A female Chief Justice permitted independent harassment inquiry

The first – and only – female Chief Justice of the High Court permitted the independent inquiry into former judge

Susan Keifel

Upon reading the damning findings from an independent inquiry undertaken by the High Court of Australia, that a former HC judge had sexually harassed six associates, my head and heart immediately went out to the young women. Some of whom left law altogether after the experience.

Knowing what I do, even peripherally, about how hard these women would have worked to secure employment in the High Court made my stomach curl.  Yesterday I wrote as much.

Almost immediately a number of comments were made on social media calling the angle out as being particularly classist: by spelling out the necessary achievements of a person to secure an associateship in the High Court it gave the impression that I was ranking victims. That I think a promising female lawyer being sexually harassed at work is somehow worse than a woman being harassed in a less prestigious job.   I don’t. But I can see how my piece yesterday could be interpreted that way.

Sexual harassment and assault thrives off power imbalances. The less power – in terms of money, privilege, connections, education – a person has the fewer options available to escape harassment and assault.

As a few readers noted yesterday lots of women are sexually harassed and assaulted at work who do not have the luxury to ‘choose’ a different career path. I accept – and abhor – that but after mulling it over for most of yesterday I don’t think that diminishes the violation that women allegedly experienced – quite literally – at the hands of Dyson Heydon.

My argument is not that these women are the most disadvantaged victims of harassment in Australia and I don’t believe their academic achievements makes their humanity somehow more valuable or special than other women. Truly.

But I don’t believe the context in which these women were harassed is irrelevant. And I don’t think that their relative privilege, certainly as far as being able to continue to find employment and earn a living, negates their experience of harassment.  

Given how widespread and prolific sexual harassment in workplaces is across the board, it is almost baffling that a woman being harassed at work is a headline-making story. The relative attention this story has attracted does suggest that some women being harassed is more shocking and less palatable than other groups of women. I may be naïve but I believe allegations of a High Court judge sexually harassing six clerical staff or librarians or cleaners would be just as shocking. 

Because the issue is the egregious abuse of power by a man in one of Australia’s most powerful institutions and the way in which that conduct was quietly permitted. The fact that many of his alleged victims were associates does raise a particular set of concerns given the persistent lack of diversity in the senior echelons of law and the judiciary in particular.

Australia has had 53 High Court judges since 1903, 13 of whom have served as Chief Justice.

Of those, 53 – out of 53 – have been white, 48 have been men and  five have been women. Twelve of the 13 Chief Justices have been men. The current Chief Justice Susan Kiefel was the first female appointed to the position in 2017.

It might seem overly reductionist to point out that the first – and only – female Chief Justice of the High Court was the one who permitted an independent inquiry into a former judge of the court but it’s relevant. Particularly when you read the notably frank and forthright public statement Kiefel CJ issued in relation to the adverse findings against the former Justice Heydon.

The Chief Justice of the High Court is, in effect, the only person with power to hold another High Court judge – even a former High Court judge – to account.

For the first two years Heydon was a High Court judge, from 2003 to 2005, the entire bench was comprised of men. He replaced the retiring Mary Gaudron, Australia’s first ever female High Court judge. Aside from creating a remarkably homogenous group of law-writers, it’s worth considering the impact seven very powerful, much older male bosses might have had on the culture and atmosphere of the workplace. Certainly it’s not hard to imagine why a young female staff member might not have felt comfortable to disclose any wrong-doing in that environment.

The all-male composition changed when Susan Crennan joined the High Court in 2005, Susan Kiefel in 2007 and Virginia Bell in 2009.

The High Court bench currently comprises three women and four men which is as gender equal as it’s ever been.

Associateships are the first foot in the door for building a career that may lead to the judiciary: ensuring some diversity at that point is critical. Gender is obviously not definitive when it comes to diversity – class and race remain woefully underrepresented in the judiciary – but given the historical dominance of men in the High Court gender certainly isn’t redundant.

There are only seven High Court judges at any one time. They employ two associates for either a year or two. That means there is a maximum of 14 of those jobs available in any given year. That is a tiny but important funnel. There is no alternative path to replicate that particular professional experience.   

For a woman to get there only to be harassed by her much more powerful boss and then abandon the profession altogether is deeply troubling on so many levels. The violation and humiliation on an individual level is utterly repugnant. As it is for any woman in any workplace.

But there is a broader opportunity cost for women in these positions abandoning their chosen path too. At the time of publication, there are have been no reports that any male associates, lawyers, barristers or law students ever had to endure lewd conduct at the hands of a High Court judge emboldened to act with impunity.

The women who did, though undoubtedly privileged, were not on an even playing field with their male peers at the same level who were free to enjoy the same professional opportunities without fear of being sexually harassed or the fear of being maligned if they didn’t acquiesce or if they complained.

The inequity between men and women in this section of profession is already vast but this situation exacerbates and compounds it. It’s this disparity between men and women that needs to be challenged and fought wherever it exists.

If it weren’t for the High Court undertaking its own independent investigation, The Sydney Morning Herald’s Kate McClymont and Jacqueline Maley admitted that the allegations of harassment by the former would have been very difficult to publish. As they discussed on the Please Explain podcast on Tuesday, it gave a level of veracity to the allegations rarely afforded to publishers or victims.

Without a female Chief Justice, would that independent investigation have occurred? Without a female Chief Justice would the victims have been apologised to personally by a Chief Justice? Would their courage in speaking out be specifically acknowledged in a public apology?

If it weren’t for an independent inquiry determining that six young women were harassed by a former High Court judge would other women have been willing to risk speaking up about their own adverse experiences with the same judge?

I doubt it. And while it’s not reasonable or fair to expect that every woman in a position of power can or will use that to effect positive change for members of their gender – given that’s not an expectation their male peers carry – having a female Chief Justice appears to have at least played a role in providing the circuit breaker necessary to uncover a pattern of disturbing behaviour.

What if Susan Kiefel had been sexually harassed at the start of her career in such a way that it led to her leaving the law? The cost would have been greater than just her dreams being dashed. Not because she’s intrinsically more valuable than other women but because she has been able to effect change.

Doing what we can to ensure as many women can effect change as possible is one way, I am certain, we can ensure as few women as possible are forced to leave or endure places of work due to harassment.

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