Royal Commission into the Management of Informants
There were further revelations this week in relation to Victoria Police’s use of informants, dating back to 1995, in circumstances involving grave duties of confidentiality by a barrister and, potentially, a number of other professionals. The Victorian Bar has no information to suggest that the other professionals are members of our Bar.
The new information reinforces why the Victorian Bar has welcomed the Government’s decision to call a Royal Commission into the Management of Informants. It is vital that the public have confidence in the integrity of the justice system. That confidence has been undermined.
It would be wrong, and very unfair to the Victorian legal profession, including the 2,100 practising members of the Victorian Bar, to think that conduct of the kind that has been alleged is anything other than wholly aberrant.
In my role as President, I have come to know the members of our Bar better than most. We are a college of professionals with a profound commitment to the administration of justice, the courts and our clients. Our members have been as disturbed as, if not more disturbed than, the wider community by the matters that have given rise to the Royal Commission.
The Bar’s educational, continuing professional development and professional standards functions are robust. The ethical and disciplinary regimes and bodies to which we are subject operate without fear or favour and hold us all to the highest standards of professional conduct. As a result of these and other matters, the public can, and should, have absolute confidence in the integrity of the Victorian Bar and its members.
A reminder for members who are disturbed by recent events that the Bar has a range of available support mechanisms. For guidance in relation to ethical matters, members of the Ethics Committee are always available. For assistance in coping with feelings of distress, the Bar funds 24/7 crisis counselling for members and their families. And—perhaps most powerful of all—we are a cohesive institution with engaged and committed members, formal and informal mentoring and support structures, and a genuine open door policy. That open door policy, of course, begins with me and the other members of Bar Council.
My interview with Jon Faine on ABC Radio yesterday can be heard at the six minute mark on the ABC website here.
Sexual harassment in the legal profession
On Monday, the Legal Services Board and Commissioner announced a long-term program focused on addressing sexual harassment within the legal profession. The Victorian Bar welcomed the announcement and has committed to constructive participation in this important project.
The Victorian Bar has a zero tolerance approach towards sexual harassment.
Engaging in sexual harassment is a breach of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (rule 123) which can, as with other breaches of the conduct rules, lead to serious disciplinary consequences. But none of us needs to know that sexual harassment is contrary to the conduct rules to know that it is wrong, profoundly disrespectful and in some circumstances criminal.
The Bar Council has adopted a Policy Against Sexual Harassment. Apart from stating our values as an institution—that all barristers and those engaging with barristers have a right to conduct themselves free from sexual harassment—the policy provides guidance on the forms that sexual harassment can take and outlines the various options that are available to those who experience or witness sexual harassment at the Victorian Bar.
Sexual harassment is not limited to physical contact or gestures. It may take the form of casual comments, jokes, emails, unwanted invitations, or repeated or persistent personal questioning. The intent behind the person’s behaviour is not relevant. Interactions that are consensual, welcome and reciprocated are not behaviour that is sexual harassment.
It is clear from the results of last year’s Wellbeing at the Victorian Bar survey that underreporting of sexual harassment is a significant issue at the Victorian Bar. The reasons for underreporting are complicated and, I suspect, not fully understood.
But all members of the Victorian Bar should be in no doubt that sexual harassment is unlawful and unacceptable; and that the Bar is committed to, among other things, encouraging reports of unacceptable behaviour; handling complaints made in good faith in a confidential, timely and fair manner that is free from reprisals; and continually improving training, awareness and standards of conduct.
I encourage all members to familiarise themselves with the Policy Against Sexual Harassment and the Bar’s other internal conduct policies. I also encourage members who have experienced or witnessed unacceptable conduct, such as sexual harassment, to avail themselves of the grievance measures outlined in the policies.
The highlight of the week for me was, on Monday, announcing the first appearances of Victoria’s newest silks in the High Court in Canberra at the annual silks bows ceremony, before the Full Court and a gallery full of families and friends of those appointed. There was then the traditional new silks dinner in the Great Hall of the High Court, with addresses by Australian Bar Association President, Jennifer Batrouney QC and Justice James Edelman of the High Court, and a reply by new NSW silk, Paresh Khandhar SC. The dinner was attended by all members of the High Court, many heads of jurisdiction and other judges from courts around Australia, the Commonwealth Attorney-General and shadow Attorney-General, the Presidents of the independent referral bars of Australia, representatives of the national peak bodies for the legal profession, and many others. A great night that will always be remembered by our newest silks. (But now, enough already with the celebrations, back to work.)
Updated Silks Undertaking
Every year, the President of the Bar writes to the new silks to congratulate them, and also to ask them to step up as leaders in tangible ways.
In recognition that there is work to be done before the Bar will fully represent the community it serves, and overcome entrenched discrimination against women and members from diverse cultural, linguistic, faith and other backgrounds, I have asked the new silks, as leaders of the Bar, to adopt:
By signing the Silks Undertaking, silks acknowledge that they share the Victorian Bar’s commitment to promoting equality, diversity and inclusion in the legal profession, including its commitment to providing a workplace that is free from bullying and discriminatory behaviours, and is free from sexual harassment.
The updated Silks Undertaking includes a commitment to use reasonable endeavours to recommend to instructing solicitors and clients that members of counsel from diverse backgrounds be briefed in matters in which they have relevant seniority and expertise, experience or interest.
I will be writing to all silks in the near future, inviting them to adopt the revised Silks Undertaking and, if they have not done so already, to adopt the LCA’s Gender Equitable Briefing Policy.
The Undertaking and Policy are more than mere words and sentiment. They demonstrate the commitment of the Victorian Bar, as an institution, to diversity and inclusion in all its forms, and are a tangible way for the leaders of the Bar to demonstrate to all members, and the broader community, that that commitment is a core value of the modern Victorian Bar and its members.
A busy week
As well as the silks bows events, I attended an Australian Bar Association Council meeting in Canberra, the Victoria Law Foundation legal laneway breakfast here in Melbourne, and the welcome for Judge Karl Blake in the Federal Circuit Court. I also dealt with a raft of media and other inquiries concerning both sexual harassment in the legal profession and the Royal Commission into the Management of Informants.
Behind the scenes, during the week, I met with the Chief Justice of the Supreme Court and the President of the Court of Appeal, and the new President and CEO of the Law Institute of Victoria. On Wednesday, I co-chaired, with President Maxwell, a roundtable discussion on sexual harassment in the legal profession. The executive of the Bar Council met twice, and the whole of the Bar Council met with a packed agenda on Thursday evening. On Sunday, the Bar Council is convening again: this time for a strategy day with a view to planning out how we can achieve our aims for the year.
Welcomes and appointments
Wendy Harris QC’s superb speech at the welcome for the Honourable Justice Paul Anastassiou in the Federal Court last Friday can be read here.
As mentioned above, I spoke briefly at the welcome for Judge Blake in the Federal Circuit Court on Wednesday on behalf of the Australian Bar Association and the Victorian Bar. The substantive speeches at that event were made by the Hon Kelly O’Dwyer MP, on behalf of the Australian Government, and Stuart Webb on behalf of the Law Council of Australia and the Law Institute of Victoria.