The Andrews government cannot identify any legislation it needed to override, but experts say that is the point.When Daniel Andrews signed a declaration for a state of disaster in Victoria at 1.43pm on Sunday, it was a part of a final salvo in a battle to control a resurgent and invisible enemy.
Sexual harassment in the legal profession
When news broke this week that an independent inquiry at the High Court of Australia found former justice Dyson Heydon had sexually harassed six associates during his decade on the bench, my non-law friends and colleagues were incredulous. To them, the allegations of a judge repeatedly breaking the law read as hypocritical. “How can these people be doing these things in the industry that is supposed to protect people from this?” Within legal circles though, friends and colleagues are exchanging theories about who will be exposed next. And we are all wondering whether anything will change this time.
I was a judge’s associate in 2015, at a much lower level of the courts, working for a kind and conscientious judge who cared about justice. Many others weren’t so lucky. There are examples of judges bullying young associates in my book Eggshell Skull, but there were so many more incidents, and stories of harassment from earlier years, that I couldn’t reveal without risking the identities and careers of the young women involved. We knew better than to jeopardise our professional futures by making complaints, and knew that if you left your associateship before the contract finished, your résumé was ruined.
The legal industry is built on strict and rigid hierarchies. The roles of judge and associate are perhaps one of the most extreme examples – a judge is an absolute gatekeeper and arbiter of a young graduate’s professional trajectory. “Make or break” is not an overstatement. An associate is both a personal and professional assistant; they can be asked to research and proofread judgements, or to collect their judge’s dry-cleaning or his car from the mechanic. The pair often travel together too. The “hours” of the job are set by the judge, and there is an implicit understanding that your nights and weekends are theirs should they ask. It can be difficult for friends and family to understand the sense of honour and duty an associate feels to their judge. This kind of working relationship presents privileges that the system simply hopes won’t be abused.
At the time of writing, at least 12 women have spoken out about Heydon, their allegations spanning more than a decade. At least three of the young women he allegedly targeted were sufficiently disturbed and disillusioned to leave careers they had only just begun. The reporters who broke the story after years of investigating, Kate McClymont and Jacqueline Maley, suggest there may be “more to come”.
In a statement issued through his lawyers, Heydon has categorically denied the claims made against him. “If any conduct of his has caused offence,” it reads, “that result was inadvertent and unintended.” He apologised for “any offence caused”.
In his defence, Heydon takes issue with the High Court’s chosen form of inquiry, that it “was conducted by a public servant and not by a lawyer, judge or a tribunal member … without having statutory powers of investigation and of administering affirmations or oaths”.
Given the evidence presented, it’s a galling response. This is a man whose colleagues and industry stand accused of enabling his behaviour. We are supposed to believe the inquiry is less reliable because it was not conducted by them? Vivienne Thom is Australia’s former inspector-general of intelligence and security, and her report shows the independent procedures, inquiries and findings that these administrative processes are designed to facilitate.
She found there was evidence that “demonstrated a tendency by Mr Heydon to engage in a pattern of conduct of sexual harassment”. Many in the profession have referred to Heydon’s misconduct towards junior colleagues as an “open secret”. The report noted that Michael McHugh, High Court judge from 1989 to 2005, and Murray Gleeson, chief justice of the High Court from 1998 to 2008, were both made aware of the claims against Heydon.
Writing in The Australian on Tuesday, legal affairs editor Chris Merritt echoed Heydon’s defence, saying the inquiry into Heydon’s misconduct “lacked procedural fairness” because the former judge should have been able to cross-examine or interview these women. He did not mention that Thom invited Heydon to give an interview or make a statement but the judge declined, or that she confirmed no adverse inference would be drawn from this.
On Wednesday, Merritt wrote a follow-up, quoting Terry O’Gorman, president of the Australian Council of Civil Liberties, who said he was “disturbed that a major public figure could be ‘found guilty’ in the public arena via a process where he has not been accorded the usual procedural fairness requirements”.
In seeking to transplant procedures from the criminal law over to a formal workplace inquiry, this argument conveniently ignores that if this were a criminal law trial, an actual sentence would follow Thom’s findings. In the ACT, a single count of indecent assault carries a penalty of up to seven years’ imprisonment. Already Heydon’s charge sheet could span multiple pages. On Wednesday, the ACT director of public prosecutions wrote to the police recommending they investigate the allegations against Heydon.
Dyson Heydon was outspoken and proud about adhering strictly to “black-letter” law. His commitment to maintaining the legal status quo was one of the reasons John Howard appointed him to the High Court. He personifies a certain outdated image of the profession. “He tends to begin his day at 3am, writing judgments, writing books, reviewing military history,” describes an article in The Age, published just after his appointment to the High Court in 2002. “He is not alone in the small hours. The 59-year-old works in the company of Napoleon (a marble bust), the Duke of Wellington (a statue), and a library full of history”.
But in the wake of these allegations, his asserted high-mindedness has taken on a certain irony. During his career, the judge spoke viciously about “judicial activism” undermining public confidence in the law. Yet it has been Australia’s recent reckoning with racist cops and a sexist judiciary that has called into question the validity of the entire system.
I am reminded of the Judicial Commission of Victoria recently finding that Magistrate Richard Pithouse had acted with bias when he said a survivor of rape merely had “buyer’s remorse”. Heydon’s alleged conduct is another reminder of the flaws in our judiciary – familiar to all survivors of harassment, assault and abuse, those who get asked “why didn’t you go to the police” or told that their stories aren’t real or believable “until proven in a court of law”.
The law is a notoriously conservative profession. Its reverence for tradition and deference to superiors is ingrained even in the way legislation and common-law precedents are taught and upheld. This begins in the private schools and elite universities, whose students are overrepresented in the prestigious early-career positions – including associateships – upon graduating. Several of Heydon’s former associates have spoken about trying to protect and warn each other about his behaviour, demonstrating how women and juniors have to mitigate the misconduct of seniors in order to survive.
I will be sceptical of any “real change” having occurred until we see a practising lawyer, or a currently sitting judge, held to account for sexual harassment. Most women in the law understandably fear consequences to their career if they speak out about their experiences, and still do, even after these findings against Heydon.
Part of the problem, in the courts at least, is that the bar is not a company, nor really an organisation in the normal professional sense. It is something more akin to a formalised group of freelancers – barristers are self-employed, and they are supposed to self-regulate. Clearly, they do not. A global survey by the International Bar Association last year estimated that 47 per cent of women lawyers in Australia had been sexually harassed. The president of the Law Council of Australia, Pauline Wright, told The Australian Financial Review, “We know sexual harassment is a leading reason why women step away from the legal profession.”
For the past three decades, women have been graduating from law schools in equal or higher numbers than their male peers, but their numbers thin quickly once they enter the workplace. Research shows the legal profession has higher rates of sexual harassment and bullying than the national average. This problem self-perpetuates and exacerbates. In my time as a judge’s associate, I saw plenty of women, and other good people, leave because of the overwhelming misogyny of the place. Those left behind are more likely to – or be willing to – turn a blind eye to the rot.
A brief respite in all this comes from the chief justice of the High Court, Susan Kiefel. Her Honour’s statement explained that she met the six women who made allegations against Heydon and apologised to them, listened to their suggestions for what needed to change and would act on the investigators’ recommendations. She said, “We’re ashamed that this could have happened at the High Court of Australia.” The court has written to 100 former associates, offering them the opportunity to discuss their experience during Heydon’s time on the bench.
Kiefel’s leadership stands as one way forward for hearing these complaints: act quickly and bring in an external expert to undertake the inquiries. There’s no reason to suggest a process like this couldn’t work across the various states’ bar associations – it’s just a question of whether the members would be happy for their annual fees to cover the cost of such a mechanism.
Some in the profession are recommending a federal judicial commission be set up to hear complaints and, on Tuesday, Chief Justice Tom Bathurst of the New South Wales Supreme Court emailed staff saying, “In light of recent events, the Supreme Court is aware of the need for a sexual harassment policy.” It would be a good start.
National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732
This article was first published in the print edition of The Saturday Paper on Jun 27, 2020 as "A law of diminishing returns".
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