Dyson Heydon: Legal profession faces reckoning as sexual harassment is exposed
The Australian legal profession may finally be facing a reckoning after avoiding the issue of sexual harassment for too many years, writes Janet Fife-Yeomans
NSW
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It was never going to stop just with Dyson Heydon. The bravery of six young women who stepped forward to complain about being sexually harassed by their boss has been like ripping the top off a wound.
“The legal profession’s dirtiest secret” was how lawyer Josh Bornstein, acting for three of the former High Court judge’s six accusers, described the allegations which were upheld by an independent inquiry set up by the
court itself.
Call that dirt?
Women lawyers, who make up about half of the legal profession, say there is a lot more where that came from.
They are now hoping that the way the six High Court associates have been believed will be the catalyst for real change from the top down and make it easier for others to step forward. What swung it was the way the six women associates have been championed by no less than the country’s top lawyer, High Court Chief Justice Susan Kiefel, in what has been a remarkable show of leadership.
Who are they to judge?
Chief Justice Kiefel took the unusual step of issuing a public apology: “We’re ashamed that this could have happened at the High Court of Australia.”
Mr Heydon, 77, who sat in judgment on the country’s highest court from 2003 to 2013, has denied via his lawyers “emphatically any allegation of sexual harassment or any offence”.
His lawyers made no other statements as the scandal gathered pace through the week.
Sexual harassment in the legal profession, where egos vie with testosterone, has been no secret but Chief Justice Kiefel’s stand means the profession can no longer just issue motherhood statements about “not supporting sexual harassment” but then close ranks against accusers.
More than 70 per cent of female lawyers in NSW have reported being sexually harassed including three by judges, others by barristers and partners of law firms, with some of the harassment happening even in the courtroom, a survey by the Women Lawyers Association of NSW found last year.
The older and more secure of them tell how, in what is a robust profession, they brush off tired old lines such as, “my wife doesn’t understand me” and pathetic requests from male counterparts for kisses when they wouldn’t even consider kissing them under chloroform.
But it is so much tougher for talented young women starting out in the profession who are seeking mentors and working hard but who come up against the power imbalance involving older judges, barristers and solicitors.
“There is definitely a culture of sexual harassment in the legal profession and we know that through the numerous reports that have been done over the years,” Association president Larissa Andelman said.
Say what you see
Andelman has called for mandatory reporting, as in the UK, in which harassment has to be reported in the legal profession just as doctors and schools have to report child abuse.
Some female lawyers told the Women Lawyers Association survey that they were referred to as a secretary or even “angel” rather than a correct professional term.
One woman said: “A partner I was working with once criticised me because I wouldn’t go with them into a strip club after a work function.”
A graduate lawyer who started work in the profession in her 30s told the NSW Law Society’s in-house magazine two years ago that one of the married partners of the law firm she worked for came past her house under the guise of being on a bike ride. She invited him in for a glass of water and “he forced his genitals into her hand”.
The holder of three degrees, she said the continuing sexual harassment made her suicidal, “But the firm made it very clear, to put it in the words of a grad in the year above me, I was nothing more than a piece of shit on the bottom of their shoe”.
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Another said one night her boss danced into her office dressed in an animal onesie, making sexual motions and noises.
Yet only 18 per cent of the women who replied to the Womens Lawyers Association survey said they had reported the sexual harassment.
There have been few high-profile cases because law firms will sweep the dirt under the carpet and settle out of court on confidential terms.
Damages done
The head of a boutique NSW law firm was ordered to pay $170,000 in damages for a “relentless” campaign of sexual harassment against a former employee, including suggesting the woman’s job would be jeopardised if she did not agree to a relationship with him. He had bombarded her with emails and on a work trip she discovered him in her bedroom wearing only a singlet and boxer shorts.
The man has appealed the ruling in the Full Court of the Federal Court which has not yet handed down its decision.
There has certainly never been a case as high profile as that involving Dyson Heydon. Pauline Wright, president of the Law Council of Australia, said this was a “wake-up call”.
A group of female senior barristers in NSW took the unprecedented step of lodging a complaint about Heydon to the Office of the Legal Services Commissioner.
Not only has one of the titans of the profession been named and shamed, he could be disbarred and is the subject of a criminal investigation into his actions both inside and outside the court sought by the ACT Director of Public Prosecutions Shane Drumgold SC.
Three of his former associates have signalled through their lawyer that they will sue him.
The Human Rights Commission handed down a national report into sexual harassment in March this year calling on action from federal and state governments. Important as it was, it had none of the impact of the country’s chief justice putting her name to a report that found sexual harassment had happened in her own court.
“We’re ashamed that this could have happened at the High Court of Australia,” Chief Justice Kiefel said.
“We have moved to do all we can to make sure the experiences of these women will not be repeated.”
Harassment rife
Not every case involving sexual harassment makes it into the public eye. According to Sex Discrimination Commissioner Kate Jenkins, a national sexual harassment inquiry solicited anonymous complaints and found that inappropriate conduct was rife in the country’s legal industry.
Speaking to the National Press Club about the inquiry in 2018, she said a senior partner at one major law firm was alleged to have sexually harassed young female lawyers by forcing them to watch pornography.
Case file: Freehills, 2018
Peter Paradise, a senior partner at the Sydney office of global legal giant Freehills, was dismissed from the firm in 2018 after an internal investigation into his behaviour was sparked by complaints from three different women.
According to reports at the time, Paradise, who had been the regional head of practice for Asia Pacific projects, was suspended when an internal investigation found “sufficient evidence from multiple sources” that the lawyer had broken codes of conduct and workplace policies.
As a result, Paradise was served with a dismissal notice, and soon after quit the board of the Sydney FC sporting club.
Case file: Clayton Utz, 2011
Revelations of a culture of sexism and inappropriate comments and jokes at top-tier law firm Clayton Utz surfaced in 2011.
The reports came amid a suit by a young lawyer at the firm Bridgette Styles, who was seeking $200,000 in damages from it after what was described as a whispering campaign against her over a relationship with a colleague. While the firm denied the claims and the firm and Styles reached settlement, the judge in the case lifted a suppression order that revealed Styles’ allegations that Clayton Utz tolerated sexualised humour, which included the failure to ban a Facebook group titled ‘’Clayton Utz Workplace Relations (Sydney) Whorebags’’.
The judge in the case, Justice Lucy McCallum, wrote, “It is difficult to decide whether it is more surprising that the remarks were made at all (after over a century of feminism) or that a lawyer recorded them in an email (after over seven centuries of subpoenas).’’