The High Court of Australia, as the name suggests, is the highest court in all of Australia. It is the top of the legal tree.
There are seven positions on the esteemed bench and the men and women appointed judges are invariably, unsurprisingly, considered the sharpest, most pre-eminent legal minds in the country.
There is no overstating the power of a High Court judge – and not just in legal circles. It’s not a stretch to describe sitting High Court judges as among the most powerful citizens in the country at any point in time.
Judges in Australia, at most ranks, generally employ associates, recent legal graduates, to work with them for a year at a time. An associate effectively shadows a judge for a year as a quasi-personal assistant: during their associateship they will undertake research, help review judgements, organise the judge’s schedule, travel together as required. The close quarters in which a judge and associates co-exist is peculiar.
Associateships are incredibly coveted among the brightest law students, particularly those with a view to establishing a career at the bar, and eventually the judiciary, because of the path it paves. An associateship means opening the door to a particularly illustrious brand of legal career.
It’s fair to say all associateships with judges are prestigious but, needless to say, working with a High Court judge is in a different stratosphere altogether. It is the top of the tree.
It is the most highly-coveted career opportunity and it is only available to the most academically-gifted law students and legal graduates. And, academic-brilliance is the absolute baseline.
Candidates who are selected for interviews will be the top of all of their classes. If they’ve already graduated they likely took home the university medal, if they’re still studying they’ll be on track to have their name engraved on it when the finish.
They will be active and committed community members with a number of pursuits in which they excel. Music. Sport. Student politics. Charitable endeavours.
They will be talented, no doubt, but their work ethic will be inexhaustible. They will not accidentally win the university medal. They will not merely get ‘lucky’ and land a role working with one of the top judge’s in Australia.
They will work doggedly to make that happen.
They may herald from a comfortable background. Privilege is relevant in the realm of the legal profession, and the High Court in particular. A bastion of diversity it is not.
Being white, male, attending a private school, particularly of the all-boy variety and gaining entrance into a sandstone institution are all boxes very commonly ticked by the individuals appointed to the High Court. And, they are all markers of privilege.
But privilege alone will not score an ambitious legal student a High Court associateship. To contemplate the hurdles an individual needs to clear to secure themselves this prize is exhausting.
The only friend I have who successfully applied to work with an esteemed High Court judge graduated from law with First Class Honours and worked at a top tier firm in Sydney before being accepted to Oxford University where she completed the prestigious BCL and a Masters of Public International Law.
That is the kind of resume an interview with a High Court judge demands. After a thorough and formidable selection my friend was offered an associateship. She would commence in two years. These are jobs you wait two years for.
I am telling you this because I have some very peripheral knowledge of what these jobs entail. It is no ordinary job. It is an enormous achievement in and of itself.
Which makes the idea of someone realising that dream only to be sexually harassed by their new boss, a High Court judge no less, utterly contemptible.
On Monday The Sydney Morning Herald’s Kate McClymont and Jacqueline Maley published a damning investigation revealing precisely this.
They reported that former High Court Judge, Dyson Heydon, had been found by a High Court inquiry to have sexually harassed six female associates. One on her very first day. At least two of the associates left law altogether after the experience.
“We are ashamed that this could have happened at the High Court of Australia,” the Chief Justice of the High Court, Susan Keifel, said in a statement. “The High Court was advised last year of allegations of sexual harassment against a former Justice and we immediately acted to commission an independent investigation.”
“The investigation, conducted by Dr Vivienne Thorn AM, took some months to complete. We received Dr Thorn’s report and have provided it to the six complainants and to the Justice in question. The investigation found that six former Court staff members who were Judges’ Associates were harassed by the former Justice.”
“We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed. I have appreciated the opportunity to talk with a number of the women about their experiences and to apologise to them in person.”
The Sydney Morning Herald’s investigation, several years in the making, reveals a pattern of predatory sexual conduct by the former Judge – and not just to associates.
Towards female law students but also towards more senior barristers and prominent lawyers. His conduct was reportedly “an open secret”.
A particularly egregious incident, corroborated by a contemporaneous file note and multiple sources involved the Judge being removed from the University of Canberra’s Law Ball at which he was the guest speaker in 2013.
Aside from groping Noor Blumer, a prominent Canberra lawyer who was the President of the ACT Law Society at the time, under the table and trying to kiss her, a student reported inappropriate conduct which resulted in the judge being removed from the event.
Via his lawyers Heydon ‘categorically denies’ allegations of predatory behaviour or breaches of the law.
“The inquiry was an internal administrative inquiry and was conducted by a public servant and not by a lawyer, judge or a tribunal member,” the statement issued by his lawyers reads. “It was conducted without having statutory powers of investigation and of administering affirmations or oaths. The inquiry did not afford any opportunity for representatives of the person complained of to confront those complaining or to cross-examine them.”
The use of the word ‘confront’ is illuminating. How ghastly that a powerful man would be denied the opportunity to confront a person who dared to complain about him? Without an opportunity to ‘confront’ such a person how could they be forced into silence?
The statement goes on: “If any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused. We have asked the High Court to convey that directly to the Associate complainants.”
That an individual who was routinely described as one of Australia’s most brilliant legal minds would struggle to comprehend that putting very junior women into situations in which they would be forced to evade his advances might cause offence is insulting.
I should not be shocked. We know, beyond a shadow of a doubt, that sexual harassment in workplaces is not an ancient relic. It is disturbingly prolific. But even by post #MeToo standards, this is truly shocking.
It is difficult to envisage a more flagrant breach of trust, power and privilege than what’s been reported.
Even a sitting judge, who was a successful and senior barrister at the time, when she alleges that Heydon violated her at dinner, couldn’t speak up.
“He indecently assaulted me. I have no doubt it was a crime and he knew I was not consenting,” the judge told The Sydney Morning Herald. “The power imbalance is such that he is so senior … He was a giant of the profession.”
A giant of the profession who has reportedly been terrorising females unlucky enough to cross paths with him for decades. In 2015 he was reportedly forced to leave a visiting professorship at Oxford University because of a student complaint.
The Sydney Morning Herald’s investigation makes two things abundantly clear: a pattern of deeply problematic behaviour, that was known to many. The complicity is almost as ghastly as the former and deserves to be forensically scrutinised.
The courage of these women to speak on the record is astonishing. That their professional dreams were derailed by this despicable conduct is nothing short of tragic. How many other brilliant female lawyers are left in the wake?
As Jane Caro noted on Twitter on Monday night: there is often talk of women ‘opting out’ of certain professions due to a preference to stay home. But perhaps what they want is the freedom to avoid harassment?
Certainly in law, the lack of women in senior positions is very often explained as being driven by “choice”. I’ve always found it particularly offensive but never more so than now.
Aside from being a very convenient solution to avoid changing anything to make workplaces and organisations and institutions less hostile, it totally dismissed the realities women who “choose” to leave face. The loss of talent and hard work is abysmal.