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Dyson Heydon and the misogyny of the law

Jun 30, 2020 • 15m 02s

As allegations mount against former High Court justice Dyson Heydon, Bri Lee has written about the way misogyny and harassment are embedded in the legal profession.

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Dyson Heydon and the misogyny of the law

254 • Jun 30, 2020

Dyson Heydon and the misogyny of the law

RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

As allegations mount against former High Court Justice Dyson Heydon, a moment of reckoning has arrived for the legal profession.

Today, writer Bri Lee on misogyny and sexual harassment in the law- and what can be done to reform the industry.

**

RUBY:

Bri, how did this story about Dyson Heydon break?

BRI:

So it all began two years ago when Kate McClymont, who's a award winning reporter at the Sydney Morning Herald, was working on MeToo pieces. She was working on a piece about Don Burke and she started getting tips about Dyson Heydon.

RUBY:

Bri Lee wrote about Dyson Heydon for The Saturday Paper.

BRI:

But as we know, one of the issues with power in this country and our extreme defamation laws is that these stories are very difficult to get published. So it wasn't until an internal investigation was done by the High Court that the story could actually be published last week.

RUBY:

And what did that High Court inquiry find?

BRI:

So the report said that there was evidence that Heydon had sexually harassed six associates during his 10 years on the High Court. There was evidence that, and I quote, “demonstrated a tendency by Mr Heydon to engage in a pattern of conduct of sexual harassment.” Which is pretty damning.

Archival tape -- reporter:

From High Court Judge to accused sexual predator. His target: six young female associates who had just joined the High Court...

BRI:

And as the week progressed, more people other than his former associates started coming forward with their own allegations.

Archival tape -- reporter:

There are more claims surfacing this morning relating to Dyson Heydon’s time...

Archival tape -- reporter:

Former ACT law society president Noor Bloomer has her own story about allegedly being groped by Dyson Heydon.

BRI:

Some people came out, including a top silk. A woman who is now a judge, but who at the time of the incident, she recounts was a barrister. The former president of the ACT Law Society. At least two students in Canberra and now several students at Oxford University as well.

Archival tape -- reporter:

Among Australian law students there he was known as Dirty Dyson or Handsy Heydon...

BRI:

The other really critical and relevant thing that the report apparently found was that there were two judges on the High Court who knew about these alleged incidents involving Dyson Heydon and one most importantly, was the then chief justice until 2008, Chief Justice Gleeson.

And the reporters who have broken this story, Kate McClymont and Jacqueline Maley, have suggested that there may be more to come.

RUBY:

Can you talk me through Dyson Heydon's response to the allegations?

BRI:

So he's made a statement through his lawyers in response to the report. And in that response, Hayden has emphatically denied the allegations.

Apparently, the alleged actions towards his associates were, quote, ‘unintended and, quote, inadvertent.’ His lawyers also had issue with the High Court's investigation. They said the inquiry was an internal administrative inquiry and was conducted by a public servant and not by a lawyer, judge or a tribunal member.

So what I read from that is that we have a man here whose colleagues and industry apparently enabled his behavior. And this inquiry is supposedly less reliable because it was not conducted by his colleagues and industry, which to me is not only a logical fallacy, but exasperating.

I think it's a very weak argument to suggest that somehow these processes have not been fair.

RUBY:

And so what has the fallout been so far?

BRI:

The ACT’s Director of Public Prosecutions has now written to the police recommending that they investigate.

If it does happen, obviously will kick off an entire separate process, which might actually potentially have real sentencing outcomes. The lawyer representing two or three of the associates, Josh Bornstein, said that they would be seeking compensation from both Heydon and the Commonwealth.

Archival tape -- Bornstein:

They were young women in their first job in their legal profession. To their horror they were sexually harassed by a judge of the High Court.

BRI:

And also Arthur Moses SC, who's a top Sydney silk, and the former president of the Law Council of Australia. And he's a lawyer who's representing some of the alleged victims, he's also recommended a Federal Judicial Commission be set up to hear complaints like these. And some others have joined him in making that recommendation.

RUBY:

Bri, you worked as a judge's associate yourself and you've written about the bullying that you've seen in the profession. How did you feel when you read this news?

BRI:

As well as obviously shocked and outraged and just so admiring of these associates who came forward, I have to be really honest and say that there was also this sort of it was tinged with relief or of some kind of feeling of ‘I told you so’.

You know, in these really conservative and strict industries, misogyny is just like a smell.

And you walk around and you're saying to everyone, can you smell that? And it it's plausibly deniable. If somebody doesn't want to acknowledge this cultural problem, they don't have to.

And I feel like what is happening now with these revelations about the allegations about Dyson Heydon is that we just have uncovered this sort of stinking, rotting head of a fish.

At least now women and and people who have complaints about harassment and bullying can point to an example and say nobody believed that until it came out and now we cannot look away.

RUBY:

We'll be back in a moment.

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RUBY:

Bri, We're talking about Dyson Heydon and the culture of the legal profession more broadly. Can you tell me more about what you witnessed when you worked as a judge's associate?

BRI:

Yes. So I was a judge's associate at a much lower level of the courts in Queensland in 2015. And the judge I worked for was a very kind and conscientious man who genuinely cared about justice. But I also saw many associates who weren't so lucky.

I mean, we're talking about an industry that is not only built on very strict and rigid hierarchies, but the roles of judge and associate are probably one of the most extreme examples of a power difference. A judge is an absolute gatekeeper and arbiter of a young graduate's professional trajectory.

There is a knowledge that if you make complaints against your judge, you will be committing sort of career suicide. And certainly when I was an associate, if anyone tried to leave their associateship before the end of their contract, it was as though that would be a black mark on their resumé forever.

RUBY:

Can you tell me a bit more about that power differential and how it plays out?

BRI:
Sure. So as an associate, you are both a personal and professional assistant to your judge.

So on the professional side of things, you know, you might be helping them with legal research. You might be proofreading their judgments, doing what needs doing in the courtroom. But you are also very much a kind of personal assistant. So this was not the case with me and my judge, but it was certainly not uncommon for associates to pick up a judge's dry cleaning or go and get their car when it was finished at the mechanics.

Depending on how much travel your judge does, you can be on the road with them for weeks at a time. And there is a very strong, implicit understanding that your evenings and weekends are theirs should they ask.

And it can be really difficult for family and friends to understand the kind of honor and duty that an associate feels towards a judge. It is a very unique and sort of subservient role.

And I think what the allegations against Heyden have revealed is that currently, clearly our system just sort of hopes that these people won't abuse that position of power and we don't actually have any infrastructure or internal reporting mechanisms that protect associates.

RUBY:

Ok, so taking a step back then --- more broadly, how significant is the issue of sexual harassment and misconduct in the industry?

BRI:

Mmm. So at the bar in particular, it's very bad. The bar is not really an organization like a sort of traditional company or law firm is. They are very much self-employed. They're supposed to self regulate. And clearly they don't.

Archival tape -- Ferguson:

The legal profession isn’t immune from these issues, indeed as the report demonstrates it has certain characteristics that can foster them

BRI:

A global survey by the International Bar Association last year estimated that 47 percent of women lawyers in Australia had been sexually harassed.

Archival tape -- Ferguson:

The report demonstrates in no uncertain terms that bullying and sexual harassment are rife in the legal profession.

BRI:

And Law Council President Pauline Wright told the Fin Review in response to these stories about Dyson Heydon. “We know sexual harassment is a leading reason why women step away from the legal profession.”

So they have been equal or more women graduating from law schools in Australia for the past three decades. And that number thins very quickly after just a few years in the workplace. And this problem sort of self perpetuates and exacerbates the issue.

But what I would say in terms of trying to get women into these higher roles and a sort of brief respite from the sheer disappointment of all of this news about Dyson Heydon is that the chief justice of the High Court, Susan Kiefel, her response to this, in my opinion, has been exemplary.

Her honours statement after the investigation's report came out explained that she met with the six women and apologized to them. She listened to their suggestions for what needed to change. And part of the report that came out was a number of recommendations. And she said she would be acting to take on board those recommendations immediately. And she said, and I quote, ‘We are ashamed that this could have happened at the High Court of Australia’.

And I would say also that her leadership reveals a potential way forward for hearing these complaints. She acted quickly. She brought in an external expert to undertake the inquiries. And I think that, for example, it could be a model for Bar Associations moving forward.

Archival tape -- Morton:

I think that things that she has suggested that the High Court will be doing should be replicated in courts across the country, if they are not already.

BRI:

You know, to have a process set up where somebody external to the organization is brought in. The question is whether or not the members would be happy for their annual fees to cover the costs of such a mechanism that might eventually out some of them. But I think that would be a very strong and strategic move.

And also on Tuesday, the New South Wales Supreme Court Chief Justice Tom Bathurst emailed staff saying in light of recent events, the Supreme Court is aware of the need for a sexual harassment policy, which is overdue, clearly, but would be a wonderful start.

RUBY:

Bri, how optimistic are you of institutional change?

BRI:

When I was researching my piece for The Saturday Paper, I read a profile of Heydon written when he had just been appointed to the High Court in 2002, and it was just so there was just so much hero worship of a very specific sort of old and outdated image of men like him in the profession.

You know, he used to get up at 3am to write his judgments and there were busts and bronzes of Napoleon or whatever military figures looking down on him in his chambers. And I just think that...

It's like a smell. I just had this feeling of it's just such an antiquated image and it's the source of the smell. And I would just say that the time for men like these is up. That is what I would say.

At the very, very least. There are a lot of people quaking in their boots right now that they might get a phone call from Kate McClymont or Jacqueline Maley, who have been, uncovering this stuff. And they should be afraid because I think we've turned a corner.

RUBY:

Bri, thank you so much for your time today.

BRI:

Thank you for having me.

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RUBY:

Also in the news —

The Attorney General Christian Porter says his department will investigate allegations Dyson Heydon sexually harassed a former staffer of the trade union royal commission.

The allegations were made in the Sydney Morning Herald and Mr Heydon has denied any wrongdoing.

And, a total of 75 new coronavirus cases were confirmed in Victoria yesterday, bringing the states total active cases to 288.

Two childcare centres have been linked to positive cases, and six schools have been closed for deep cleaning.
Victoria’s chief health officer, Brett Sutton said Victorian lockdowns would be considered 'over the next couple of days'

I’m Ruby Jones, this is 7am, see you tomorrow.

As allegations mount against former High Court justice Dyson Heydon, Bri Lee has written about the way misogyny and harassment are embedded in the legal profession. She says that may be changing.

Guest: Writer for The Saturday Paper Bri Lee.

Background reading:

Sexual harassment in the legal profession in The Saturday Paper
The Saturday Paper
The Monthly

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7am is a daily show from The Monthly and The Saturday Paper. It’s produced by Ruby Schwartz, Atticus Bastow, and Michelle Macklem.

Elle Marsh is our features and field producer, in a position supported by the Judith Neilson Institute for Journalism and Ideas.

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254: Dyson Heydon and the misogyny of the law