Proctor : August 2019
35 PROCTOR | August 2019 Bridget Burton is the Director of the Human Rights and Civil Law Practice at Caxton Legal Centre. Bridget has worked in several community legal centres, Legal Aid Queensland and the University of Queensland, and practises mainly human rights and anti-discrimination law. She acknowledges the kind assistance of Associate Professor Francesca Bartlett in the preparation of this article. It is important to note that this is a decision at first instance and it appears that it may be appealed. I have focused on the elements of the reported decision that are learning opportunities for us as a profession rather than the factual detail reported in the media or any precedent value for practitioners of sexual harassment law. RULE 42 ASCR Queensland practitioners will be aware of rule 42 of the Australian Solicitor Conduct Rules 2012 (ASCR): 42.1 A solicitor must not in the course of practice, engage in conduct which constitutes: 42.1 .1 discrimination; 42.1 .2 sexual harassment; or 42.1 .3 workplace bullying. Notes 1 At the same time Kate Allman was writing a powerful article on a similar topic for the Law Society of NSW Journal (#TimesUp for the Legal Profession, Dec 2018) 2 Based on QLS membership 2018 figures (qls.com.au/ About_QLS/Queensland_Law_Society/Resources_ publications/Corporate_documents/Annual_Reports/ Annual_Report_2017-18) and also broadly reflective of the national profile (lawsociety.com.au/sites/default/ files/2018-04/NATIONAL%20PROFILE%20OF%20 SOLICITORS%202016.compressed.pdf). 3 ibanet.org/bullying-and-sexual-harassment.aspx. 4 See the Law Council of Australia’s submission to the AHRC Inquiry into Sexual Harassment in Australian Workplaces for a good summary as relevant to the legal profession, lawcouncil.asn.au/resources/ submissions/national-inquiry-into-sexual-harassment- in-australian-workplaces. 5 Hart, Chloe Grace, 2019, ‘The penalties for self- reporting sexual harassment’. see also theconversation. com/women-take-a-hit-for-reporting-sexual- harassment-but-metoo-may-be-changing-that-116794. 6 David Bowles, ‘Bullying and sexual harassment are ethical issues. Was there ever any doubt?’, march 2018, qls.com. au/knowledge_centre/ethics/resources/anti-discrimination_ and_harassment/bullying_and_sexual_harassment_are_ ethical_issues_was_there_ever_any_doubt. 7  NSWSC 1452, . 8 qls.com.au/for_the_profession/practice_support/ resources/diversity_and_inclusion_in_the_workplace/ harassment_bullying_and_discrimination_in_the_workplace. OUR PROFESSION honour representing you in your own matter. I am sorry it coincided with me expressing to you a need in me for intimacy” [at 35]. As a result of this rule 42, an alleged breach of federal or state anti- discrimination law may also be the possible subject of a complaint to the Legal Services Commissioner. Practitioners will be acutely aware of what took place in New Zealand6 last year and it is difficult to imagine that the language and attitude noted in Styles v Clayton Utz (No.3)7 would be tolerated in today’s environment. Queensland Law Society has recently created a position statement and has several resources supporting practitioners on this issue.8 Solicitors need to be mindful that behaviour that can be caught by this rule can include language which could intimidate, offend, degrade or humiliate a person (whether that person is a fellow solicitor, client, member of the public or witness). He then engaged in protracted unwelcome pursuit of Ms Hill and when, after a “bombardment of emails” over several months  she remained only professional towards him, Mr Hughes’ tone changed. For example, he emailed Ms Hill “...To be honest I can see you would get there like in a timeframe I can live with if I was at full speed and we were lovers but your work output is not there otherwise. Just look at what you achieve and it will not pay the bills and make me a profit on any view I am afraid. That is the harsh reality of business. I need a lover and well if it is not you well...see my other emails...” [at 93]. And later the same day: “... I have tried my best with training and will continue to do so as long as you assure me you will not make a complaint or sue me. Up to you. I always fight the good fight btw...” [at 95]. Mr Hughes did indeed fight. In the proceedings he attempted to blame Ms Hill for his behaviour, describing her clothing, perfume and manner [266–267]. He raised irrelevant private matters, gleaned while acting for her, to “silence or bully” her [261–263]. Judge Vasta found the claims “outrageous” and, along with other aspects of Mr Hughes’ conduct, relevant to awarding aggravated damages. The decision in Hill v Hughes came shortly after the International Bar Association (IBA) report, ‘Us Too: Bullying and Sexual Harassment in the Legal Profession’ (2019).3 The IBA report finds, unsurprisingly, that sexual harassment and bullying are prominent and tend to be directed mostly at younger and junior female lawyers. Consistent with other similar examinations, 4 reporting of both was found to be rare, with the status of the perpetrator and the legitimate fear of repercussions having the most chilling effect. Interestingly, very recent research coming out of the United States examining the impact of the #MeToo movement has found that bias against women who report sexual harassment has measurably reduced in that jurisdiction since October 2017 as more women disclose.5 We should expect the same will happen here; times are changing, albeit slowly. As Judge Vasta noted in conclusion: “It is the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men”[at 270].