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The National Brief #3

May 2021

Zero tolerance – let’s make it clear

The publication of the Review into Sexual Harassment in Victorian Courts by the former Victorian Equal Opportunity and Human Rights Commissioner, Dr Helen Szoke AO, and the Review of Sexual Harassment in the South Australian Legal Profession by the South Australian Equal Opportunity Commission, exposed again sexual harassment as a pervasive issue in the legal profession and at the Bar. The reports, again, make uncomfortable reading and, while each focuses on incidents and situations in those two individual States, the findings are of national importance and are relevant to every Bar in every State and Territory in Australia. I urge all members of the Bar to read the Review of Sexual Harassment in Victoria’s Courts here and the Report of the Review of Sexual Harassment in the South Australian Legal Profession here.

The ABA issued a statement following the release of the reports, reiterating its position of zero tolerance of sexual harassment at the Bar and acknowledging that the institutional framework of the Bar, including the implicit power imbalances and its hierarchical structure, perpetuates these unacceptable behaviours. Sexual harassment cannot be eradicated from the legal profession if people fear that they will not be heard or may face repercussions from speaking out, or that perpetrators will be protected. Sexual harassment is illegal and unacceptable in any workplace and must not be tolerated at the Bar. The ABA’s statement is here.

As the national representative body of Australia’s independent Bars, the ABA recognises our responsibility to work towards a nationally consistent approach to effect real and lasting change. The Diversity and Inclusion Committee of the ABA has been commissioned by the ABA Executive to review the Victorian and South Australian reports and develop an implementation plan, working closely with State and Territory Bar Associations.

“Power and Consent”

This week we released the second in the ABA’s podcast series in which Kate Eastman SC, Chair of the ABA’s Diversity and Inclusion Committee spoke with Rachel Doyle S.C., Barrister at the Victorian Bar and author of a new monograph “Power and Consent”, published by Monash University Press. I commend the book. In the podcast, Rachel speaks about what led her to write the book, and puts forward some “red flags” as a practical way of stopping harassment. Please listen to the podcast here.

The ABA also welcomes news that Commonwealth Attorney-General Michaelia Cash announced that Parliament will strengthen protections against sexual harassment in the workplace under the Sex Discrimination Act and the Fair Work Act to include politicians and judges, together with adopting many of the other recommendations of the Report of the National Enquiry into Sexual Harassment in the Workplace (Respect @ Work Report). The ABA supported the recommendations of the Report when it was delivered in a statement you can read here and we are heartened that the new Attorney-General has announced the Government now will move to implement many of the recommendations.

In late March, I was among a number across the profession who responded to questions from the media about mechanisms to address gender parity at the Bar and on the Bench. It is the ABA’s, view that it is important that the judiciary reflects, and is seen to reflect, the community that our judicial system serves, and it can only be a good thing if disputes and proceedings are resolved by calling on collective wisdom drawn from different personalities, genders and experiences. Addressing and overcoming the barriers and behaviours that impede diverse representation at the Bar is such an important priority of the ABA. Subscribers to Lawyerly can read the article here.

National Conference: Re-emerging from the pandemic

2020 was an enormously significant year that will have lasting impact on our profession and our nation and the fall-out from the pandemic continues to play out in 2021. I’m delighted that we will have the opportunity to reflect on how our country, the courts, practitioners and administration of justice has changed at the 2021 ABA National Conference, in Melbourne on 16 – 18 September. The theme of the Conference is “RE-EMERGE. The Australian Bar after COVID-19: Energised, Innovative, Enduring”. This will be the first opportunity following the pandemic for members of the Bar, judiciary and others across the legal profession to come together at a national level. By September, we will be in a good position to assess and reflect on questions such as: what will be the long-term impact of the pandemic; what have we learned about our adaptability and resilience; what do we need to do to ensure we deliver value, earn respect and remain relevant in the justice sector and in society?

The conference will open on the afternoon of Thursday 16 September, with a keynote address by the Hon. Susan Kiefel AC, Chief Justice of the High Court of Australia, followed by an international keynote by the legal futurist Prof. Richard Susskind OBE. The full day program on Friday 17th and the morning of Saturday 18th will take attendees on an in-depth and reflective journey around issues such as the future of our federation, the psychological impacts of the pandemic, what future courts, juries and remote justice might look like, what is the lived experience of discrimination within our profession, how we address the ethical issues that have beset us and how our clients view us, and culminating in a War Room in which a high-profile cast of house-hold names hypothesise about the impact of the next pandemic. We’re planning a good mix of black-letter law topics and those that consider our personal, professional and social journeys as we re-emerge from the pandemic.

We’re hoping that as many of you can join us in person in Melbourne as possible. We will be offering live-streaming of the conference for those unable to attend in person. Please save the date. More information is on the ABA website here. Registration will open soon.

Silks’ bows in Canberra

I’m delighted that Silks’ Bows before the High Court of Australia, and the ABA Silks’ Dinner will take place on 2 August this year. In consultation with the High Court, we delayed these events from February 2021. This is an important event that recognises the achievement of barristers attaining Senior Counsel, and underscores the collegiality of our national Bar and the critical role that we play the administration of justice. The ABA Executive and I are looking forward to meeting the 2020 cohort of silks and celebrating their success.

Supporting lawyers in Myanmar

I am sure that many readers, like me, have looked on in horror at the use of military force to dissolve parliament, break-up protests and detain civilians in Myanmar. There have been credible reports of harassment and detention of lawyers for challenging the legality of their clients’ detention, and for filing legitimate cases. We have also noted reports that judges at all levels of courts have been dismissed without valid cause, and some placed under unlawful detention.

The Australian Bar Association and the Law Council of Australia issued a joint release last month urging Myanmar’s military government to immediately release all lawyers, judges and others detained unlawfully; take immediate, meaningful steps to enable lawyers to carry out their professional duties safely and independently, and protect them against intimidation, threats and reprisals; and guarantee to all persons due process rights in accordance with the rule of law, particularly the right to effective access to independent, competent legal assistance at all stages of the criminal process. You can read the release here.