Stopping sexual harassment, discrimination and bullying: how to make anonymous, bystander or formal complaints to the OLSC

14/10/2020

As co-regulator of the legal profession in New South Wales, the Office of the Legal Services Commissioner (the OLSC) is empowered to deal with conduct alleged to constitute sexual harassment, discrimination and/or workplace bullying in breach of rule 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Conduct Rules).

The Legal Services Commissioner, John McKenzie, strongly encourages the legal profession in its entirety to take steps to eliminate all forms of sexual harassment, discrimination and workplace bullying. The OLSC describes below the mechanisms available to bystander witnesses, any person with knowledge or information of such conduct, as well as targeted persons, to make either formal complaints or anonymous, confidential informal reports. The OLSC website provides mechanisms for both formal complaints as well as anonymous reporting.

Recent and historical data discloses an alarming, systemic culture of sexual harassment, discrimination and bullying within the Australian legal profession, highlighted in the May 2019 International Bar Association report entitled Us Too? Bullying and Harassment in the Legal Profession (the IBA report). The opening words to the IBA report were ‘[t]he legal profession has a problem’, with one of the conclusions being that ‘bullying and sexual harassment are rife in Australian legal workplaces’.

In 2014 the Law Council of Australia National Attrition and Re-engagement Study Report (the NARS report) showed that 55% of all practising women barristers surveyed across Australia had experienced sexual harassment, and 80% had experienced bullying or intimidation.

The matters the subject of the statement issued on 22 June 2020 by the Honourable Susan Kiefel AC, Chief Justice of Australia, regarding former High Court judge Dyson Heydon, without commenting on the particulars of any individual case, again draw attention to this persistent problem.

The following is the response of the Legal Services Commissioner to conduct constituting sexual harassment, discrimination and/or workplace bullying in breach of rule 123 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.

What role can the OLSC play in eliminating conduct in prima facie breach of Rule 123?

Rule 123 prohibits barristers engaging in conduct that constitutes sexual harassment, discrimination and/or workplace bullying, as defined in rule 125. The OLSC can investigate formal complaints (and can receive informal reports) of alleged breaches of the Conduct Rules, and is committed to the elimination of such conduct from the legal profession.

Who can make a complaint or report to the OLSC?

Any person can make a formal complaint, or informal (anonymous) report, about the alleged breach by a barrister of rule 123 of the Conduct Rules. Conduct of barristers’ chambers can also be reported.

What is the difference between a formal and informal complaint?

Formal complaints lead to investigation and may result in disciplinary action. While the Legal Profession Uniform Law 2014 (NSW) does not allow formal complaints to be made anonymously, informal reporting of knowledge of an alleged breach of the Conduct Rules is anonymous and confidential. Data collected from informal reports will be mapped to identify clusters, which in turn will lead to approaches by the OLSC to Heads of Chambers to discuss systemic cultural issues pertaining to personal conduct.

What are the obstacles to eliminating sexual harassment, discrimination and/or workplace bullying?

Sexual harassment, discrimination and/or workplace bullying are grossly under reported. It is critical that all those with knowledge of such conduct make use of the formal or informal, anonymous mechanisms within the OLSC. The OLSC particularly encourages bystander witnesses to report, to assist in relieving the targeted person from bearing the heavy onus of doing so on every occasion themselves.

Bystander witnesses can report here.

Anonymous, confidential (informal) reports can be made here or by phoning the trained Personal Conduct Team on (02) 9377 1849 during business hours.

Those who are subject to, or targets of, conduct can make informal reports here.

Formal complaints can be made here.

The OLSC complaint making process is explained here.

A fact sheet about rule 123 of the Conduct Rules, and consequences of breach, is available here.

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