‘It’s not just the women who are ready for change’: Kate Jenkins

In her former life as an employment lawyer, Kate Jenkins would brace herself for office Christmas parties and the inevitable spike in sexual harassment cases. Two decades later, when Jenkins was appointed Australia’s Sex Discrimination Commissioner in 2016, little had changed. “Christmas parties were still the same,” she says. “It felt like while people knew the rules, sexual harassment was dismissed, trivialised and justified.”

But then came the global rallying cry against sexual assault and harassment sparked by the Harvey Weinstein scandal and the #MeToo movement. Jenkins seized her moment in 2018. “That was the point when I went to [former Women’s Minister] Kelly O’Dwyer and said, ‘Could we do a national inquiry?’ because I’d been doing sexual harassment cases for 20 years.”

Kate Jenkins at Tonka, a favourite of her and her husband’s.Credit: Eddie Jim

The inquiry underscored Jenkins’ core belief that sexual harassment isn’t about a few bad blokes, it’s a systemic issue underpinned by gender inequality. The report that came out of the inquiry, Respect@Work, led to changes to industrial relations laws this year that make sexual harassment “serious misconduct” and clarify it is a sackable offence.

Jenkins remains hopeful that one of her key recommendations – an onus on employers to prevent sexual harassment in the workplace rather than rely on complaints from victims – will ultimately also be adopted. “I’m quite pragmatic. You get done what you can get done but you don’t give up because the other things’ time might come.” The Respect@Work report also helped inform Jenkins’ latest inquiry into workplace culture at Parliament House, sparked by former Liberal staffer Brittany Higgins’ allegation she was raped by a colleague in a minister’s office in 2019.

Spanner crab, betel leaf, green chilli chutney and roasted pineapple at Tonka.Credit: Eddie Jim

Jenkins, whose report was tabled in Parliament on Tuesday, is busy working on it when we meet her for lunch at Tonka, a modern Indian restaurant hidden down a gritty, graffitied Melbourne lane. She has requested this restaurant, a favourite of her and her husband’s. Jenkins recognises the name of guest chef Kishwar Chowdhury on the menu – she was a finalist on MasterChef, the last two seasons of which Jenkins has watched with her children. “We were in lockdown and all hanging out.”

She insists we order pani puri – a crispy parcel filled with spiced potato, mung beans, date and tamarind chutney – which you fill with aromatic water and then quickly eat before they collapse. The pani puri are topped with delicate flowers and are so beautiful it feels almost sacrilegious to eat them. The rest of our menu is selected by the restaurant, although I am adamant we try Kishwar’s turmeric curd with ginger burnt butter ice-cream.

In 2019, former prime minister Malcolm Turnbull said that attitudes to women in Australian politics were more like those in the corporate world in the 1980s. Jenkins says that Parliament, which thousands of children visit every year on school excursions, should be a role model workplace. But the pressure, the fly-in fly-out nature of parliamentary sitting weeks and the long hours make it a workplace she says most people can’t even imagine.

The inquiry interviewed hundreds of people, including current and former politicians, staffers and press gallery journalists, and held focus groups that included cleaners and COMCAR drivers, who transport parliamentarians. No-one who participated is identified.

“Our review will paint a picture of what it is like to work in Parliament House and make recommendations to ensure it’s a role model workplace,” Jenkins says.

“Our task was to write about politics without being political. I think we’ve achieved that.”

In some ways, Jenkins, 53, was an accidental lawyer. She was a good maths and science student at a time when very few girls became engineers. Medicine was also out. “I remember doing an excursion and not feeling that good when I saw some blood, so that left me down to law.” She had attended a single-sex girls secondary school. “It wasn’t until university that I was in these situations where I could see that the boys felt they had more rights to speak up and the girls were quiet. It had never occurred to me there would be a gender divide in that sort of experience.”

Jenkins did a double bachelor of arts and law degree, studying the subjects considered important at the time for the top-tier law firms (corporate law and tax law), and was offered a job at Herbert Smith Freehills three years into her five-year degree. Then she enrolled in discrimination law and feminist legal theory, a new subject offered at the University of Melbourne taught by Professor Jenny Morgan. “I did it because I was interested in them rather than I thought I would be able to practice,” she says.

This interest would prove prescient. In 1984, Susan Ryan, with whom Jenkins would later work at the Human Rights Commission, drove Australia’s first sex discrimination laws through Federal Parliament. At first sexual harassment cases tended to be focused on male-dominated blue-collar industries, Jenkins says, “nudie calendars in tyre factories”. But by the time she joined Herbert Smith Freehills in 1993, it was beginning to dawn on the finance sector that sexual harassment was also a white-collar issue.

A watershed moment was in 1996 when Bankers Trust Australia apologised and settled a dispute out of court with a female employee on the Sydney Futures Exchange, who had complained male superiors called her a “slut”, talked about “bending her over” and asked for “a head job”.

“The sexist and sexual treatment was appalling, it was disgusting and it was printed in the newspaper,” Jenkins says.

Kishwar’s Spencer Gulf kingfish with green apple and pickled muntries at Tonka.Credit: Eddie Jim

The Bankers Trust case, which received widespread media coverage, was a wake-up call for the finance industry. It realised the reputational damage could be huge and sexual harassment scandals could affect share prices. “I remember the time Bankers Trust got a reputation that no one would want to work in the graduate intake,” Jenkins says. “I did a lot of work for a number of the banks who said, ‘That could have been us’.”

Jenkins was only too familiar with the behaviour in banks and dealing rooms, and a culture that was often explained away as what happened when people were under pressure. “But actually most of the cases that I got were not when they were frantically busy but when they were bored and they’d have farting competitions and they often targeted the women with sexual and sexist comments.”

Jenkins became involved in training and policy development and driving cultural change in organisations where there had been sexual harassment cases. “My way of operating at Freehills was to say this has happened, what are you going to do to stop it happening again?”

Kate Jenkins as a young girl in the 1970s.

In recent years she has thought a lot about the role of non-disclosure agreements, which as a lawyer she had routinely asked people who had been sexually harassed to sign when negotiating settlements. She says corporates had the view at the time that they were paying money in exchange for confidentiality. “I was part of what we thought was how it should work,” she says. “Whereas I’ve said now it shouldn’t have been that.”

Jenkins now believes sexual harassment victims don’t owe anyone silence, they are being paid because workplaces didn’t do what they were supposed to do. The use of non-disclosure agreements was a particularly challenging issue for the Respect@Work inquiry. “A lot of those things that I talked about in my career that we thought were the right things, that report says actually, no, doing non-disclosure agreements hasn’t helped. It’s made it worse.”

The inquiry heard there were benefits in protecting the confidentiality and privacy of victims and helping to provide closure but concerns they could be used to protect the reputation of the business or harasser and contribute to a culture of silence. “I think there is a place for them in some situations but a blanket non-disclosure agreement where no one is allowed to say anything ever has a lot of downsides,” Jenkins says.

The Respect@Work report ultimately recommended the Human Rights Commission develop a guideline to inform the development of regulation on the use of non-disclosure agreements in workplace sexual harassment matters.

Jenkins is inspired by the legacy of Susan Ryan, the first woman from the ALP to serve in cabinet.

“She’s the perfect model of how at that previous watershed moment you can get things done and you can make change happen. She got that Sex Discrimination Act through despite people on all sides of politics saying it’s the end of the family and it’s going to be a disaster.”

Receipt for lunch at Tonka with Kate Jenkins.

Jenkins believes we are living through another watershed era with the #MeToo movement, which started in 2017. She points to a long list of snowballing events. The landmark 2017 survey of Australian university campuses, which found one in 10 female university students had been sexually assaulted in the past two years. The High Court inquiry finding former justice Dyson Heydon sexually harassed associates. The AMP sexual harassment scandal. The advocacy of sexual assault survivor Grace Tame. Former school girl Chanel Contos driving the conversation about sexual consent being taught in schools. The March for Justice rallies across Australia this year and, of course, Brittany Higgins speaking out about the culture in Parliament, which prompted an inquiry.

“I’m really optimistic that this will all lead to change,” she says. “I think it’s not just the women who are ready for change. I think it’s men. I think it’s families. I think it’s communities.”

In need of some good news? The Greater Good newsletter delivers stories to your inbox to brighten your outlook. Sign up here.