No.21 Sexual Harassment in the Workplace

1. Introduction

1.1 Who should read this Guidance Statement? 

This Guidance Statement is for solicitors and law practices. 

1.2 What is the issue? 

The Queensland Law Society ('QLS') recognises the existence of sexual harassment in many forms within the legal profession. The QLS acknowledges the significant impact on those experiencing sexual harassment in their workplace leading to adverse mental health outcomes, as well as negative impacts on their careers and work environments. The issue is exacerbated by work cultures that are unsupportive or unreceptive to appropriate measures addressing such behaviours. The QLS considers that this behaviour is unethical.1 

The purpose of this Guidance Statement is to set out what sexual harassment is, the issue as it relates to the legal industry and what legal and ethical obligations employers and employees have. Relevant rules of the Australian Solicitors Conduct Rules 2012  ('ASCR') are identified below.   

1.3 Status of this Guidance Statement

This Guidance Statement is issued by the QLS Ethics and Practice Centre for the use and benefit of solicitors. 

This Guidance Statement does not have any legislative or statutory effect. 

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. 

This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee. 

2. Background

Sexual harassment in the workplace, and in the legal profession in particular, is a prevalent and persistent issue. A significant body of evidence over many years demonstrates that this is not isolated in nature, with an alarmingly large number of lawyers reporting having experienced sexual harassment.2 Two-thirds of those who have experienced sexual harassment do not make a formal complaint for numerous reasons, including but not limited to, fear of negative repercussions, fear of damage to their professional or personal reputation and lack of faith in the policies and processes relating to such complaints.3 These experiences might cause many people to leave the profession.4 

Sexual harassment is clearly linked to power relations and imbalances.5 

3. Ethical principles

ASCR

Rule 4 outlining solicitors' fundamental ethical duties provides:

  1. Other fundamental ethical duties
    1. A solicitor must also:
      1. act in the best interests of a client in any matter in which the solicitor represents the client;
      2. be honest and courteous in all dealings in the course of legal practice;
      3. deliver legal services competently, diligently and as promptly as reasonably possible;
      4. avoid any compromise to their integrity and professional independence; and
      5. comply with these Rules and the law. 


Rule 5 regarding dishonest and disreputable conduct provides: 

  1. Dishonest and disreputable conduct
    1. A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
      1. be prejudicial to, or diminish the public confidence in, the administration of justice;  or
      2. bring the profession into disrepute.


Rule 42 regarding anti-discrimination and harassment provides:

  1. Anti-discrimination and harassment
    1. A solicitor must not in the course of practice, engage in conduct which constitutes:
      1. discrimination;
      2. sexual harassment; or
      3. workplace bullying.

4. What is sexual harassment?

The ASCR does not contain a definition of sexual harassment.  Therefore, the definition of sexual harassment is contained within the applicable state, territory or federal anti-discrimination or human rights discrimination legislation.

4.1 Sexual Harassment under the Sex Discrimination Act 1984 (Cth)

Section 28A(1) of the Sex Discrimination Act 1984 (Cth) (‘the SD Act’) defines sexual harassment as when a person ‘makes an unwelcome sexual advance, or an unwelcome request for sexual favours’ to the person harassed, or ‘engages in other unwelcome conduct of a sexual nature in relation to the person harassed’. This would occur ‘in circumstances in which a reasonable person… would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’.6 Various circumstances are to be taken into account, including the relationship between the two people.7 Conduct of a sexual nature is further defined in s 28(2) of the SD Act as including ‘making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing’.  

The Australian Human Rights Commission’s Code in Practice for sexual harassment provides examples of sexually harassing behaviour as including:8 

  • 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; and
  • sexually explicit emails or SMS text messages.

A hostile work culture that includes unwanted comments and conduct of a sexual nature amounts to unlawful sexual harassment. In Bennett v Everitt, it was held that ‘[a]ll employees have a right to employment without sexuality or attempts at the introduction of sexuality, either direct or indirect’.9 This was further supported in Horne v Press Clough Joint Venture, where the Tribunal held that:10 

[i]t is now well established that one of the conditions of employment is quiet enjoyment of it. That concept includes not only freedom from physical intrusion or from being harassed, physically molested or approached in an unwelcome manner, but extends to not having to work in an unsought sexually permeated work environment.

Section 28B of the SD Act makes sexual harassment in an employment or partnership relationship unlawful. It specifically outlines situations between superiors and their employees (including prospective employees), fellow employees and partners. The provision covers any place where a person would carry out functions in connection with being a workplace participant. This prohibits sexual harassment at the workplace, during work hours, at work-related activities and on occasion, conduct outside of work hours (eg use of social media). It should be remembered that the “workplace” is defined as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”11 and can include the courtroom, a client’s premises, and your home (if you are working remotely). 

Sexual harassment under the SD Act is a breach of civil law, however some forms of harassment may constitute criminal offences like physical molestation or assault, indecent exposure, sexual assault, stalking or obscene communications.12 

Furthermore, employers may also be held vicariously liable for sexual harassment under the SD Act if the sexually harassing behaviour occurred in connection with the employment of the accused.13 Employers that can demonstrate they took all reasonable steps to prevent sexual harassment will not be vicariously liable.14 

Section 47C (which came into force on 13 December 2022) imposes a positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and victimisation by themselves and their employees, workers, agents or third parties.

4.2 Sexual Harassment under the Anti-Discrimination Act 1991 (Qld)

The long title of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) specifically highlights that the Act is designed to ‘promote equality of opportunity for everyone by protecting them from… sexual harassment and certain associated objectionable conduct’.15 In this context, sexual harassment per se and irrespective of where it occurs is prohibited under s 118 of the AD Act and given a wide meaning under s 119 of the AD Act, covering: 

  1. unsolicited acts of physical intimacy, such as patting, pinching, sexual touching or unnecessary familiarity;
  2. unsolicited demands or requests for sexual favours;
  3. remarks with sexual connotations relating to the complainant, such as unwelcome insinuations about a person’s sex or private life, and/or appearance; and
  4. any other unwelcome conduct of a sexual nature, such as offensive phone calls or indecent exposure.


Such conduct must be done either ‘with the intention of offending, humiliating or intimidating the complainant’, or ‘in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct’.16 

4.3 Work Health and Safety Act 2011 (Qld)

Practitioners should also be mindful of their obligations under the Work Health and Safety Act 2011 (Qld) which sets out the requirements and standards for a healthy and safe workplace and outlines what must be done to protect the health, safety and welfare of employees and other people in your workplace. 

In the anti-discrimination jurisdiction, courts have followed the Federal Court judgment in Richardson v Oracle Corporation Australia Pty Ltd17 in acknowledging a shift in community expectation that a workplace be safe and free from sexual harassment and that significant value should be placed on the experience of hurt and humiliation caused by such experiences. Courts and tribunals have emphasised that offenders often exploit a power imbalance in engaging in such conduct and that this exacerbates the harm caused. 

4.4 Criminal Code Act 1899 (Qld) 

Certain forms of sexual harassment can also result in criminal charges being laid. For example, any unwanted touching can amount to a sexual assault which is a serious indictable offence.18 Sexual assault includes unlawfully and indecently assaulting another person or procuring another person, without the person’s consent, to commit an act of gross indecency or witness an act of gross indecency. The maximum penalty for this offence is 10 years imprisonment but can increase to either 14 years or life imprisonment if certain circumstances of aggravation are present. The word ‘indecently’ has been given broad application to protect victims from such behaviour. It generally means a contravention of the standards of decent behaviour relating to sexual modesty or privacy.19 Such a determination is usually a matter for a jury.  

There are also many other offences that can be engaged in the context of sexual harassment such as unlawful stalking20 and the Commonwealth offence of using a carriage service to menace, harass or offend.21 However, the legislation does not encapsulate all the contributing factors that surround and perpetuate sexual harassment. For instance, Dame Margaret Bazley’s independent review on such behaviour reported several exacerbating cultural factors including excessive alcohol consumption, coinciding common behaviours of bullying and poor work management practises as well as gendered unconscious biases.22 

5. Case Examples23

The following brief case summaries relate to allegations of sexual harassment within legal workplaces. These cases are generally commenced under state or federal anti-discrimination laws. There are a small number of cases that have resulted in professional disciplinary prosecutions.

5.1 Hill v Hughes24

Ms Hill was employed as a paralegal at Beesley and Hughes Lawyers in regional New South Wales. The firm’s principal was a Mr Hughes. From July 2015 until late 2016, Hughes was found to have engaged in various behaviours including sending emails proposing a romantic relationship with Hill and repeatedly insisting on physical embraces. On a work trip, Hughes entered Hill’s room uninvited on two occasions. In the first, Hughes sat on her bed dressed only in his underwear and would not leave until she gave him a hug. On the second occasion, Hill again encountered Hughes in her bedroom when she returned from a shower dressed only in a towel. The trial judge also found that Hughes implied in correspondence that Hill would be replaced in her employment if she did not consent to a romantic relationship and the use of confidential information known about Hill obtained by Hughes in his representation of her as her solicitor to be ‘despicable’.

At first instance, the Federal Circuit Court found that Hughes had engaged in sexual harassment in breach of section 28B of the Sex Discrimination Act 1984 (Cth) and awarded general damages of $120,000, and aggravated damages of $50,000. Hughes appealed which was dismissed in a unanimous judgment by the Full Federal Court.

5.2 Council of the New South Wales Bar Association v EFA25

A barrister was found that his conduct amounted to unsatisfactory professional conduct when he engaged in “unwelcome conduct of a sexual nature”26 at a social function for barristers’ clerks.

5.3 GLS v PLP27

GLS undertook a practical legal training placement with a suburban firm in Victoria working for PLP as the sole principal in May 2011. GLS and PLP had struck up a friendship when she worked as a conveyancer. GLS alleged 14 incidents of sexual harassment throughout the period of her employment. These behaviours included that PLP repeatedly propositioned her for sex, made persistent sexual comments and advances, engaged in unwelcome massage and touching, showed her a pornographic video of himself having sex with a prostitute, looked at her breasts, attempted to sexually touch her, and sent her a photo of himself naked. In July 2011, GLS alleged that PLP assaulted her in a car park and dismissed her from employment with the firm shortly afterwards. During the term of her employment, PLP had installed video and audio equipment which recorded GLS. After GLS lodged a sexual harassment application in the Victorian Civil and Administrative Appeals Tribunal, PLP objected to her admission as a lawyer claiming that she was not a fit and proper person.

The Tribunal considered that GLS’s placement constituted an employment relationship and despite argument that the audio and video recordings showed GLS consenting to PLP’s conduct, Justice Garde found most of the incidents had occurred and constituted sexual harassment. His Honour also rejected a contention that GLS should have more strenuously rejected PLP’s advances.

Again, there was a recognition of the significant power imbalance between the parties where GLS relied on PLP to complete her placement for the purposes of legal admission. GLS established significant psychological harm. Based on this evidence, Justice Garde ordered PLP pay $100,000 in damages to GLS. There were disciplinary orders28 also made against PLP where he was found guilty of professional misconduct in a separate matter.

5.4. Legal Services Commissioner v Nguyen29

On 12 May 2010, Mr Nguyen, a barrister, was briefed by TDT Lawyers to appear in the District Court in Brisbane. Ms Ly, a legal secretary at TDT Lawyers, accompanied Mr Nguyen to court to instruct him in sentencing proceedings. While they were in the court precinct, Mr Nguyen sexually harassed Ms Ly. In respect of this conduct, Mr Nguyen was charged with two counts of sexual assault. Mr Nguyen pleaded guilty to the charges and the Magistrate imposed a sentence of three months’ imprisonment, wholly suspended, and recorded a conviction. On appeal in the District Court, Mr Nguyen was fined $2,000 and no conviction was recorded.

The Legal Services Commissioner brought disciplinary proceedings against Mr Nguyen charging him with having engaged in a serious offence that violates or falls short, to a substantial degree, of the standard expected of legal practitioners,30 and sexually harassing Ms Lee in contravention of r 127 of the 2007 Barristers Rules.31

The Commissioner emphasised that the charges related to repeated behaviour and the disparity in age and power as between the barrister and legal secretary.

The Tribunal concluded that Mr Nguyen’s conduct amounted to unsatisfactory professional conduct. No conditions were placed on Mr Nguyen’s practicing certificate, but a fine of $20,000 and a public reprimand was ordered. The Tribunal noted: ‘Counsel for the applicant observed that the Bar cannot be the last bastion where sexual harassment and assault is countenanced in the workplace. Whilst it is not suggested that this is the case, such conduct must be strongly deterred.’

6. Employer responsibility

Employers play a key role in creating a workplace culture where sexual harassment is not tolerated by taking a proactive preventative approach to sexual harassment. This approach overcomes the burden of sexual harassment falling predominantly on the victims and is a leading recommendation in the March 2020 Australian Human Rights Commission report “Respect@Work”.  As a result of this report, s47C of the SD Act referred to in clause 4.2 above was introduced in December 2022 which imposes a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. The duty will extend to conduct by third parties such as clients.

Employers can be vicariously liable for sexual harassment occurring in the course of employment of an employee unless they can demonstrate that they took reasonable steps to prevent sexual harassment.32 Vicarious liability can attach even where the conduct occurred after work hours. The SD Act makes it unlawful for a person to cause, instruct, aid, or permit another person to do an act that is unlawful under certain Divisions of Part II of the SD Act.

To minimise the risk of being vicariously liable for sexual harassment engaged in by their employees, firms should adopt the steps recommended in sections 7 and 8 below. At the very least, legal practices should ensure that they provide adequate and frequent training to staff on sexual harassment and that there is a robust complaints process under which staff feel safe to make complaints and that their complaints will be treated seriously and dealt with appropriately.


7. Duties of Bystander

A benefit of adopting active bystander policies is an understanding that sexual harassment is part of a broader obligation on us all to ensure a healthy and safe work environment.33 Bystander intervention is a prevention strategy that sends a powerful message as to what is acceptable and expected behaviour. One type of such intervention is the 5 Ds of Bystander Intervention34:

  • Distract – distract one or more of the people involved with the goal of interrupting the behaviour but not necessarily confronting it in the moment. Talk about something completely unrelated to change the focus of the discussion. Engage with the target and not the harasser.
  • Delegate – look for people to back you up when it is time to intervene. This also helps create a shared sense of responsibility among community members or a group. Ask for assistance / help from a third party or report to someone who may be able to take action due to seniority or their position within the organisation / workplace.
  • Direct – directly confront a situation where someone is being harmed or is at risk of being harmed by speaking to the harasser – address the behaviour not the person. Maintain objectivity and keep the discussion on point. One way of doing so is asking if everything is all right or state that you are uncomfortable with the situation / comments. Do not engage if this would place anyone at physical risk.
  • Delay – if more information needs to be gathered or the opportunity to intervene passes, then follow up and ask if that person is ok after the event and is there any way you can provide support.
  • Document – record details of the incident ASAP – name of parties, time and location of the event, witnesses, what was said / done – keep it factual and avoid interpreting the event. Memories can fade quickly and this is an important tool if you are called upon at a later stage as a bystander.

8. Practical steps in dealing with such behaviour

To mimimise the likelihood of sexual harassment in the workplace and ensure that inappropriate behaviour is reported and dealt with appropriately, employers should take the following steps:

  1. Put in place a clear policy regarding sexual harassment (which provides examples of what is and isn’t sexual harassment, makes it clear that such conduct will not be tolerated in the workplace and provides a mechanism for employees, partners and bystanders to report or complain about sexual harassment).
  2. Ensure that all employees and partners are provided with a copy of the policy and the contents of the policy are explained to them. Employees and partners should sign an acknowledgment or there should be a system in place to evidence that they have read and understood the policy.
  3. Include training in the policy during the induction process when employees and partners commence with the firm / workplace.
  4. Conduct refresher training for all employees and partners at least yearly or on a regular basis. The Queensland Human Rights Commission offers training as do private providers.
  5. Consider providing additional training to leaders or principals, ensuring they understand how to respond to observed sexual harassment behaviours and/or a complaint.
  6. Consider undertaking a culture survey to assist in establishing current views about the prevalence of sexual harassment in the workplace.
  7. Take all complaints seriously and ensure that they are addressed in a prompt manner in accordance with the firm’s complaints handling policy. If you are a smaller firm, this may involve seeking advice about the appropriate way to handle particular situations.
    Consideration may need to be given to whether a police report should be made or a report to other authorities such as WorkSafe Queensland.
  8. Adopt an active management approach in the workplace with firm leaders or principal(s) modelling appropriate behaviours.
  9. Pro-actively address inappropriate conduct in the workplace when it occurs and before it escalates into more serious conduct.
  10. Appreciate the power imbalance inherent in the relations between leaders of the firm, managers and professionals and support staff irrespective of the size of the firm.
  11. Encourage a team atmosphere in which employees and partners feel able to raise concerns without necessarily making a formal complaint (whilst remembering that objective consideration needs to be given to the appropriate steps to be taken by the employer) or for smaller firms, consider choosing a senior staff member who has the skills and objectivity to assist with such concerns.
  12. Set and implement rules for conduct (including the consumption of alcohol) at workplace functions.
  13. Consider making counselling arrangements available to employees and partners (such as an Employee Assistance Program) or if you are a QLS member, you and your staff will be able to access LawCare and should make them aware of that service.

9. More information

For further assistance please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au

Updated 20 December 2022

1 See below regarding relevant ASCR rules. See David Bowles, ‘Bullying and Sexual Harassment are Ethical Issues. Was there any doubt?’, QLS Ethics and Practice Centre (online, 23 March 2018) <https://www.qls.com.au/Practising-law-in-Qld/Ethics-Centre/Rules-Resources/Bullying-and-Sexual-Harassment-are-ethical-issues->.

2 In 2019, the International Bar Association’s final report on its global survey reported that, of the Australian respondents, 47% of female lawyers and 13% of male lawyers had experienced sexual harassment: Kieran Pender, International Bar Association, Us Too? Bullying and Sexual Harassment in the Legal Profession (Report, May 2019) 87. In 2018, the Women Lawyers Association NSW survey found that 71% of practitioners responding to the survey reported having experienced sexual harassment, however only 18% made a complaint to their employer: Women Lawyers Association NSW, Submission to Australian Human Rights Commission, National Inquiry into Sexual Harassment in the Australian Workplace (28 February 2019) 9. The Law Council of Australia’s National Attrition and Re-engagement Study (NARS) Report (Final Report, 2013) found one in four women reported experiencing sexual harassment. A Victorian Equal Opportunity and Human Rights Commission report in 2012 found that one quarter of respondents had experienced sexual harassment and a further 12% reported that they were aware of instances of sexual harassment happening to other female lawyers in their workplace in the last 12 months: Victorian Equal Opportunity and Human Rights Commission, Changing the rules: the experiences of female lawyers in Victoria (Report, 2012).

3 Law Council of Australia, Addressing Sexual Harassment in the Australian Legal Profession (Discussion Paper, July 2019) (‘Addressing Sexual Harassment in the Australian Legal Profession’).

4 Law Council of Australia, National Attrition and Re-engagement Study (NARS) Report (Final Report, 2013).

5 Law Council of Australia, Addressing Sexual Harassment in the Australian Legal Profession (n 3) 5.

6 Sex Discrimination Act 1984 (Cth) s 28A(1) (‘SD Act’).

7 Ibid s 28A(1A).

8 Australian Human Rights Commission, ‘Sexual Harassment (A Code in Practice) – What is sexual harassment?’ (online, 24 March 2004) 1.2.4 <https://humanrights.gov.au/our-work/sexual-harassment-code-practice-what-sexual-harassment#1_2_4>> (‘Sexual Harassment (A Code in Practice)’).

9 (1988) EOC 92-244, 77, 280.

10 Horne v Press Clough Joint Venture (1994) EOC 92-591, 77, 175.

11 SD Act (n 6) s 28B.

12 Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503, 572; Australian Human Rights Commission, ‘Sexual Harassment (A Code in Practice)’ (n 8) 1.2.4.

13 SD Act (n 6) s 106(1)(b).

14 Ibid s 106(2).

15 See also Anti-Discrimination Act 1991 (Qld) s 117 (‘AD Act’).

16 AD Act (n 15) ss 119(e)-(f).

17 [2014] FCAFC 82.

18 Criminal Code Act 1899 (Qld) s 352 (‘Qld Criminal Code’).

19 R v Court [1987] 1 All ER 120.

20 Qld Criminal Code (n 18) s 359B.

21 Criminal Code Act 1995 (Cth) s 474.17.

22 Dame Margaret Bazley, Independent Review of Russell McVeagh (March-June 2018) 3-4.

23 The Queensland Human Rights Commission provides more information and de-identified cases for Queensland’s anti-discrimination jurisdiction: Queensland Human Rights Commission, ‘Sexual harassment case studies’ (Web Page) <https://www.qhrc.qld.gov.au/resources/case-studies/sexual-harassment-case-studies#Sexual%20harassment%20court%20and%20tribunal>. See section 9 below for more links.

24 [2019] FCCA 1267; Hughes v Hill [2020] FCAFC 126.

25 Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21.

26 Ibid [59].

27 [2013] VCAT 221.

28 Legal Services Commissioner v PLP (Legal Practice) [2014] VCAT 793; PLP v McGarvie and VCAT [2014] VSCA 253.

29 [2015] QCAT 211.

30 Legal Profession Act 2007 (Qld) s 420. 31 There is no comparable rule to ASCR rule 42 contained within the current 2011 Barristers’ Rule, as amended. However, the Bar Association website states that: ‘Sexual harassment can constitute a breach of rule 12 of the 2011 Barristers’ Rule, as amended (that is, a barrister must not engage in conduct which is discreditable to a barrister or likely to diminish public confidence in the legal profession or otherwise bring the legal profession into disrepute)’.

31 There is no comparable rule to ASCR rule 42 contained within the current 2011 Barristers’ Rule, as amended. However, the Bar Association website states that: ‘Sexual harassment can constitute a breach of rule 12 of the 2011 Barristers’ Rule, as amended (that is, a barrister must not engage in conduct which is discreditable to a barrister or likely to diminish public confidence in the legal profession or otherwise bring the legal profession into disrepute)’.

32 Green v State of Queensland, Brooker and Keeting [2017] QCAT 008.

33 Therese Macdermott, ‘The Duty to Provide a Harassment-Free Work Environment’ (1995) 37(4) Journal of Industrial Relations 495-523, cited in Australian Human Rights Commission, ‘Part 5: Legal and organisational implications of bystander approaches for sexual harassment’ (online) <https://humanrights.gov.au/our-work/part-5-legal-and-organisational-implications-bystander-approaches-sexual-harassment#fnB246>.

34 ‘Your toolkit: Bullying, sexual harassment and discrimination, Episode 3: Being a bystander – what can I do?’ On-demand resource (Queensland Law Society, July 2020).