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The Nation: #MeToo Interview panel

On Newshub Nation Saturday 24 March:
Lisa Owen interviews a special panel of guests: Kathryn Beck from the NZ Law Society; former lawyer Olivia Wensley, who gave up the law after years of harassment; Elizabeth Hall from the Criminal Bar Association; and Jackie Blue from the Human Rights Commission.

Lisa Owen: Well, by now, most New Zealanders will be aware of the Me Too movement. Originally started by an American civil rights activist, it rose to prominence last year when actor Alyssa Milano encouraged victims of sexual assault or harassment to use the phrase on social media. Within weeks, the ‘MeToo’ hashtag had been used millions of times. Stories started to pour out of sexual aggression and abuses of power in Hollywood and beyond. Even international charities weren’t immune. Here, our Human Rights Commission, the organisation tasked with protecting New Zealanders, was caught up in its own sexual harassment controversy. And the Prime Minister has been forced to defend her party’s poor handling of sexual assault allegations at a summer camp run by its youth wing. But much of the focus has been on the legal profession, with a growing number of people talking about a culture of harassment and bullying. Well, to discuss the problem, I’m joined by Human Rights Commissioner Jackie Blue, Elizabeth Hall from the Criminal Bar Association, former lawyer Olivia Wensley, and Kathryn Beck, president of the New Zealand Law Society. Thank you all for joining me this morning.
Jackie, if I can start with you. Let’s address the elephant in the room, eh? The Human Rights Commission has come under fire for the poor handling of a sexual misconduct complaint within its own ranks. How can New Zealanders trust what you say today and trust you to protect their rights when you couldn’t protect a vulnerable person?
Jackie Blue: It’s really disappointing what’s happened to the Commission, and I know it’s been incredibly tough on the amazing staff we have. Rest assured, we absolutely should be modelling best practice, and you can be absolutely guaranteed that we will listen to those recommendations when the review is finally finished in April, and absolutely make right the situation. But, Lisa, the review is about our internal processes. It’s got nothing to do with our external complaints and inquiries or mediation services, which are world class, in my opinion.
Elizabeth Hall, nobody seems to know what the size of the problem is, but the Criminal Bar Association has done a survey on about 300 of its members, isn’t it?
Elizabeth Hall: That’s right.
So how many of them said that they had experienced or witnessed harassment or bullying?
Hall: 88%, so that indicates that there is a real problem. I should be clear that the survey was of the criminal bar, so criminal practitioners, both prosecution and defence, but also bearing in mind that many criminal practitioners work within either small firms or as sole practitioners, as barristers or employed barristers. And so there’s often not the hierarchical support structure of an HR department or colleagues that are superior to the person that’s maybe causing the problem. And so that’s why the Criminal Bar Association was really supportive of the survey that I rolled out, because it is quite a close examination of what’s happening for criminal law particularly.
And what sort of things did they tell you about?
Hall: Look, it’s insulting, mocking-type behaviour. 70% of people who responded said that that was an issue. Criticism which is unjustified or baseless. Shouting at people. And, of course, you know, hot on the table today, unwelcome sexual attention. 28% of the people that responded said that they had witnessed or experienced that in the last four years.
Jackie, are you surprised by those numbers?
Blue: No, I’m not, and in actual fact, I went over the last five years, and we have evidence in New Zealand that we have a problem with culture in the workplaces. Public Service Association in 2012 surveyed 10,000 of their women members. 43% had been bullied. 33% discriminated. State Services Commission in 2013 did their own survey. 25% reported bullying by managers and co-workers. Of course, in 2014 we had the Roger Sutton case. 2015, New Zealand medical students were calling for an inquiry.
So it’s a litany of bad behaviour.
Blue: Absolutely.
Kathryn, I’m wondering, has the type of behaviour that’s just been detailed by Elizabeth in this survey, has it been an open secret in your industry, as some people claim?
Kathryn Beck: I think that the type of behaviour that you’re hearing, we’ve heard about it before. I suppose that the thing that we’re really hearing now and we’re listening to very strongly is it’s not just the odd case here and there. This is a major problem. It’s far more prevalent than I think anyone anticipated. And the snapshot that Elizabeth has done of the criminal bar, and, of course, that’s a specific part of the profession, gives us a very good indication of what’s happening there. What we’re also going to be doing is our own survey of all lawyers, so that’s all 13,600 of them.
But people would say, ‘Why has it taken so long?’ Because you must have heard the whispers.
Beck: Well, listen, in hindsight, we could always say we could’ve done this sooner. I think probably wrongly we had thought that we had systems in place that people knew how to do the right thing; that some of the stuff was happening, but it would resolve itself. I think what was happening within law firms in particular was that people were thinking of these as employment problems or Human Rights Commission problems, and that’s the way in which they would be channelled.
And not their problem?
Beck: And not a professional problem. And yet what we know and what we see very clearly now is that this is an issue of professional conduct. This should not be happening. We should not be treating each other like this as colleagues, as employers, as judiciary or anybody within the system. We should be treating each other with respect.
Okay, Olivia, you have experienced harassment in this profession. You actually left it as a consequence. Do you think enough has been done by organisations like the Law Society to identify the extent of the problem and address it?
Olivia Wensley: To date, absolutely not. I mean, there’s a good start. I’m glad that we’ve got this dialogue going and now we’re starting to talk about it, which is great. But in my profession, which spanned almost 10 years, I’d never been asked — I’d never been asked if I’d experienced sexual harassment. Sexual harassment is not a word. I mean, Kathryn, you’ve said yourself that in the complaints that have been made… it’s called ‘discourtesy’ under, you know…
We’re not calling it as it is.
Wensley: No, we need to call a spade a spade. It is sexual harassment. I mean, under the current legislation, rape is considered discourtesy, treating another colleague with discourtesy, another member of the bar. It’s just…. We really need to change something here and actually start calling a spade a spade.
Kathryn?
Beck: Obviously rape is not treated as discourtesy. There is nothing in our current legislation that describes that this type of particular behaviour would be misconduct — clearly, that sort of behaviour would clearly be misconduct — or unsatisfactory conduct, which are the two phrases that we tend to use. Where someone is convicted of a criminal offence, which obviously rape is, then that comes within the misconduct sphere. That would normally be dealt with by our disciplinary tribunal. So we haven’t tended to label particular behaviour, but what we’re hearing—
Should you?
Beck: Well, yes, maybe we should, and that’s what we’ve got a regulatory working group looking at our current system, but not just the regulatory framework; at actually how our processes and practices work within that. Dame Silvia Cartwright will be chairing it, and she will be looking at one, how we receive and deal with complaints, how we support victims when they’ve made a complaint, and then secondly, the action that we can take within that.
Right. And I want to talk about that a bit later on, but I also want to get back to Elizabeth, because you’ve got some more numbers that we want to have a look at. So despite the high numbers of people who said they had experienced or witnessed sexual harassment or bullying, less than about 20% of them reported it. So why do you think that was the case?
Hall: That’s right. So about 16% of people who had experienced in the last four years have reported it. The survey also asked people, ‘If you didn’t report it, why not?’ And some of the responses were that they were worried about how they’d be perceived if they reported something, that they themselves would become the focus or the target. And particularly in criminal law, we’re practitioners and advocates, we are expected to be strong, robust, firm characters that don’t put up with rubbish. And so to come along and say, ‘Actually, someone’s treating me in a way that I don’t like,’ the perception that you’re weak in some way or making yourself vulnerable in some way, that’s causing a large number of people not to report. Also, there’s a perception that it won’t make any difference. This is a cultural thing. This is an ingrained way of treating people. If I complain, that person’s not going to change.
And what about professional repercussions? Were they worried about that?
Hall: Absolutely. And also we talk about defining harassment, but a number of the people who responded said that it’s difficult to define, it’s difficult to explain. And a lot of the times, they’d go back and talk to people and say, ‘Well, you kind of had to be there. On paper, it’s not what it seems.’ And then they start to devalue it - ‘Maybe it is me, and maybe I did read the situation wrong.’
And that’s where sometimes, arguably, you need someone to stand up for you as well, or beside you. So, Kathryn, there is a statutory obligation for lawyers to report the misconduct of other lawyers. But it seems like not many are reporting this kind of behaviour. So do they just not know the rules, or are they complicit in covering it up?
Beck: I think there’s a couple of things that have been happening here. Firstly, as I say, people haven’t thought about it in that professional context. They’ve thought about it as either an employment or potentially we go through the Human Rights Commission. They haven’t applied that professional lens. And also, in terms of misconduct, as Olivia had said, lawyers tend to go, ‘Is this misconduct? Is this unsatisfactory conduct?’ Misconduct, you have to report, right? Unsatisfactory conduct—
If you see something that you would identify, as the survey has, as bullying or harassing behaviour, isn’t that enough to say, ’Okay, I have to report it’?
Beck: I think that’s a good question. What we need to help people understand is that this is unacceptable behaviour, and what we don’t want them trying to do is second-guess themselves as to whether this is, and which level is this. Is it unsatisfactory? Is it misconduct? The rules are different. How do we handle that?
Olivia?
Wensley: Yeah, I think, come on, they’re lawyers; they do know. Russell McVeagh never reported. How is what happened there not professional misconduct? And how was it not reported to the Law Society? Of course, lawyers know. They know, of course. There’s a real problem in this.
So complicit in turning a blind eye?
Wensley: Yes, yes, and using NDAs to cover this behaviour.
So non-disclosure agreements, for people who aren’t lawyers.
Wensley: Yes, non-disclosure agreements. So they sweep it under the carpet. Of course, why wouldn’t they? They’re not being watched. There’s no mandatory reporting obligations. There should be, and they should be made— Well, there is. It should be made very clear. It needs to be made patently clear exactly what they must report. So in other countries, there’s regulators that actually keep an eye on this kind of thing. In New Zealand, the main problem is the legal profession here is small, everyone knows each other, and there are grave career implications if you speak out.
Jackie, do you agree with that?
Blue: Yes, I do. You’re damned if you do, you’re damned if you don’t. One way or the other, you leave the workplace because it’s just too hard. I think the Australian Human Rights Commission has done a huge amount of work on sexual harassment in their workplaces. They’ve done four surveys since 2003. They’re in the field at the moment with the fourth one. The third one, 2012, showed that one in four… and one in six men over the previous five years had been sexually harassed. Generally, women were far more likely to be harassed by a boss. Huge gap in understanding what sexual harassment was all about. Unfortunate increase in negative impacts of reporting sexual harassment, but there was an improvement in bystander intervention, which everyone agrees is so important.
PART TWO
If I can come to you, Elizabeth. Bullying is often about power. So what did your members tell you about who is doing the bullying and the harassing?
Hall: Well, the people that responded to the survey said that on 65% of the occasions, it was judges; colleagues or groups of colleagues 43% of the time; and opposing counsel 33% of the time.
Judges? Judges? 65% of the time?
Wensley: Judges are terrible! They are.
Hall: Yeah, but, look, if you took this survey 20 years ago, that result would have been 100%, quite frankly. The way that judges and modern judging is happening is far more progressive than it was. And what I think that result demonstrates is a couple of things – one, that judges have come up through that system themselves, have been treated like that, of part of that culture, and then have made a conscious decision not to judge like that and not to be like that. But also the pressures on the judiciary are immense. They have an incredibly stressful job. I can see your face.
But that’s not an excuse is it, Jackie?
Blue: No.
Hall: No, but if you want to stop the behaviour, you’ve got to understand why the behaviour’s happening. It’s not enough just to hang people out to dry, vilify them, name and shame. That’s not going to do it. We want a productive conversation about this. And Justice Kirby in Australia — the former president of the Court of Appeal in New South Wales and a former High Court judge — started talking about this in the late ‘90s. And there’s a number of literature articles about it talking specifically about this topic of judge bullying, because no one really wants to talk about it.
OK. Well, Kathryn, I want to pick up on this point, because Andrew Little has said the problem with the Law Society is that it’s dominated by law firms and senior practitioners. So is the society an old boys club that’s protecting itself?
Beck: Well, no, I don’t think I’m an old boy. But, listen, the nature of the Law Society is that often senior people have the more front-facing roles, if you like. But it is an organisation that looks after all levels of the legal profession, if you want to talk about it in those terms. We’ve got a lot of young lawyers groups; we do a lot of work with the young lawyers groups; we work with the law firms.
If that’s the case, though… I just want to pick up on something Olivia said. If that is the case, then why did no one — say, in the example of Russell McVeagh — apparently no one reported it to the Law Society. Is that correct?
Beck: Well, someone did come to the Law Society, of course. One of the people affected did come and meet with our executive director. And somebody else also met with the regulatory people to work out whether they wanted to make a complaint.
A victim?
Beck: Yes.
Wensley: But when? It was covered for years. It was.
Beck: I mean, they came to us…
Does it surprise you that no one from the profession came forward?
Beck: What surprises me is, I suppose, the level of the problem that we’re hearing about. And the fact that we haven’t had any complaints of the sexual harassment nature, in particular in the employment environment, within our system, we know is a problem. That’s a significant problem. If they’re not thinking of us as a place to come, that is a problem for us, and that’s something we’re working on and taking seriously.
Wensley: It’s a huge problem. There’s so many vulnerable people — I used to be one of them — in this profession who cannot speak out. You get moved on. You get moved on very quickly if you rock the boat. Lawyers are replaceable. There’s an endless supply of graduates. Law schools are producing too many graduates. You can be out the door within seconds if you dare upset anything, so you have to put up and shut up. It’s like it everywhere.
Hall: Can I also say... sorry?
Yes?
Hall: I think also, part of the problem is that the Law Society framework is quite rigid. You either don’t complain, or you complain and be prepared to name yourself, name the person that’s been doing it, provide a formal statement, and really go, basically, after the jugular of the other person, right? And oftentimes, people don’t want that. They just want the behaviour to stop. They want a way of other people knowing about it, the situation being redressed, but without necessarily ending the career of the person that’s doing it. There needs to be a more modern way of looking at it.
Wensley: The structure is not right in New Zealand. In other countries there’s independent regulators that actually prevent this happening. I don’t think that it’s right that the Law Society that is responsible for issuing practising certificates is also the same society monitoring it. I’m sorry, there’s a huge conflict there.
Beck: Even overseas, though, we are not alone. Even some of the organisations that are entirely independent, such as UK, England and Wales, they have only, I think, over a period of four years, got 27 complaints of sexual harassment. Now, they’re a massive profession. So that’s significant — as Jackie has said — significant underreporting. So it’s not so much a question of regulation, although, absolutely, we can get that better.
Wensley: Of course it is.
Beck: No, it’s a question of culture. We need to change the culture of our profession.
Wensley: Change the culture through regulation and by having action and by having consequences, because at the moment there are no consequences.
I want to talk about consequences in a second, but let’s just bring Jackie in here. So, Olivia has raised the concern that the fox is in charge of the hen house, basically. So, the Justice Minister has reserved the right to step in and have an independent inquiry into the Law Society. Have we passed that point? Does there need to be an independent inquiry?
Blue: Possibly. You need someone looking from the outside in at what’s happening. It’s a huge issue, and you’re all very much a part of it and very embroiled in it for different reasons. And so, yeah, there could be a very real place for an independent review, and that wouldn’t be a bad thing to happen. Just to make a comment about the reporting. I think the Law Society could take a leaf out of the New Zealand Defence Forces, what they’re doing. Operation Respect was launched in 2016 as a result of sexual assault and sexual violence and inappropriate behaviours. Apart from doing sexual ethics and healthy-relations training to all the personnel, which they’ve reached 9000 out of 14-or-so thousand, they have instituted a way of reporting. People can either do restricted reporting, which means they’ve wanted to say, ‘This is what happened to me, but I don’t want to take it any further, thanks very much.’
They just want you to know.
Blue: Yeah. And the other one is unrestricted, they want to go the whole hog, ‘I want to make a formal complaint.’ If they follow the Australian Defence Force, who’ve done this type of reporting, the unrestricted reportings will increase as people get confidence in the process.
Beck: That’s exactly what we’re looking at. And in fact, Defence Project Respect, we’ve been speaking to people that are doing that. So part of what the regulatory group will be looking at is looking at our systems. You can make a confidential report at the moment. The question is then — where do we go with that if, in fact, someone completely denies it? But the confidential reporting, that pathway that you’re talking about, means that the person can make a report, can be fully supported. We hold the information. The extent to which we can deal with it is in the complainant’s hands often.
But you can see a pattern of behaviour if you keep things like that well.
Beck: Exactly. And that’s exactly what we’re looking at is whether we can bring in some systems like that.
Olivia, you’ve raised some questions about reporting and recording incidents. Do you think we should have a mandatory system where companies over a certain size have to declare how many confirmed cases of sexual harassment?
Wensley: Of course. Yes, I do. I do. And it should be treated like health and safety is. There’s mandatory reporting obligations.
So available to the public? I can look up your company and see how many cases?
Wensley: Yes, transparency is good, right?
Jackie, would you agree with that?
Blue: Getting the data is difficult, because it’s spread among MBIE, Human Rights Commission has data, ACC will have people who are actually off on ACC through sexual harassment.
Isn’t that the problem? We just don’t have a central…
Blue: No, we don’t have a repository, but I think it’s like the Defence Force; they thought, ‘Should we have a survey and work out how bad it is?’ They thought, ‘No, we just need to get on with it now and do something about it.’ So data’s good, absolutely. We can see trends. It’s going to be hard to get all that data in one repository. We can try.
Wensley: The quickest way to change this cultural problem is to actually have repercussions and name and shame.
...the offenders if there’s a misconduct upheld?
Wensley: Yes. And the firms that are covering. There are firms that are hiding these perpetrators, who are practising today.
Hall: Look, can I say, I think that’s one way of doing it, and it’s good that we’re talking about options and ways that we handle it. But from a changing of a culture perspective, my concern is that if you make a very strict way of very stern consequences, then you may get underreporting, which is what’s already happening. And what the results reveal is that 92% of respondents talked about it with colleagues. So they’re not staying silent; they are talking about it. They’re just not reporting it. And so we need to work in with, perhaps, a different way of looking at confidential reporting, anonymity, training and looking at the cause of why people are doing it.
Wensley: They can’t be reporting to the society that their bread and butter comes from. I’m telling you now, that is the fear. I have been contacted by hundreds of women and men, and they cannot speak out because of their career repercussions. They are afraid.
So that is a power imbalance. Jackie, how do we address the power imbalance and give the power back to the victims?
Blue: I think it comes down to some practical things — ensuring that the workplace has health and safety, and that means clear communication from the top; acting on a complaint or investigating immediately; having pamphlets and material around what sexual harassment is; having a sexual harassment policy which is accessible,…
Wensley: That’s enforced.
Blue: …it gives examples. Like, you were saying there was difficulty knowing what was what. But you give examples of what sexual harassment is. And, of course, sexual harassment training. Start with the people in power and then roll it out to the rest of them.
Okay, here’s the thing, then. Olivia has raised the issue that some people are repeat offenders, and she feels that they’re not being punished to a high enough level. How many strikes before you get the boot?
Beck: Well, I mean, it depends on the circumstances, doesn’t it? So if somebody is guilty of misconduct, it goes to our tribunal, and that tribunal will decide whether that is someone that should be suspended or struck off. Criminal convictions, for example, sexual assault — of course. We often see strikings-off for that.
Wensley: But you’ve said on public record that there’s been no complaints of this.
Beck: And I’ve acknowledged that, and so we’ve— Well, except if there was a criminal conviction, of course.
Wensley: But how can they be struck off if they’re not complaining?
Beck: We acknowledge that we have a problem with under-reporting significantly in this area — in particular in the workplace situation. Not so much in the colleague to colleague. I think that we do get some reporting, not enough. And lawyer to client, we get reporting there. Probably under-reporting as well, as there is in all of these issues. What we’re looking at doing is rolling out an education programme. Obviously, we’ve got this regulatory working group. We’ve got a seminar. So we’re trying to start some education. We will be having some meetings across the country too and get some panels.
I can hear Olivia sighing here.
Wensley: I’m sorry. Education. Education. Consequences — hit these people in the pocket. If you hit firms and offenders in the pocket, you’re going to see real change. Big fines. Can we talk about this Eichelbaum decision that’s come out? So, he got fined $10,000, and the decision that was published, it doesn’t even closely reflect the complaint. I’ve read the original complaint. I’ve read correspondence from him that is depraved, and I cannot even repeat it on national television. It’s terrible, and the official reporting on it didn’t even touch the surface. It was very sanitised.
So you’re saying slap across the wrist with a wet bus ticket?
Wensley: It was the equivalent of 10 hours’ work for him, and he spent two years—
We’re almost out, but I feel you need a right of reply to that, Kathryn. Very quickly.
Beck: We have a standards committee that would’ve looked at all of this — what’s in the complaint and then what’s in the decision might be different things. Our standards committees, I think, take their obligations very seriously. A censure, you have to notify your insurer, $10,000 fine isn’t insignificant. Neither is costs. Publication of his name, which, of course, he attempted to stop at one point. But again—
Right, so publicly outing him.
Wensley: He had name suppression for two years while she was getting harassed.
Hall: Can I just say as well, this problem didn’t arise overnight. It’s been brewing for decades. We’re not going to solve it overnight, but the first step is what we’re doing, right? We are talking about it, and we’re complaining to the Law Society about it, and we’re airing our dirty linen.
Beck: We know that people will now come to us. We know that.
That is a good place to leave it.
Transcript provided by Able. www.able.co.nz

________________________________________
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