Inclusion and Diversity Note

19/08/2020

How far have we really come?

To observe as the public does, looking from the outside in at practice at the Bar in 2020, there is an appearance of diversity and inclusion. Conversely, looking from the inside out; for those members who remember practice at the Bar in the 1970s and 1980s; for those at the Bar who have never bullied or harassed, the same may appear true. The Bar is now more gender diverse, ethnically diverse and socio-economically available as a career than ever before. It is not the “boys’ club” (some would say privileged boys’ club) it once was. Female participation has never been greater and there are now more members for whom English is not the first language or the only spoken familial language.

In the case of female participation at the Bar, members have reached the highest levels of achievement. From the Honourable Elizabeth Evatt AC, First Chief Justice of the Family Court of Australia appointed in 1976, to more recently our own New South Wales State Governor and the present Chief Justice of the High Court and two other present members of that Court, the achievement is there to be seen.

All may seem well. Progress has been and continues to be made. Practice of law including at the Bar it could be argued has done as well as other professions and better than some. But in recent years, cracks have appeared in the façade of growing inclusion and diversity. These cracks are large enough to cause concern and require remediation. For example:

• In 2018, the Victorian Bar released a report in which in all 59% of Victorian barristers who responded to a survey as to their health and wellbeing at work (there were 856 respondents) said they had experienced denigration and bullying from judges and magistrates with some female barristers also reporting gender bias;

• In May 2019, the IBA released its report, “Us too? Bullying and Sexual Harassment in the Legal Profession”. The report presents disturbing reading. To quote one finding: “Bullying and sexual harassment are rife in Australian legal workplaces: 73% of Australian female respondents and 50% of Australian male respondents had been bullied in connection with their employment. These rates are significantly higher than global averages, in which women and men were bullied at rates of 55% and 30%, respectively. Australian legal professionals also report a higher rate of sexual harassment than the global average: 47% of female respondents indicated they had been sexually harassed (compared with 37% globally) and 13% of male respondents (7% globally).”

• On 22 June 2020, the Chief Justice released the now well-known statement with respect to alleged judicial harassment of associates at the Court.

A consistent thread through the reports and surveys is a reluctance, many report fear, of reprisals if abhorrent conduct is reported. Increasingly attempts have been made to deal with this issue and it should now be the case with the Courts and for members there is a confidential means of reporting if an issue arises in your practice.

If you have been impacted in any by unlawful discrimination, sexual harassment or workplace bullying at the NSW Bar, information about support services and avenues of complaint is available here.

This article has been prepared by a member of the Association’s Diversity and Equality Committee, as part of the DEC’s weekly blog series on Inclusion and Diversity at the NSW Bar.

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