Sexual harassment still endemic in the legal profession

July 1, 2020
Dyson Heydon

The report of an inquiry, commissioned by the High Court of Australia, has revealed that women are not safe from predatory sexual harassment, even in the highest court in the land.

The report found that former High Court Justice Dyson Heydon sexually harassed six young female associates who worked for him while he was a judge of the High Court between 2003 and 2013. The women claim that Heydon’s status as one of the most powerful men in the country protected him from being held to account for his actions.

In releasing the findings Chief Justice Susan Kiefel said: “We’re ashamed that this could have happened at the High Court of Australia.

“We have moved to do all we can to make sure the experiences of these women will not be repeated. We have made sure there is both support and confidential avenues for complaint if anything like this were to happen again.”

However, the onus is still on the person being harassed to take action. There is no requirement for the employer to initiate sanctions or to provide education and training directed at behavioural change of potential perpetrators.

The investigation was prompted by two of the judge’s former associates notifying the court in March 2019 that they had been sexually harassed by Heydon, while also raising concerns about inadequate procedures within the High Court for addressing judicial misconduct.

Principal lawyer with Maurice Blackburn Lawyers Josh Bornstein, who represented some of the women, said: “The report makes clear that Dyson Heydon sexually harassed each of the women who made a complaint, and that the allegations of six women at different times demonstrated a pattern of predatory and harassing behaviour.”

Heydon spent a decade on the High Court until his mandatory retirement at age 70 in 2013. He came to national political attention when then-Prime Minister Tony Abbott appointed him to run the Royal Commission into Trade Union Governance and Corruption. It is telling that action was only taken years after Dyson Heydon retired.

Judges in Australia generally employ recent legal graduates as associates to work with them for a year. An associate effectively shadows a judge for a year as a quasi-personal assistant. Associateships are coveted by the brightest law students, particularly those who wish to become barristers.

But, as the report noted, for at least two of Heydon’s associates, his tendency “to engage in a pattern of conduct of sexual harassment” which included unwelcome touching, attempting to kiss the women and taking them into his bedroom, proved too much and they abandoned their legal careers.

Law Council of Australia president Pauline Wright said: “The attrition rate of women lawyers is high, and experiences of sexual harassment are a key reason why women leave the law.”

Bornstein said in a statement when the harassment occurred Heydon was “in his 60s, a conservative judge, a prominent Christian and a married man. The women he employed were in their early 20s and often straight out of university.

“He was one of the most powerful men in the country, who could make or break their future careers in the law. There was an extreme power imbalance between Heydon and the young women he preyed on. The fear of his power and influence meant that the women did not feel able to come forward until recently.”

The release of the report has led to a string of “me too” declarations from senior women in the legal profession. A report by the Sydney Morning Herald revealed that Heydon’s predatory behaviour had been an “open secret” in legal and judicial circles.

It quotes a current judge, who said Heydon “indecently assaulted me. I have no doubt it was a crime and he knew I was not consenting.” But Heydon was too powerful to complain about. Making a complaint could have killed her career.

The fact that Heydon could behave as he did for decades and not be subject to sanctions of any kind until after his retirement demonstrates that sexual harassment is a systemic issue and not one of individual transgression.

Since the 1970s the women’s movement was successful in raising sexual harassment as a workplace occupational health and safety issue: it bore fruit in the enactment of sexual discrimination laws at state and federal level.

However, misogyny and sexism have not been eliminated and sexual harassment in the legal profession has been the subject of recent inquiries by the Australian Human Rights Commission, Victorian Legal Services Board and Commissioner and the Law Society of NSW.

As president of the Law Society of NSW Richard Harvey said: “One of the fundamental rights for anyone working in the legal profession, or any workplace for that matter, is that they can work in an environment in which they are free from sexual harassment, bullying, discrimination, vilification or victimisation.”

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