Respect@Work – a focus on our profession

This paper considers the amendments to laws regarding workplace bullying and sexual harassment and the employer’s responsibility implementing recommendations of the Commission’s Respect@Work report (2020). It focuses on inappropriate personal conduct in the legal profession through the lens of the laws that fall within the jurisdiction of the Australian Human Rights Commission, and particularly the suite of four federal anti-discrimination laws.

Let me begin by acknowledging the traditional custodians of the land on which we meet, and pay my respect to Elders, past, present and emerging, and also to acknowledge any Indigenous participants today.

It is a most interesting group gathered in person again for your CORO event. I am connected with you in a number of ways. I was admitted three times (solicitor/Barrister/solicitor) in New South Wales, before you could simply be admitted as a lawyer in that jurisdiction. Then, as a Dean of two law schools and chair of the Association of Law Deans, I was closely interested with the process and standards for admission to the legal profession. The ‘Priestley 11’ and all that. My role over the last 15 and a half years has been in the government world: 10 years in law reform and five years heading the Australian Human Rights Commission. This latter period has involved close consultation with all the professional bodies you represent, looking at reform of the law and improving professional practice in a range of ways.

For our panel discussion we’ve been asked to focus on inappropriate personal conduct in the legal profession. I thought I would look at the idea of ‘inappropriateness’ through the lens of the laws that fall within the jurisdiction of the Australian Human Rights Commission, and particularly the suite of four federal anti-discrimination laws.

Clearly the topic of the moment has been on sexual harassment in the workplace – and the legal profession has been far from absent within the ambit of workplaces captured.

In June 2020, the High Court revealed the conclusion of an investigation of allegations of sexual harassment by former Justice Dyson Heydon towards six former judicial associates who worked at the court. The conclusion was that these women had been harassed by the former Justice. In a statement announcing the findings of the investigation, the Chief Justice, the Hon Susan Kiefel AC said, ‘We’re ashamed’:

The findings are of extreme concern to me, my fellow Justices, our Chief Executive and the staff of the Court. We’re ashamed that this could have happened at the High Court of Australia We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed. I have appreciated the opportunity to talk with a number of the women about their experiences and to apologise to them in person. I have also valued their insights and suggestions for change that they have shared with the Court^.[1]

The revelations in our highest court and the statement of the Chief Justice are part of a significant recognition of an unpleasant underbelly in our own profession.

One month later, in July 2020, the Federal Court concluded an appeal in the sexual harassment matter in Hill v Hughes, in a regional practice, concerning the Principal of the practice and the applicant, who was then a paralegal. (Some of you may know it as the ‘Mr D’Arcy’ case). Perram J gave a scathing judgement for the court in the applicant’s favour and awarded a significant damages award, including aggravated damages. The facts of that case – one of the few discrimination matters that proceed to court – reveal the ‘drivers’ of power differential and of dependence in the workplace that can undermine any notion of a consensual relationship.

Hierarchical workplaces and power imbalances are seen at the Bar, in law firms and in Courts and tribunals, like the Fair Work Commission and the AAT, which involve statutory appointments with little accountability.

The International Bar Association’s Review into Bullying and Sexual Harassment in the Legal Profession, #UsToo, found that bullying and sexual harassment are rife in Australian legal workplaces, and that in Australia, sexual harassment in the legal profession occurs at higher rates than global averages.

The Review of Sexual Harassment in Victorian Courts (March 2021),^[2] and the Review of Harassment in the South Australian Legal Profession (April 2021),^[3] also highlighted the prevalence of sexual harassment in legal professions.

In November 2021, then NSW Chief Justice Tom Bathurst sent a video to NSW Bar Association members saying that sexual harassment in the legal profession was a serious problem and that ‘we can and must change’. Bathurst CJ said that the legal profession was ‘already fraught with mental health challenges. Sexual harassment and abuse often have long-standing effects on people’s lives and careers.’^[4] Chief Justices in other jurisdictions have come out similarly.

Bathurst CJ’s statement came three months after the launch of the Commission’s report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, concluding the 18-month inquiry led by Sex Discrimination Commissioner, Kate Jenkins.

The Respect@Work Report was tabled in Parliament on 5 March 2020, just before the impacts of COVID hit our country. Kiefel CJ’s statement in June of 2020 and was the catalyst to putting implementation of Respect@Work squarely on the agenda of the legal profession, and Government.

Rather than assume this issue was caused by ‘one bad bloke’, the complaint about Justice Dyson Heydon was taken seriously and sexual harassment was recognised as a systemic issue that faced Courts and Tribunals, caused by power imbalances and lack of accountability.

It was also a stark example of high-potential talent leaving a profession altogether due to sexual harassment.

Since this statement, a settlement has been reached which did not restrict the lawyers speaking of their experiences, something recommended by R@W – away from blanket non-disclosure agreements.

The Australian Government is now implementing all 55 of the report’s recommendations. A number were implemented in September 2021, Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. The remaining recommendations are included in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, introduced on 27 September 2022. The Senate Legal and Constitutional Affairs Legislation Committee inquiry on the Bill is due to report on 3 November 2022 (today).

The 2021 amendments broadened and strengthened the federal laws that protect workers from sexual harassment and sex discrimination in the workplace. These changes included explicitly providing that not only sexual harassment, but also sex-based harassment is prohibited (s 28AA) – to clarify the law, including a non-exhaustive list of relevant circumstances. Applies to ‘unwelcome conduct of a seriously demeaning nature’. The key issue raised in the Commission’s response to this provision was that the threshold of ‘seriously demeaning’ posed too high a threshold for a finding of sex-based harassment to be made. The Commission submitted that conduct that debases or degrades another person is already sufficiently serious to warrant prohibition, and it is unnecessary to further qualify that conduct by requiring that it ‘seriously’ debases or degrades them.

The 2022 Respect@Work Bill would change this provision to replace ‘seriously demeaning’ with ‘demeaning’ in the above test.

Following the enactment of the 2021 Respect@Work Amendment Act, the SDA now adopts the legal concepts of ‘worker’ and ‘persons conducting a business or undertaking’ (a ‘PCBU’) from Work Health and Safety law in provisions relating to sexual harassment and sex-based harassment. This amendment had the effect of expanding the sexual harassment and sex-based harassment protections of the SDA to include not just employees, but also the self-employed, interns, unpaid workplace participants, apprentices, employees of a contractor or subcontractor, employees of a labour hire company, and independent contractors.

However, while unpaid workplace participants now have the benefit of protection against sexual harassment and sex-based harassment in the workplace, they still cannot bring a sex discrimination claim under the SDA. This is not corrected by the 2022 Respect@Work Bill. While recognising that this was not a direct recommendation of the Respect@Work report, the Commission continues to advocate for this change.

The 2021 Amendment Act also expanded the protections against sexual harassment and sex discrimination in the SDA to state and territory public servants and clarified that it applies to Members of Parliament and their staff, as well as to judicial officers at all levels.

Responding to a series of court decisions that cast doubt on whether the Federal Court of Australia (FCA) and the Federal Circuit and Family Court of Australia (FCFCA) had jurisdiction to determine a complaint of victimisation as part of a civil proceeding, the First Respect@Work Amendment Act also clarified that victimising conduct under the SDA can form the basis of a civil action for unlawful discrimination.

The 2022 Bill would make equivalent changes to the DDA, the RDA, the ADA and the AHRC Act to clarify that victimising conduct can form the basis of a civil action for unlawful discrimination across all four discrimination acts. This goes beyond R@W and picks up our later advocacy in our Free & Equal paper setting out a law reform agenda across the suite of federal discrimination laws.

The 2022 Bill implements significant remaining recommendations from the Respect@Work report — most notably the introduction of a positive duty on all employers and persons conducting a business or undertaking (PCBUs) to take ‘reasonable and proportionate measures’ to eliminate sex discrimination, including sexual and sex-based harassment.

This will be a powerful tool in promoting broad systemic and cultural change around sex discrimination and sexual and sex-based harassment in the workplace. As the present Bill also confers new powers on the Commission to monitor and assess compliance with this positive duty, it shifts the burden away from remedial action by individual complainants and towards employers taking proactive and preventative action to eliminate unlawful conduct.

As the Explanatory Memorandum clarifies, the meaning of ‘reasonable and proportionate measures’ will vary between employers and PCBUs.^[5] Accordingly, the duty is adaptable. Moreover, the new duty builds on the existing vicarious liability provision in the SDA that requires employers and principals to take ‘all reasonable steps’ to prevent their employees and agents from engaging in unlawful conduct.

The positive duty also operates concurrently with the existing duties in WHS laws, which require employers and PCBUs to provide a safe working environment. It is intended that WHS laws and discrimination law will ‘operate in a mutually reinforcing way to build safer and more respectful workplaces’.^[6]

If passed in its current form, the 2022 Respect@Work Bill would also insert new provisions into the AHRC Act to confer new powers on the Commission to monitor, assess and enforce compliance with the positive duty in relation to sex discrimination.

Beyond the SDA

In our 2021 position paper, Free and Equal: A reform agenda for federal discrimination laws^[7] (Free and Equal position paper), we set out four integrated sets of reforms to improve the effectiveness of federal discrimination laws. These reforms build on, and go beyond the scope of implementing, the recommendations of the Respect@Work report, but many are just as pressing. This would shift the focus of the federal discrimination law system to a more preventative approach across all four discrimination laws, not just the SDA.

The changes proposed in this Bill, particularly the positive duty in relation to sex discrimination and the conferral of new enforcement powers on the Commission, have the potential to achieve significant systemic reform.

Rather than viewing this duty as a burden, employers can create a culture that is respectful and professional.

This is not just about recognising gender and sexual harassment as potential risks, but also risks in relation to racial slurs, in relation to ageist stereotyping, in relation to treating people with disability poorly. All of those are areas of disrespect.

As more businesses focus on preventing and addressing disrespect and its associated risks, workplaces will be better for everyone.

There are two clear strategies to identify and manage disrespect and sexual harassment in the workplace. The first is training and education to raise awareness and anticipate potential issues.

The second is to empower people to speak up when something is wrong and breaches company standards, policy and culture.

An example that comes to mind is the one considered by the NSW Court of Appeal, arising from the NSW Anti-Discrimination Act 1977: Vitality Works Australia Pty Ltd v Yelda (no 2) [2021] NSWCA 147. It is the poster case. A female worker, Ms Yelda, poses willingly for a photo to promote spinal health in her workplace, as part of the ‘SafeSpine’ initiative.  But then someone used the slogan: ‘Feel great — lubricate!’ and the poster was displayed in a male-dominated workplace. The NCAT and the Court of Appeal didn’t take long to conclude that it carried sexual innuendo and satisfied the definition of sexual harassment.

In her judgment, McCallum JA (as she was at the time), made a significant contribution to the jurisprudence as to the meaning of the words ‘conduct of a sexual nature’.

One the arguments on appeal was that the poster did not amount to sexual harassment because its sexualised message was not explicit.

McCallum JA observed that the sexualisation of women in the workplace often is not explicit. She further observed:

Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8] –[12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.

Writing in an enewsletter for NSW barristers following the case, Melissa Fisher reminded the Bar of ‘the need to be alive to the power of implication in their own conduct, and the conduct of others, in their places of work, including chambers, court, mediations or the Bar Common Room’.

In particular, barristers need to be aware that innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod are all devices capable of sexualising conduct in ways that may be unwelcome. Further, that such unwelcome conduct of a sexual nature may amount to sexual harassment.

Moreover, if you see such behaviour, you have a role to be active. If you had been in Ms Yelda’s workplace, and you did not rip that poster down or stick a big black Texta over it, you may be contributing to the sexual innuendo and the sexual harassment.

Cultural change needs responsibility in leadership. The responsibility spreads into bystander interaction as well. We’ve long known that incidents don’t need to be this obvious to be a problem. Jokes that amount to casual sexism or racism aren’t acceptable in the workplace and contribute to a poor culture.

Change starts small and it’s up to everyone to contribute. As soon as we assume it’s for someone else to deal with, whether it’s other managers or HR or some other part of an organisation, then we have dropped the ball.

Endnotes

^[1] <Statement by Chief Justice Susan Kiefel AC.pdf (hcourt.gov.au)>.

^[2] Sexual Harassment review: About the Review of Sexual Harassment In Victorica Courts at
https://courts.vic.gov.au/about-csv/sexual-harassment-main/sh-review-report.

^[3]  Final Report of the Review of Harassment in South Australian Legal Profession (2021) at https://www.equalopportunity.sa.gov.au/documents/Final-Report-of-the-Review-of-Harassment-in-the-South-Australian-Legal-Profession.pdf.

^[4] Pelly, Chief Justice tells barristers sexual harassment is a serious problem (2021) at https://www.afr.com/companies/professional-services/chief-justice-tells-barristers-sexual-harassment-is-a-serious-problem-20211114-p598te.

^[5] Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, 4.

^[6] Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, 5.

^[7] Australian Human Rights Commission, Free and Equal: A reform agenda for federal discrimination law — Position Paper (2021) (Free and Equal position paper) at https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-reform-agenda-federal-discrimination-laws.