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Inappropriate personal conduct

Inappropriate personal conduct in the legal profession

Inappropriate personal conduct includes sexual harassment, discrimination and workplace bullying. It is now well documented that the legal profession has a problem with sexual harassment. That is not however reflected by the number of complaints the Commissioner receives about this type of conduct. The Commissioner therefore wants to make sure that no-one is deterred from making a formal complaint about this type of conduct, and that anyone who needs it has sufficient information about the complaints and investigation process before making such a complaint.

Anyone who has been subjected to, has witnessed, or has knowledge of, sexual harassment, discrimination or workplace bullying by a member of the legal profession can make a complaint to the Commissioner. It may be that a person who has been subjected to, or has witnessed, such conduct may be reluctant to make a formal complaint, at least initially, and may wish instead to make a confidential enquiry or even an anonymous enquiry. Ms Deslie Billich who has specialised experience in this area can be contacted directly and confidentially on 08 8456 8870, or by email at dbh@lpcc.sa.gov.au.

The Commissioner does not, and will not, tolerate sexual harassment. The Commissioner will:

  • investigate any complaints the office receives about this conduct;
  • have discussions on an anonymous basis with potential complainants who wish to discuss the process of making a complaint, and procedural aspects related to making a complaint;
  • where appropriate, make an own initiative investigation if evidence is provided, taking into account repercussions and consequences for the complainant but ensuring procedural fairness is afforded to the practitioner complained of; and
  • use the full powers provided to the office under the Act to address this type of behaviour.

Rule 42 of the Australian Solicitors’ Conduct Rules and rule 117 of the South Australian Barristers’ Rules prohibit conduct that constitutes discrimination, sexual harassment or workplace bullying. The Commissioner is committed to addressing such behaviour and eradicating it from the legal profession.

The Commissioner encourages anyone who has been subjected to, has witnessed, or has knowledge of discrimination, sexual harassment or workplace bullying by someone in the legal profession to notify us.

Making a complaint/notification

Anyone can make a complaint about sexual harassment. Not only a person who has been the subject of sexual harassment, but also a person who has witnessed such conduct, and/or has knowledge of it. It is not unusual for there to be “bystanders” who witness such inappropriate personal conduct. You are not required to obtain permission from any other individual, from human resources or any other member of a legal practice, or to have attempted addressing the legal practitioner’s conduct yourself, prior to making an enquiry and/or making a complaint.

In some circumstances, you may wish to make an anonymous enquiry. The Commissioner has adopted a confidential process to enable discrete and direct enquiries. If you wish to discuss confidentially what is involved in making such a complaint, and the way in which such a complaint is handled and investigated, you can contact Ms Billich directly. These contacts will be treated with the utmost respect, sensitivity, and confidentiality.

If you provide information about sexual harassment anonymously, the Act does not permit the Commissioner to commence and conduct an investigation of it. Section 77B(3a) provides that, for a complaint to be treated as a formal complaint, and to be investigated, it must identify the complainant. Cognisant of the sensitivity of such complaints, and the issues that face complainants, the Commissioner has established this dedicated and discrete contact point for you to use. We understand there are powerful and compelling reasons why people who have been sexually harassed have not felt they can raise these issues before. But we will do what we can to help overcome any such concerns. If you want the Commissioner’s office to assist with an anonymous enquiry, please use the contact details previously referred to.

If you provide the Commissioner with your name and contact details but request that they are not disclosed to the legal practitioner, or if you contact the office anonymously, there may be limitations on what the Commissioner can do with any information you provide. Any information provided by an anonymous complainant may assist the office in monitoring and gathering data regarding inappropriate personal conduct by a legal practitioner. The Commissioner may consider it appropriate to revert to an anonymous complainant and/or enquirer, advise that further complaints or enquiries have been made about that practitioner, and ask whether in those circumstances they might agree to disclose their identity and make a formal complaint.

What we will do with a complaint

If you have no objection to your identity being disclosed to the legal practitioner, the Commissioner will investigate allegations of inappropriate personal conduct, and take disciplinary action against any legal practitioner who he is satisfied has engaged in such conduct.

The Commissioner must at all times comply with his statutory obligations. One of those obligations is to ensure that he maintains the confidentiality of the complaints he receive. But the Commissioner also has an obligation to report serious criminal or other offences to police and other authorities when there are reasonable grounds to do so. If the Commissioner decides there is such an obligation and provides the name of a legal practitioner to such authorities, it is possible that this would result in the legal practitioner or another person becoming aware of your identity based on the information you have provided, albeit anonymously. However, you can be assured the Commissioner’s office will do everything it can to safeguard the confidentiality of any information you are willing to provide, including contesting any such applications for disclosure in the Tribunal or a Court, and seeking immunity from disclosure on public interest and privilege grounds.

What is sexual harassment

Sexual harassment includes, but is not limited to, an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature that makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

Without being explicit or exhaustive, some examples of sexually harassing behaviour include:

  • unwelcome touching
  • staring or leering
  • suggestive comments or jokes
  • sexually explicit pictures or posters
  • unwanted invitations to go out on dates
  • requests for sex
  • intrusive questions about a person’s private life or body
  • unnecessary familiarity, such as deliberately brushing up against a person
  • insults or taunts based on sex
  • sexually explicit physical contact
  • sexually explicit emails or SMS text messages

When a person has been sexually harassed, they may find it difficult to know how to address the situation. For example, the person who has been harassed may find it difficult to confront the harasser. Importantly, research shows that when a third party steps in and becomes an active bystander, it helps to discourage the harasser and emotionally support the victim. By speaking up, a bystander can contribute to a culture that condemns sexual harassment and sexist behaviour.

Sexual harassment in the workplace and in connection with the workplace

Sexual harassment can occur:

  • at work, at work related events (or where people are carrying out work related functions)
  • between people sharing the same workplace; and
  • at social events depending on the circumstances.

The workplace is not confined to the actual physical location of the workplace used by the employees.

If you would like further information, the South Australian Equal Opportunity Commission has useful information on its website regarding what does and does not constitute sexual harassment. See eoc.sa.gov.au.

Assistance for Complainants of Sexual Harassment

Sexual harassment causes harm. It can be difficult to know what to do if you have experienced or witnessed it. Evidence tells us that sexual harassment is often under-reported, or poorly managed. Therefore, access to accurate information and sensitive and confidential options is important to change this.

Other Resources

Making a complaint or an anonymous enquiry to the Commissioner’s office does not mean that you cannot take other steps, or contact other agencies.

If you are in danger or want to report a crime, you should contact SAPOL on 000.

If you require urgent medical or psychological assistance, you should contact your local doctor or the emergency department of your local hospital.

The following support services are also available to you:

Sexual assault crisis services

  • Yarrow Place on 8226 8777 or 1800 8176 421 for services for rape and sexual assault
  • 1800RESPECT on 1800 737 732 - 24 hours, 7 days a week.

General help lines

  • Lifeline on 13 11 14 - 24 hours, 7 days a week
  • Beyond Blue on 1300 22 4636 - 24 hours, 7 days a week
  • Women’s Information Service of South Australia- 8303 0590 or 1800 188 158
  • Relationships Australia South Australia on 1300 364 277 or 1800 182 325 (country callers)