Parliament lags judiciary in providing a harassment-free workplace

The contrast could not be more stark.

The outcome of a year-long investigation into allegations of sexual harassment against a judge of the Federal Circuit Court is yet another reminder that the struggle for gender equality has a long way to go. The investigation found that the judge had engaged in unwelcome sexualised conduct towards two women, one employed at the Federal Circuit Court in Sydney and the other a former law student.

It comes just days after the airing of allegations of sexual harassment against an unidentified cabinet minister in the Morrison government by former Liberal Party politician, Julia Banks. To date, no action has been announced to address these allegations.

The judiciary has a long way to go to achieve gender equity in the workplace.Credit: iStock

The revelations of repeated sexual harassment by Dyson Heydon during his tenure as a High Court judge had a profound effect on the legal profession. One of the most powerful lawyers in the country, a judge who administered the law in the highest court in the land, betrayed his oath by mistreating young associates. The legal profession has been forced to confront the reality that its deeply hierarchical structure and culture of patronage render courts and tribunals as high risk environments for bullying and sexual harassment. The courts are leading the charge for change with a range of measures to make their workplaces safer including further judicial education and new policies and processes.

In June 2020, I wrote to the Federal Circuit Court on behalf of my client to detail her complaint of sexual harassment by a judge. The response was swift and decisive. Chief Justice Alstergren determined that the complaint was serious and constituted a committee made up of three former judges to investigate it. The committee commenced its investigation promptly. Its final report, delivered in April, upheld many of the allegations made by both my client and another complainant finding that the judge had engaged in inappropriate sexualised conduct which could amount to sexual harassment.

In the interests of transparency, the Committee also recommended that the Court release a public statement about the investigation and its outcome. The Federal Circuit Court has also established a further investigation to determine whether there has been any other inappropriate conduct by the judge.

Former High Court justice Dyson Heydon denied the sexual harassment allegations.Credit: Anna Kucera

In complete contrast to the handling of the sexual harassment allegations against judges by both the High Court and now the Federal Circuit Court, the Morrison government is committed to doing nothing about Julia Banks’ allegations. The government continues to inhabit another dimension: an alternative reality that favours secrecy over transparency and obfuscation over accountability. The revelations by Julia Banks of her experience of sexual harassment merit a similarly decisive response from Prime Minister. He should constitute an independent investigation and if Julia Bank’s allegations are upheld, invite any other women with similar complaints to come forward. The outcome of the investigation should be made public.

In the wake of recent scandals about the mistreatment of women in Parliament House, the Prime Minister agreed that Parliament should be “setting the standard”, adding unequivocally that sexual assault is “not only immoral and despicable and even criminal, but … it denies Australians, especially women, not just their personal security but their economic security by not being safe at work.”

But with the emergence of another allegation of sexual misconduct against one of his colleagues, the Prime Minister has reverted to type: ducking for cover behind a spokesperson’s statement that “Any such behaviour is completely inappropriate” and referring journalists to a new protocol for investigating allegations of sexual harassment that does not apply retrospectively and will therefore not address Julia Banks’ allegations.

As more women come forward and share their experiences in the workplace, we are learning that perpetrators of sexual harassment often have multiple victims. The secrecy and shame that often shrouds sexual harassment means that women who have been harmed can be unaware that there are others working alongside them who share their predicament. That secrecy also allows the perpetrators to repeat their conduct with impunity.

Julia Banks MP revealed this week that a current cabinet minister groped her leg at a function in the Prime Minister’s office.Credit: Dominic Lorrimer

It was only towards the end of the committee’s deliberations that my client and I became aware there was another woman who had also made allegations against the Judge. This replicates the experience of the investigation into Dyson Heydon. Initially there were 2 women who made complaints against Heydon but that number grew to 6 as the investigation progressed.

Julia Banks is clearly worried that she was not the only woman in Canberra targeted in this way, observing that if the senior Minister ‘was prepared to do that to me - a 50-something corporate lawyer MP…what must he do to women he has real power over?’“. She has confirmed that the man in question remains in parliament.

Women working in Parliament have a right to safe workplaces in the same way as women employed elsewhere. That cannot be assured unless a proper investigation is conducted.

Without such an investigation, the community will be left with an overwhelmingly cynical assessment. The Morrison government demands accountability from others but shields its own from the same standards. The Morrison government appeals to the rule of law except if it’s politically inconvenient to do so.

We should be thankful that the judge’s resignation has eliminated the need for the federal parliament to consider whether to remove him from office under the Judicial Misbehaviour and Incapacity Act. Given the lamentable record of the Morrison government on the mistreatment of women, it is not in a position to be sitting in judgment on anyone accused of sexual harassment.

Josh Bornstein is an employment lawyer. He represents a number of women who allege sexual harassment by judges in several courts across Australia. Earlier this year he withdraw a bid to stand as a Labor senator for Victoria. Twitter @joshbbornstein