42. Anti-discrimination and harassment

1. A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes:
   1. discrimination;
   2. sexual harassment;
   3. any other form of harassment; or
   4. workplace bullying.

Commentary

42.1.1 Discrimination

Rule 42 makes an alleged breach of federal or State anti-discrimination law the possible subject of a complaint to the Legal Services Commissioner. The definition of 'discrimination' in the ASCR glossary indicates that it is discrimination that is unlawful under federal or state legislation that amounts to a breach of this Rule.

Federal laws. Australia has enacted a number of laws, administered by the Australian Human Rights Commission, which meet obligations under international treaties:

• Age Discrimination Act 2004 (Cth)
• Australian Human Rights Commission Act 1986 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)

State laws. The Anti-Discrimination Act 1991 (Qld) and the Equal Opportunity Act 1984 (SA) are each much broader in scope than the federal legislation. The Queensland Act prohibits discrimination, sexual harassment, vilification and victimisation on the basis of sex, relationship status, pregnancy, parental status, breastfeeding (goods and services only), race, age, physical impairment, religion, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, or association with a person who has any of these attributes. 

The South Australian Act similarly prohibits discrimination on the basis of sex, sexuality, marital status, pregnancy, race, age, physical and intellectual impairment, mental illness, association with a child, chosen gender, caring responsibilities, religious dress (in work or study), and spouse or partner's identity. 

42.1.2 Sexual harassment

Sexual harassment of any individual in the course of legal practice may constitute professional misconduct or unsatisfactory professional conduct, as well as breach federal and State laws. The mental health of the practitioner is not a defence to the conduct charge: see also Rule 5. The Council of the Law Society of New South Wales v Flynn [2013] NSWADT 70 involved sixteen separate allegations of professional misconduct or unsatisfactory professional misconduct, including ones of the solicitor harassing a female client with more than thirty phone calls or text messages over a period of six hours, and inviting the client to dinner wearing 'something sexy.' The lawyer conceded that the conduct was 'completely inappropriate and unacceptable', admitted his embarrassment and cited mental health problems affecting him at the time. The Tribunal found the conduct amounted to professional misconduct. 

42.1.3 Workplace bullying

The Glossary defines 'workplace bullying' as:⁹¹

bullying that is unlawful under the applicable state or territory anti-discrimination or human rights legislation. If no such legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms it includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.

91 Refer to Fair Work Act 2009 (Cth).