn’t new. Surveys, including by the International Bar Association and the Victorian Legal Services Board and Commissioner (VLSB) have identified that law has a deep and long-standing problem.
The message, however, does not seem to be getting through to legal employers: 73% of those responding to the VLSB survey thought harassment was very rare within their organisations.
This complacency, or complicity, is now being challenged. But is it enough? Do we also need to strengthen regulation?
I think we do. The development of sexual harassment policies and procedures, and increased training, are genuine practical steps, but have obvious limitations. By themselves they are likely insufficient to transform an endemic cultural problem; more profound change is needed.
Regulating the judges
Regulating judges is a sensitive issue. The need to maintain judicial independence is of paramount concern and is often used to justify an absence of formal controls.
However, maintaining judicial standing and the integrity of the justice system is also crucial. The Heydon affair has demonstrated that the Australian courts are under-prepared to deal with allegations of this type. There are no formal requirements for judges to undertake training in appropriate workplace behaviours. This is clearly within the Victorian review’s sights.
Other changes may be beyond the reach or ambition of one state acting alone. While there are guidelines on judicial conduct, there is no enforceable judicial code of ethics, which could include harassment as a specific disciplinary breach. There are also no formalised sanctions for misconduct, other than dismissal, which tends (rightly) to be regarded as the “nuclear option”.
There should also be an independent forum to deal with judicial complaints at the federal level. High Court Chief Justice Susan Kiefel had to invent a process for this purpose.
Victoria is one of three states that have an independent Judicial Commission. Their jurisdiction is wide enough to hear a complaint of harassment, but it does not extend to hearing complaints against retired judges. And complaints generally may be rejected if they are “too remote” in time.
Both of these caveats are problematic where sexual misconduct is involved, as delays in disclosure are common and understandable. The appropriateness of such constraints should be included in any review.
Regulating the law firms
The Victorian government’s second review illustrates how institutional clients of law firms are using market mechanisms as soft regulation. Much of this is reputational alignment, a way of saying “we only want to work with law firms that value the same things we do”.
Australian governments have done this before in introducing “model litigant” policies that commit governments and their lawyers to behaving responsibly and fairly in civil litigation, and to not taking undue advantage of their power. Also, big public and commercial clients often set corporate social responsibility targets for advisers through chain-of-supply policies. Properly used, these can be useful change mechanisms.
However, they have limited reach beyond the largest firms. They are not a substitute for more general regulation. The profession’s regulators should introduce specific regulatory measures.
First, the VLSB survey identified that a majority of firms still lack formal sexual harassment policies. They are not alone. The Australian Human Rights Commission has recommended the law be changed, requiring employers to take “reasonable and proportionate measures” to eliminate sexual harassment in the workplace.
While this has not yet been implemented into general law, that does not preclude local regulatory action. If the profession is serious in its commitment, then the steps proposed by the Law Council should be backed up by an equivalent professional obligation to take such measures.
Two further reforms could help address the cone of silence that is often constructed around harassment cases, which supports both harassers and those firms that are complicit in the abuse.
Very few matters are ever reported. Regulation could impose a positive obligation on legal practitioners who are aware of harassment to report it confidentially to the regulatory authority.
Such powers exist generally under the legal regulatory regimes in England and Wales and New Zealand. Although this has historically been resisted as a general duty under Australian conduct rules, a case should be made (at minimum) for its introduction in respect of observed harassment in legal workplaces.
The use of non-disclosure agreements to enforce a victim’s silence as part of any settlement is also a key part of the law firm’s arsenal. This should be outlawed. There are arguments that their use is potentially unethical, and in the wake of its own scandal and inquiry, the New Zealand Law Society is already moving to prohibit them. Australia should follow suit.
Authors: Julian Webb, Professor of Law, University of Melbourne