Ms Fiona McLeay, the Victorian Legal Services Commissioner, recently called upon members of the legal profession to call out sexual harassment. But can we expect Ms McLeay to do anything if the lawyer accused of sexual harassment is a member of Ms McLeay’s staff!
Recently the Victorian Legal Services Commissioner, Ms Fiona McLeay told the legal profession that she and her team are “dedicated to working with the profession to meet these challenges and drive the changes that are necessary to reduce the prevalence of sexual harassment in legal workplaces.” And she went even further, claiming,
“We will also – where necessary and appropriate – take regulatory action to address instances of sexual harassment by individuals, and failures by law practices to manage sexual harassment in their ranks. We will do this not just because sexual harassment can, and does, have a profoundly damaging effect on individuals, but because it is behaviour which is unethical, a breach of lawyers’ professional and other legal requirements, and undermines the reputation and capacity of the legal profession as a whole.”
Unfortunately, Ms McLeay cannot deal with sexual harassment in her own office, if we accept her interpretation of Section 263(4)(c) of the Legal Profession Uniform Law Application Act 2014 (Uniform Law).
“Dear Ms McLeay,
I believe that there may be an inconsistency or what is known as a double-standard being applied in your expectations and treatment of legal practitioners, as compared with your expectations and treatment of lawyers under your direct supervision and control.
In your recent editorial in The Age newspaper you stated as follows:
“As the legal regulator, we will be doing everything in our power to investigate and respond to complaints about sexual harassment, and I encourage anyone who has experienced this behaviour by a Victorian lawyer to get in contact with my office. I have the power to investigate individual lawyers, as well as legal workplaces.”
You employ a number of Victorian lawyers and, presumably, if one of these lawyers were to engage in some form of sexual harassment you would expect such conduct to be reported to you.
It would probably be the expectation of a person reporting sexual harassment by one of your lawyers that you would conduct an investigation (with the benefit of the special powers you have under the Uniform Law) and take some form of disciplinary action if the conduct falls short of what is expected of a ‘fit and proper person’. It would also be assumed that where a preliminary examination of the conduct disclosed a possible criminal offence, then you would refer the matter to Victoria Police for a formal criminal investigation.
My query relates to the supposed prohibition (s.263(4)(c) of the Legal Profession Uniform Law Application Act 2014) on your investigating your own lawyers, a prohibition that apparently also extends to your reporting your lawyers to Victoria Police or IBAC. You will recall that this provision has prevented your commencing any investigation into allegations of serious professional misconduct and criminal conduct against your former Senior Investigator and Lawyer, Mr Luke Priday.
My question is:
Would Mr Priday have been treated any differently if the allegations made against him had included a sexual element?
(It is my understanding that Senior Investigator Priday was removed from at least two investigations as a consequence of complaints made against him, and that he has since left your office but is still regarded by you as a ‘fit and proper person’. I believe that Mr Priday may have been ‘assisted’ out of your office and into a position as a lawyer with Victoria Police.)
My query is part of an open investigation into corruption in the office of the Victorian Legal Services Commissioner (see https://www.petermericka.com.au/).”
As yet, I have received no reply from Ms McLeay.