The law and a culture of sexual harassment: How the profession’s leaders are addressing misconduct at all levels

By Naomi Neilson|26 October 2020
The law and a culture of sexual harassment

The sensational revelations that a former justice sexually harassed female associates, young students and a past law society president may have been received with outrage, disappointment and shame but it was hardly surprising to a profession that has fielded allegations and fostered toxic cultures that existed long before the #MeToo movement. With a new spotlight, the profession has an opportunity to finally make lasting change.

In mid-2020, global headlines exposed a culture within Australia’s legal profession that permitted the sexual harassment of six young associates to go overlooked and without consequence for years. Beyond the revelations that the behaviour came at the hands of one of Australia’s most preeminent legal professionals was the fact that harassment, bullying and abuse are hardly new notions for an industry attached to a culture of power.

Perhaps without the confirmation of the inquiry and a condemnation of the harassment from Australia’s highest-ranking law professional, the Honourable Chief Justice Susan Kiefel, the allegations may have been fielded in much the same way other harassment allegations have: with a promise of change that fades out with the news cycle. Despite this trend, real and tangible change seems to be taking shape in the legal profession.

“These findings are of extreme concern to me, fellow justices, our chief executive and staff of the court,” Kiefel CJ wrote in a statement that was praised by legal bodies and leading legal professionals across the world and used as a springboard for a saturation of new announcements denouncing the inappropriate behaviour and vows to alter the culture. “We are ashamed that this could have happened at the Australian High Court.”

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At the end of a statement that launched a thousand others, Kiefel CJ promised readers that the High Court would do “all we can to make sure the experiences of these women will not be repeated”. While the results of this dedication are yet to be seen in any real, palpable way, Lawyers Weekly approached top legal professionals and the major legal bodies to determine whether it is a priority and how soon we can expect some change.

“It is crucial and necessary, both as an immediate necessity and also a very important long-term goal, to eliminate [sexual harassment] because it is the right thing to do and is unacceptable for all the reasons that we already know,” Victorian Bar CEO Katherine Lorenz told Lawyers Weekly, adding that the conduct is a symptom of an “ongoing and toxic” culture in the profession of “rudeness, discrimination and bullying”.

“If the profession as a whole – but specifically independent bars – is to be considered leaders in the community, they need to lead reform to ensure they are not left behind,” she said.

Mirroring this response, Australian Lawyers Alliance (ALA) national president Graham Droppert told Lawyers Weekly that the complaints against the justice were a “sobering reminder that the legal profession still has a long way to go” in addressing misconduct and it was “simply not an option” to ignore this issue as the headlines and notice fade: “It is a wake-up call for the profession and I think we will see action as a result.”

If these reports are not enough to clearly suggest that the profession is in a desperate, quick need of a cultural change, there is proof in the statistics – enough that comments debating the existence of sexual harassment are unwarranted, unhelpful and frankly without logical argument. In a recent NSW survey, over 70 per cent of female lawyers reported being sexually harassed, with most reporting unwelcome touching, repeated advances and objectification in the workplace and during work-related social events.

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The survey indicated that most incidents were going unreported, only 18 per cent were comfortable enough making a report to their employer and almost 50 per cent reported the harasser was their manager. Not enough evidence? A survey by Women Lawyers Association of NSW found that women were not reporting out of fear that it would have a negative impact on their jobs, reputations or ability to advance.

Some female lawyers reported being advised by the human resources department that it was unwise for them to “rock the boat” and that, had they chosen to make a complaint against a colleague or manager, the firm may not be able to do anything. Other women reported being pressured into not mentioning the incidents to anyone in the company. For male victims, the International Bar Association (IBA) found that 13 per cent of men experienced harassment in the workplace, indicating a culture that spans all genders.

Law Council of Australia (LCA) president Pauline Wright told Lawyers Weekly that the profession is “absolutely intent” on ensuring there is real reform to address misconduct in legal workplaces. The LCA has been engaged in this issue for many years now and hopes that the new attention goes a long way in achieving what the profession needs.

“What we want to see is not another talk fest,” Ms Wright vowed. “We want to see real action and I am confident that within 2020 we will have some real change.”

In a webcast for the Australian Women Lawyers (AWL) 2020 National Conference, the Sex Discrimination Commissioner Kate Jenkins said she felt “incredibly optimistic” that the profession will see real change but cautioned against leaving this on the shoulders of the victims. The onus should be with the senior professionals, firms and courts.

“It happens in all industries, in all locations, at all levels. I’m really adamant that change will happen through industry action because the past approach has been the view that it’s one bad organisation or one bad man or one bad particular culture when the reality is that one in three Australian workers have experienced sexual harassment,” she said

“The progress is happening in all different places and I am very optimistic that after 30 years of law, I can feel actual, tangible change. It’s [coming] not a moment too soon – we have such commitment ‘for a changed’ society, as well as a profession.”

A culture that thrives on power, hierarchy… and silence

At a “rudely early hour” in autumn 2013, prominent and highly successful solicitor Noor Blumer left the University of Canberra’s law ball, feeling “distressed” about an incident that had happened inside. Not long after, the university confirmed that it had escorted former justice Dyson Heydon from the event to return him to his accommodation after it had received complaints of “inappropriate behaviour” from at least one student.

Ms Blumer’s experiences were reported alongside the release of Kiefel CJ’s statement and lent some weight to the allegations. In conversation with Sydney Morning Herald, Ms Blumer reported several instances of sexual harassment during the event: first, Mr Heydon commented on a female student’s outfit and asked for her phone number then told Ms Blumer she was the “sexiest women he had ever met” before “becoming busy under the table”. When the two left the room for what Ms Blumer believed was to be a conversation about adoption law, Mr Heydon attempted to kiss and hug her.

In a statement through his lawyers, Mr Heydon has vehemently denied that any of this conduct took place and that if he caused any offence, it was “inadvertent”. He offered his apologies for the “unintended” offences and claimed that the inquiry was an internal administrative inquiry conducted by a public servant that did not lend him any favours: “The inquiry did not afford an opportunity for representatives of the person complained of to confront those complaining or to cross-examine them [about alleged conduct].”

The next morning, Ms Blumer reported what had happened to the university. After she was told Mr Heydon had been taken home early due to the experiences of at least one female student, Ms Blumer – who was the then-ACT Law Society president – said she would make a formal complaint and “stand up to support [the girls] with her tale”.

“At this time, I had no idea if this was a one-off event or something that had happened before,” Ms Blumer told the AWL conference. “I was aware that he was recently retired and that he seemed to be drinking a lot that night and I thought it was possible that he was acting out of character. My training is always give people the benefit of the doubt.”

When the university informed Ms Blumer that the students did not want to take it further than an initial complaint, Ms Blumer said she would make it clear to Mr Heydon through her contacts about the “seriousness” of his behaviour. That is what she did – but after that, apart from some close associates, “I kept his secret for about three years”. When she learnt in 2016 what had allegedly happened in the High Court against some female staff, she was “horrified” and vowed to speak up if she was asked to do so. She would not be asked about her own experiences until June 2020, seven years later.

“Given recent events, I have given a great deal of thought to the question of why there are so few women who complain about sexual harassment in the legal profession. The first and most obvious answer is – culturally – Australian’s are not raised to be dobbers [as it’s] ‘un-Australian’,” Ms Blumer told the conference at the end of August 2020.

“As lawyers, we regularly advise our clients against talking to the press or making any statements. Ours is a profession that prizes confidentiality. I’ve been asked, why didn’t I say something sooner? What was it that stopped me and what is it that stops others?”

Buried under the culture of power and hierarchy that exists within the judiciary, in firms and in-house legal teams is the culture of silence. As mentioned earlier, victims – both female and male – are reluctant to come forward with their experiences out of fear that they would lose their jobs. Ms Blumer said she has been told by other women that they were embarrassed, feared no one would believe them and they felt it was too late. For most, it comes down to the power issue: why take the word of a junior over a partner?

In a webcast for the University of New South Wales (UNSW), barrister Jane Needham SC said that what it comes down to is the “power-based” issue that exists at the highest levels of the profession. When a partner shows interest in a junior or a judge flatters a young associate, “it’s not somebody thought somebody was cute and wanted to have a drink with them, it’s an unacceptable exercise of power” that is hard to turn down.

“With the hierarchal-based structures and the gender-based structures, we just do not have an easy, welcoming, approachable complaint structure yet,” noted Ms Needham, who has been vocal about a needed response since the revelations were first released via headlines: “What is really important is hearing the voices of survivors and picking up the difficulties they have had and taking that forward into a complaints structure.

“It’s a tsunami of complaints and I think we really need to sit and listen to work on the hierarchal structures that prevent people from making complaints,” she said.

Not only are victims prevented from coming forward out of fear of losing their jobs, but for some time there was no strong complaints structure in place that brought any such comfort. As already mentioned, human resources departments are not always reliable, managers could be the ones perpetuating the harassment and often the harasser has such a high position in the firm or organisation that it is hard to see change. Ms Jenkins said that by this time, “the laws are not fit for purpose for that kind of complexity.”

It is this complexity that has already driven many young, bright minds from the law and deprived the profession of valued lawyers. Some of the six young associates who told the High Court of their experiences with Mr Heydon have left the profession altogether, and many women outside of this example have felt the same. Mr Droppert believed it a “tremendous loss” when “intelligent, capable women discontinue their careers in the law due to sexual harassment and a work culture that does not enable them to complain”.

“Essentially what the profession needs to admit is that we have got a cultural problem,” Ms Lorenz said, adding: “When I say that, the way things were done meant that long-term tolerance of poor behaviour was acceptable and the norm. It was – as we know – perpetuated by senior members of the profession. In order to change that, we need to shift the cultural dial and be committed to a [new culture] in the long-term.”

The onus for achieving this change should be with the most senior legal members and not on the shoulders of victims, but when a victim does choose to speak out about the experience and seek help, it should be wholly supported. Ms Blumer said she strongly feels that she and other women who have spoken out “have done the right thing” and while the greatest barrier to speaking out is fear, “we are strong, educated women and this is our legal profession. Why should those of us who’ve done nothing feel afraid?”

“Do I regret speaking out? No. Would I do so again? Definitely. Do I wish that I’d done it sooner? Probably, although my story on its own would not have had anywhere near the force it did coming at the same time as the statement from Kiefel CJ,” Ms Blumer said. “The more we stand together to be counted the more that the stigma will fall away and the less we will continue to be the victims of power-based sexual harassment.”

Erasing sexual harassment from the judiciary must start with judging the judges

The recent statements from heads of courts and tribunals across Australia to condemn sexual harassment may have been welcomed as a major step forward, but to the ALA president it was just the bare minimum: “It is nothing more than what should have been the most basic standard and the real question is what the judiciary will do that does go beyond a chat behind closed doors. [Saying] ‘not on my watch’ has not worked.”

Tangible change should start with reviewing judicial appointments beyond the analysis of their character and quality. Mr Droppert recommended making it a clear requirement that professionals at this level of power promote equality, equity and rejection of these behaviours as “just as important as the knowledge of law or success in their careers”.

Secondly, the judiciary should be open to a federal commission that receives and looks at complaints. These findings should be made public, so as to avoid the need for royal commissions “every five years to shine a bright light into the dark corners” of the space. Judicial officers should also be held personally liable to compensate those that operate under them who experience physical, sexual or emotional abuse in the workplace.

Establishing the federal judicial commission has been, for some time now, an objective of the LCA. Ms Wright told Lawyers Weekly that such a commission should operate at arms-length of government and the judiciary in order to appropriately and to publicly investigate complaints. She said it is an important component of judicial behaviours.

The federal commission could also manage the culture in the profession, according to former chief justice of the Family Court, the Honourable Diana Bryant. In the webcast for AWL, Bryant CJ said that the family courts had a strong system and stronger ethos instilled into public servants – including associates, court staff and any junior members of the court – that they were not the judge’s personal aid and had outside support.

“[There] has to be a really strong culture and we have to progress that within the courts. [There should be] a proper reporting process in place and staff [should know] who their supervisor is so they can go to them with a complaint,” Bryant CJ explained.

Bryant CJ added that looking into the future of the profession, courts should normalise staff having avenues of support outside the judge and that wrongful behaviour should have consequences. Training is equally important, but it should be emphasised that it is not the victim’s fault and there are consequences for not meeting the right standard. 

For people coming into the courts and the judiciary, Ms Lorenz recommended a review of the mentoring system to ensure that senior members of the profession – who do not fall into the small faction that engages in inappropriate behaviours – are given the power to speak up about misconduct and be counted: “I think if you start with the people who are leaders in the profession who stand up and call it out, it will continue to happen.”

Whatever does happen, Ms Lorenz insisted that this needs to be a whole-of-profession approach: “It needs to be supported by the membership bodies, the legal profession’s associates, other law firms, senior members of the profession, regulators and courts. If you have one body who is somehow responsible for eliminating sexual harassment, that won’t be enough. It does not just happen in courts, it happens throughout.”

Profit over wellbeing: The power struggle in firms making it difficult for victims

While the judiciary has been in the spotlight over recent months, the misconduct at the firm level has been garnering attention for far longer. Ms Wright said that although the High Court revelations were the jumping point for the current push for change, the LCA has been working on this issue for quite some time: starting with the culture.

“We know that some of the drivers of sexual harassment include that hierarchal nature of our profession, where there are marked power imbalances,” Ms Wright told Lawyers Weekly, adding that when the firm is more male-dominated, the reports of harassment are often higher. This is also due to the competitive, profits-driven nature.

“There are also the commercialism and managerialism that have come to the fore in these modern law firms that have also had its impact. The focus on profit, efficiency and client satisfaction has a kind of overriding weight that trumps concerns about wellbeing and there is also a greater acceptance because of your high performers. So, if you have a productive worker with a problematic behaviour, that person is often not condemned in the same way they might be if they weren’t such a high achiever,” Ms Wright said.

Firms should be using these revelations as an opportunity to review their own reporting processes that enable their staff to report to someone separate from the hierarchy and free from manager control. Mr Droppert said this could include exploring multifaceted, flexible reporting models “that offer a range of methods, multiple points of contact and geographic and organisational diversity where possible” to report harassment.

“Targets of bullying and sexual harassment should feel that they can report incidents – whatever the severity – and that incidents will be dealt with sensitively,” he added.

A [email protected] report – bornt from the National Inquiry into Sexual Harassment in Australian Workplaces – found that sexual harassment is a safety issue and firms must be dealing with it as a safety issue that should not require victims to come forward before the firm reviews and addresses its cultural issues and reporting processes.

Ms Jenkins encouraged staff at firms to do their own investigating by asking leadership about their prevention plans. She suggested posing the question by indicating they do not have a complaint but are curious about how the reporting process works – this way the firm may be more receptive to transparent responses. Ms Jenkins also noted that it seems firms solve the particular problem but, once it has been dealt with and closed up, it no longer investigates the culture that resulted in the complaint in the first place.

While many firms do offer staff training to prevent bullying and harassment, it could be worth switching tactics and taking it a step further to provide bystander training, which would assist with identifying the behaviour and having the confidence to call it out. This option, however, should be approached cautiously; the training should not be inflicting responsibility on peers, but rather giving them the tools to put the onus on managers.

This is particularly important as research has indicated that 60 per cent of respondents said they observed another person being sexually harassed. Almost half said that they agreed with policies that require those who observe the behaviour to report it.

Ms Jenkins acknowledged that often the conversation has moved beyond consultation in that men have reported feeling uncomfortable asking questions about the behaviour and what to look out for: “There are too many men who don’t turn up and say they are fearful of getting it wrong. You being too scared is actually unhelpful.”

Mirroring this, Ms Needham also suggested men come forward and call out behaviour: “One of the ways we will get real change is if we harness the moment we have now to get the men involved. Get men to say ‘no, that’s not appropriate’, and have some zero tolerance. I’m seeing it from some men and calling on the others to step up.”

Lawyers Weekly is aware of how fast the news cycle can move on from the real issues but we are dedicated to seeing this issue through and reporting on the changes – even if it means holding professional bodies accountable for a lack of changes. Watch this space, send us your stories and help us support a real professional change.

Much like we mentioned in the beginning of this piece, any comments indicating sexual harassment is non-existent, irrelevant or generally negative to women in law do not help the discussion and so we have made the decision to not publish comments in the online article like this. Lawyers Weekly believes victims and supports the actions of all legal bodies and legal professionals in creating real, positive cultural change. 

The law and a culture of sexual harassment: How the profession’s leaders are addressing misconduct at all levels
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