High standards of working and intellectual rigour have led some barristers and judges to believe they are always right and cut others down to the point of humiliation, the Criminal Bar Association has told a probe into bullying in the profession.
An independent review was commissioned by the Bar Council following a rise in the number of people who said they had experienced or witnessed bullying, harassment or discrimination.
In its submission the CBA says that too often inappropriate conduct is wrongly justified by ‘higher’ objectives, such as a barrister trying to win a case or a judge trying to get through a crowded list. Problems are often most noticed by those who have joined the bar from other sectors.
The profession prizes itself on high standards of working and intellectual rigour, the CBA said. ‘Often this leads both barristers and judges to present their views as indisputably right and to be intolerant of challenge, disagreement or differing perspectives. This can lead to the belief that it is acceptable to cut others down during submissions, sometimes to the point of seeking to humiliate.’
Sexual harassment comes from a small minority of perpetrators, but in many instances where complaints are made, the accused has had a ‘reputation’ for several years, the CBA said. ‘This reflects a culture of tolerance, a fear of the consequences or reporting and a fear even of calling out inappropriate behaviour.'
The CBA recommends mandatory training for all practising barristers on issues of bullying, harassment, and sexual harassment, as well as equality, diversity and inclusion.
To address a lack of confidence in the bar’s complaints procedures, chambers should be required to offer independent mechanisms to resolve complaints. An independent ombudsman should be appointed to oversee complaints-handling by chambers.
On a lack of confidence in the Judicial Conduct Investigation Office’s complaints procedures, the association says the three-month time limit for complaints should be relaxed and evidence on the course of conduct should be admitted.
To support those facing complaints, chambers should be made aware of their duty to recognise potential vulnerabilities and ensure appropriate support is provided.
On whether existing mechanisms appropriately balance the need for confidentiality and transparency, the CBA ‘believes the ordinary principles of open justice should continue to apply to hearings before BTAS [Bar Tribunal and Adjudication Services]. We do not believe that it would be appropriate to have anonymity for respondents’.
