Reflecting on a career spanning three decades, retiring NSW Legal Services Commissioner John McKenzie believes the profession is well-placed to tackle ongoing social challenges and create a more equitable future.
McKenzie will retire on March 31, after eight years in the role. Prior to his time as Commissioner, McKenzie was a solicitor for more than 35 years and achieved specialist accreditation in criminal law. He worked as Chief Legal Officer for the NSW/ACT Aboriginal Legal Service, on the Royal Commission into Aboriginal Deaths in Custody from 1987 to 1991, as well as roles with Legal Aid, community legal centres and in private practice.
Recruitment is currently underway for his replacement, who he believes will come into the role at a critical juncture; including responding to new laws and workplace requirements for responding to sexual harassment and bullying.
It has been a busy final year on the job for McKenzie. In mid-2022, the Office of the Legal Services Commissioner [OLSC] unveiled a new platform that provides a safe space for victims and witnesses to report incidents. The platform was introduced with the support of the Law Society of NSW and the NSW Bar Association.
The OLSC has a dedicated team to support reporting and has implemented secure technology provided by an independent provider. The platform facilitates the reporting of an incident someone has either witnessed or experienced. Their report is sent securely to the OLSC team.
In an interview with LSJ, McKenzie said “one of the things that confronted me a few years ago when I first started getting onto this issue was the fact that all of the published research shows that sexual harassment and bullying is prolific within the legal profession.”
“But no-one really knows exactly how much has been going on and is still going on,” he said.
“Legal regulators like me, and my colleagues around Australia who I checked with, we receive an absolute miniscule number of formal complaints and part of it is, I’m sure because the less powerful people, usually the younger people and younger women in in particular, feel they will be seriously jeopardising their whole legal career if they speak up, go on the record and make a formal complaint.
“That’s part of what we have to deal with. That’s why it was so good to get the Law Society of NSW and the NSW Bar Association on board to join up with me to put up this online portal, which allows people to make, if they choose, anonymous reports.
“We want to get some real, much better data on how much is happening, where it’s happening; is it happening in the big firms, small firms, the regions, the suburbs, or the city? There’s a whole lot of stuff that we need to really find out better … so that we can better target our efforts to prevent it from happening, as well as send the message that we’re not tolerating it anymore.”
He believes the passing of the new ‘Respect at Work’ legislation, brought about by the Australian Human Rights Commission’s two-year inquiry into sexual harassment in workplaces, in November 2022 is “a huge step forward.”
“I’m a great believer in making it the responsibility of the employer to take preventative steps,” he said.
Amidst the turbulence of the decade so far, with COVID-19 and natural disasters across the country, McKenzie believes the legal profession has been at its best while helping clients and the broader community navigate such challenges.
Lawyers were at the fore of a different kind of pandemic response; assisting those who bore the brunt of strict and frequently-changing lockdown rules and helping those who experienced sudden financial and personal difficulties.
“I think it’s truly heroic what some of the members of the legal profession have done,” McKenzie said.
“In particular, regional firms have done an unbelievably good job during COVID times and adapting to new ways of doing things, but more particularly during the natural climate disasters that we’ve been going through, the fires and the floods.”
Despite that goodwill, declining trust in institutions has been a problem of global concern. In 2022, the Law Society commissioned a survey of more than a thousand NSW citizens to gauge their opinions on the trustworthiness of lawyers and how respondents decide to seek legal advice and from whom.
The results showed around 60 percent of respondents trusted lawyers, judges and the legal system as an institution but that there was further work to do. The importance of building trust, both with clients and within the legal profession, was a focus of the Law Society’s inaugural conference last September.
McKenzie has monitored community perceptions of lawyers for some time. He said individuals who’ve needed the services of a solicitors tend to have a more positive perception, which is good news for the profession.
“I’ve been very closely watching the annual reporting from the Governance Institute of Australia and their ethics survey of the Australian population. It was really of great concern during the years of the [Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry] and the couple of years after, that the estimation of the ethical behaviour of lawyers took a huge nosedive,” he said.
“And it was because there were an uncomfortable number of lawyers in very senior positions shown to be doing really shady, selfish things. And those things weren’t illegal or a situation where a regulator like me could [step in], but it really did a lot of damage to the overall estimation.
“But when you drill down those statistics; when people are asked, ‘how would you rate the ethical behaviour of a lawyer you’ve actually had contact with in the past year or that members of your family have?’, those estimations are far higher.”
McKenzie believes the future of the profession is in safe hands; that the current generation of students and young lawyers is well equipped to harness the power of technology. They understand its positives and pitfalls, and its impact on the future of delivering legal services.
However, he notes “it’s getting nigh on impossible for anyone to be across all areas of law and I do perceive that to be a problem.”
He hopes early-career lawyers feel comfortable in knowing their areas of specialisation as well as the cases they cannot take on.
“I’ve seen some younger members of the profession make the mistake of thinking after [they’ve] done the two years of supervision, they can go out and hang their shingle, and that’s fine and of course they can, but don’t pretend that you can be all things to all people,” he said.
“That’s how you get into real trouble through not really being on top of what are sometimes incredibly specialised areas of knowledge. I just think there needs to be some real caution.
“One of the things I really want to encourage people to do … is to sit down and draw up a ledger of the areas of law they will take matters in and the areas of law they won’t. I think it’s really important that they be able to say ‘no’ to the areas where they have no confidence.”
As he calls time on a varied and esteemed career in the law, McKenzie believes the challenges of the decade thus far have been met head-on by a committed and compassionate profession.
“I always have been a great supporter of the legal profession. I think it does a fabulous job and I think the great majority of members of it do a wonderful job. But we have got to keep improving.”