What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 11 December 2023 – 17 December 2023

Controversial Lawyer Nathan Buckley Faces Discipline for Social Media Posts

The New South Wales (NSW) Law Society’s council brought an application against controversial lawyer Nathan Buckley in late 2021. The council alleged that his social media activity in 2021 amounted to unsatisfactory professional conduct and professional misconduct. In one of his posts, Mr Buckley is accused of writing that lawyers who wanted to succeed in the profession “would have to give up everything you believed in,” adding “unless you are in a position of power, you’re not getting anywhere”. Mr Buckley has also been accused of writing that “as soon as you take on the establishment, the Law Society will be over your arse like a wet dildo”. Mr Buckley submitted that there were “preliminary issues” with the Law Society’s application and objected to the New South Wales Civil and Administrative Tribunal’s (NCAT) jurisdiction to hear the matter. Justice Susanne Cole dismissed Mr Buckley’s application. Previously, Mr Buckley has accused Justice Beech-Jones on Twitter (now X) of determining that “no one in NSW has any rights” and “no one has a right to bodily integrity… he basically said it is ok [sic] to kill anyone you like”. The NSW Law Society alleged that Mr Buckley’s conduct “did not honestly or accurately characterise the effect of the Kassam judgment” and that it was likely to “mislead persons as to the effect of the judgment and/or was likely to undermine confidence in the authority of Beech-Jones”. The matter will return in February next year.

Bullying Prevalent in Australia’s Legal Profession, Remains a Significant Concern

The prevalence of bullying in law, along with the significant costs associated with this workplace misconduct, has remained a concern for the legal profession. Leaders have been called to address bullying claims in the workplace as there has been no significant change since the introduction of anti-bullying legislation 10 years ago. Megan Kavanaugh, partner at Colin Biggers & Paisley, stated in September this year that the change to online work and communication could give rise to an increase in bullying. Ms Biggers said that “workers’ compensation regulators from across the country have reported increases in claims for psychological injuries”. Further, she said that “the cause is unclear: is it the pandemic’s contribution to changes in the way we work? Is it flexible and hybrid working arrangements, the impact of technology and FOMO (fear of missing out) approach to digital solutions undermining our resilience and coping strategies, including connections with people, sleep and outdoor time?” In 2019, the total costs of workplace bullying within the legal profession was estimated at $36 billion per year. Further, it was reported that 73% of female respondents from Australia and 50% of male respondents reported having been bullied in connection with their legal employment. Law Council of Australia president Luke Murphy said that “the Law Council has a zero tolerance for bullying and is committed to ensuring that all members of the legal profession are treated fairly and respectfully”.

Gender Equity in Law: How Much Progress has been Made in Promoting Female Leadership in Law?

The need for women in law to advance in the legal industry has remained prevalent this year. Women who progress through the ranks represent a modern workplace and bring diverse perspectives which enrich the profession. Despite the progress made in gender equity within recent years, the gender pay gap still exists in law. Women are leaving the profession earlier than men, who make up the majority of leaders in law. However, the number of female leaders in law is increasing, with the profession becoming younger, more female and more diverse. State managing partner of Holding Redlich, Rachel Drew, said that “there is an increasing number of female partners in law firms, more female barristers and women in judicial positions, including a wonderful (now) former chief justice of the High Court. It is important for women to have visible role models in positions of authority as it allows them to see that similar career advancement is possible”. She said that “there’s often pushback against quotas and targets for women, sometimes seen as token gestures, yet there are strong reasons to implement them to address historical inequality and speed up the progress towards a more diverse and inclusive work environment”. Despite advancements, there remain a number of challenges for women in law and in legal leadership. Ms Drew said that “I have seen female lawyers face unfair expectations to outperform their male colleagues for similar recognition, advancement or pay. Overcoming this disparity is not easy, but it is possible”.

Western Australian Judiciary Participates in Sexual Harassment Training

Members of the Western Australian judiciary have participated in landmark training in relation to workplace conduct and sexual harassment, which has been described as a “superior learning experience”. The College of Law, working with Equal Employment Opportunity Specialists (EEO Specialists) and the Experience Lab, were engaged by the West Australian judiciary to “develop and deliver customised training, tailored to the unique working environments of courts and tribunals”. The training program was attended by more than 100 Western Australian judicial officers and expanded beyond traditional methods of lecture-style presentations to incorporate interactive and immersive techniques. Catherine Stokes, executive director of the College of Law Western Australia, stated that “the training revolves around a play set in a judicial workplace, in which various scenes are re-enacted under the guidance of a specialist facilitator.” She said that “the audience then interacts with the actors, who stay in character, to learn, reflect and understand the experiences of the characters involved.” Ms Stokes said that “the College is committed to help foster a culture of respect in the legal workplace through initiatives such as these, which are contemporary, accessible and credible”.

Employers Held Legally Responsible for Discrimination and Harassment in Workplace

Employers are now held legally responsible for failing to proactively prevent workplace sexual harassment from Tuesday 12 December 2023. The Australian Human Rights Commission now has enforcement powers after the “positive duty” reform was introduced in 2022 as part of the Respect@Work legislation. The positive duty requires employers to take “reasonable and proportionate” measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, hostile workplace environment and victimisation within the workplace. Dr Anna Cody, Australia’s sex discrimination commissioner, said that Australia had “much further to go” in addressing workplace sexual harassment. Dr Cody said that “relying on complainants to uphold the rights and standards that everyone should enjoy within a workplace was insufficient and it needed to be a much more proactive approach”. The commission will be able to assess complaints and take action against workplaces which it found to be failing in its positive duties. Workers, unions and other bodies are able to make complaints to the commission through an online portal.

Journalist Lisa Wilkinson Provides Evidence in Bruce Lehrmann Defamation Trial

Journalist Lisa Wilkinson gave evidence from the witness box this week, attracting more than 21,000 viewers on the Federal Court’s YouTube channel. Bruce Lehrmann has commenced defamation proceedings against Lisa Wilkinson and Network Ten in relation to an interview on The Project where Brittany Higgins first revealed her rape allegations. Mr Lehrmann was not named in the interview, but he has claimed he was defamed because he was easily identifiable. Ms Wilkinson’s speech after winning a Silver Logie for the interview delayed Mr Lehrmann’s criminal trial by several months due to concerns about the impact of the public attention. Ms Wilkinson has maintained that she sought advice prior to giving the speech. However, Mr Richardson accused that Ms Wilkinson put her “pride and ego” ahead of Mr Lehrmann’s right to a fair trial. Ms Wilkinson denied this, however stated that she had not undergone any training in dealing with contempt of court in her 40 years as a journalist. Further, Mr Richardson put to Ms Wilkinson that “you could not be objective, I suggest, in terms of making a fair assessment of the evidence”.

Western Australian Ophthalmologist Disqualified for Two Years for Inappropriate Sexual Behaviour

A Western Australian ophthalmologist has been disqualified for two years for inappropriate sexual behaviour involving two patients. On 1 June this year, the Medical Board of Australia referred Dr Geoffrey James Crawford to the State Administrative Tribunal (SAT) for violating boundaries with two female patients. Dr Crawford had commenced a sexual relationship with Patient T in 2002. The sexual relationship with Patient T ended in November 2003. In a second instance, Dr Crawford behaved inappropriately towards Patient S in March 2019. Dr Crawford breached patient boundaries by making inappropriate sexual comments and having inappropriate contact with her. Dr Crawford was reprimanded and suspended for similar conduct in 1992. The SAT found that Dr Crawford’s behaviour was professional misconduct and ordered that he be reprimanded, disqualified for 24 months and pay $10,000 to the Board in legal costs.