Legal profession should seize the reform initiative

Dyson Heydon, former High Court judge and a brilliant legal mind, has been found by an independent inquiry to have engaged in a pattern of sexual harassment of young women. Some worked for him as associates — hand-picked from the ranks of the very best law graduates — after he joined the highest court at the age of 59. The complaints against him are disturbing, they have consistent features, come from multiple sources — several women have been willing to be identified publicly — and rely in some cases on documents and notes made at the time. One promising young lawyer says the experience made her abandon her ambition to become a barrister. Quite apart from the obvious distress of such events, making a complaint against an establishment lawyer can be a career killer. Through his lawyers, Mr Heydon has denied any breach of the law or predatory behaviour and has apologised for any “inadvertent” offence.

The relationship between an associate and a judge has few parallels. The judge in chambers is like a sovereign. A young lawyer anointed as an associate gains an entree to the inner workings of justice and not infrequently goes on to judicial office. Judge and associate spend many hours together working intensely. Today’s apprentice may grow to become a lifelong friend and colleague of the judge. But the gulf in age and influence can be so great that a judge stands almost in loco parentis to an associate, certainly a guardian.

The risk and vulnerability should be obvious. Unlike a major law firm, courts are collegial and have no human resources department. Barristers’ chambers can be a similar danger zone. There is a tradition of the hard-charging, hard-drinking barrister whom young women lawyers learn to avoid, preferably through a friendly warning rather than experience. The law is increasingly female in academia and government but the aggression and high stakes of the Bar still attract more men, and this remains the proving ground for many judicial appointments.

Susan Kiefel, the first female chief justice of Australia, would have been conscious of this history when she made her statement supporting the complainants against Mr Heydon. Her route to the Bar was atypical, a function of having left school at 15. She no doubt has not forgotten her impressions of the freemasonry of the law as a young legal secretary in Brisbane, although her career also shows the positive role of male mentors.

Mr Heydon’s lawyers have pointed out that the finding against their client comes not from open legal proceedings safeguarded by the rules of evidence, but from a confidential administrative inquiry run by a former public servant. However, this was an inquiry of the kind any major workplace might have ordered in similar circumstances, and it was run by Vivienne Thom, who has considerable administrative experience.

Yet the High Court is no ordinary employer. It sits at the apex of our legal system. And although it’s clear the chief justice’s statement is not a judicial ruling, it will look like that to some observers. This creates potential difficulties, especially if, as predicted, there are compensation claims and perhaps police investigations following the complaints against Mr Heydon. Even if a case never reaches the High Court, might proceedings at a lower level be conducted in the shadow of what appears to be a quasi-finding by Australia’s chief justice?

This is the background to the suggestion by Arthur Moses and other senior lawyers that a federal judicial commission should be set up to handle such complaints. The idea should not be dismissed out of hand — it is a good-faith response to a serious problem — but inquisitorial bodies of this kind bring their own vices and conflicts. Nor are they likely to achieve much if the legal profession fails to reform its own culture. It’s been said that Mr Dyson’s behaviour was an “open secret”. This should prompt some reflection. Lawyers prize their independence but another hallmark of a profession is serious self-regulation and robust standards of conduct. Members of the profession may be better placed than an inflexible institution to drive reform. And although the complaints put Chief Justice Kiefel in an awkward position, her statement of “extreme concern” about the findings against Mr Heydon is a reformist precedent at the highest institutional level of the law. It’s a necessary first step.