This week, allegations of sexual harassment, by a former High Court judge, during the time he was a judge of that Court, shook the legal world – perhaps more seriously than the ‘Lawyer-X’ scandal. They were both illegal, but these harassment allegations, are at the absolute peak of the legal profession, and the alleged conduct was visceral – especially for women – whether victim or not.

This has nothing to do with ‘tax’, except that sexual harassment is endemic, and I didn’t want ‘Tax Technical’ to be silent, on this ‘tip of the iceberg’ moment. (That is why the entire article is open.)

There are very good articles in the main media, on this, and on the websites of both my local (Victorian) professional associations (Law Institute and Victorian Bar). However, I have chosen to reproduce the article, which the CEO of the Victorian legal regulator posted, on its website, and emailed to all Victorian lawyers. It brings its own perspective, which is, in essence: ‘stamp it out‘ and ‘watch out‘.

To ‘stamp it out’ Fiona McLeah (CEO) said: ‘leaders in the profession need to address the systemic cultural problems that allow sexual harassment to go unchecked’ . But, those who are not leaders, have a role too – we should similarly stand up and be counted.

Her warning is also clear – to practise, you must be a ‘fit and proper person’ – so those who do ‘harass’, and those who don’t call out, the ‘open secret’ of repeat offenders – ‘watch out’ – your regulator has spoken.

[Tax Month – June 2020]



It’s time to end the culture of silence on sexual harassment

This piece originally ran in The Age opinion section on 24 June, 2020 under the headline ‘Sexual harassment is endemic across law and power is the problem’.

Yesterday’s revelations about the sexual harassment inquiry into former High Court Justice Dyson Heydon made for difficult reading: those in the legal profession are charged with upholding and maintaining the rule of law, so surely sexual harassment, among lawyers must be unusual, even rare? Sadly, while I was dismayed reading the article, I was not surprised by the allegations. [Though, this is not to imply that any wrongdoing has been proved in Court or admitted – I note that the Judge, does deny any illegality and has apologised, if any of his conduct has caused offence.]

In 2019, my office undertook a wide-ranging study to better understand the prevalence of sexual harassment in Victoria’s legal workplaces. Over 2,300 Victorian lawyers contributed to our study, and in April this year we published our findings.

  • We found that over one third of Victorian lawyers were sexually harassed within the last five years, with almost two thirds of female and just over one in ten male respondents experiencing sexual harassment.
  • Aside from gender, our study showed that power imbalances are the single biggest ‘risk factor’ for experiencing sexual harassment as a lawyer. Junior lawyers in particular were vulnerable to being harassed, with over half of those reporting being harassed having fewer than five years’ experience at the time of the incident.
  • Perpetrators were almost always male, very often senior to the person they harassed, and most often senior members of the profession.
  • Incidents of sexual harassment were often part of a pattern of behaviour, and perpetrators were known for having been involved in similar incidents – for the perpetrator’s behaviour to have been an ‘open secret’.  Reporting was uncommon, with many [victims] saying they believed it was easier to keep quiet, that they lacked confidence in reporting systems and that they feared negative reactions from colleagues or the perpetrator.
  • For many who responded to our survey the experience of being sexually harassed was highly destructive to their personal wellbeing and self-esteem and some decided their best option was to leave the profession.

So, we know that sexual harassment exists in the legal profession. We know who typically experiences it, and who the perpetrators commonly are. We know that it usually goes unreported. And, finally, we know that the consequences for individuals – and the quality and depth of the profession itself – are serious.

So what can we do?

I think that there’s a lot that can be done in the short and long-term to improve awareness and understanding of harassment and improve how we as a profession respond effectively and fairly to sexual harassment complaints.

My office is developing free resources to help lawyers understand and recognise sexual harassment, and assist firms to implement policies and procedures that support reporting and resolution of sexual harassment complaints.

However, it’s also clear that education and formal reporting mechanisms cannot alone stop harassment. In the long-term, leaders in the profession need to address the systemic cultural problems that allow sexual harassment to go unchecked.

We need to build a legal culture:

  • in which sexual harassment is not tolerated and
  • where those who experience, witness and hear about it are able to speak up.
  • We need to identify and introduce mechanisms that limit the potential for abuses of power.
  • And we need to destabilise the structures that support serial harassers.
  • I urge leaders in all legal workplaces to listen to their employees, to hear their stories and their ideas for how sexual harassment can be stopped.

Lawyers are bound to uphold the administration of justice and the rule of law, and in order to practice, are required to demonstrate that they are ‘fit and proper persons’. These are serious obligations, and the profession has a collective responsibility to hold itself to account for behaviour that compromises these obligations.

As the legal regulator,

  • we will be doing everything in our power to investigate and respond to complaints about sexual harassment, and
  • I encourage anyone who has experienced this behaviour by a Victorian lawyer to get in contact with my office.
  • I have the power to investigate individual lawyers, as well as legal workplaces.

Ultimately it’s a question of what kind of legal profession we want to have.

  • Lawyers have a privileged and trusted position in the community and play a vital role in upholding justice and the rule of law.
  • This kind of behaviour does not reflect this.
  • It prevents great women from having successful and satisfying careers and it tarnishes the reputation of the whole profession.

We can and must do better.

You can read the report on our website.

Fiona McLeay
Board CEO + Commissioner
Victorian Legal Services Board

[TT post – 28.6.20]