Balancing power: sexual harassment in Australia's legal profession
In the wake of revelations about former Justice Dyson Heydon’s alleged sexual harassment of female associates, many wondered how someone with such a high profile could act with impunity over a sustained period.
To discuss sexual harassment and predatory behaviour in the legal industry, Melbourne Law School gathered: a legal sector regulator (Fiona McLeay, CEO of the Victorian Legal Services Board and Commissioner); an experienced legal adviser to those involved in cases of sexual harassment (Josh Bornstein, National Head of Employment Law at Maurice Blackburn); and Jennifer Batrouney AM QC, Convenor of the Women Barristers Association, for an online panel discussion earlier this month.
Hosted by Dean of Law Professor Pip Nicholson, the debate focused on sexual harassment and predatory behaviour in the legal profession, looking at ways to improve governance, accountability and reporting mechanisms, and workplace culture to ultimately produce change.
Professor Nicholson began the discussion by saying that like many others, she was deeply saddened to hear of the conduct of former Justice Heydon, but that it was by no means an isolated case in the legal profession.
She noted that empirical data shows predatory behaviour is widespread in the legal profession across Australia and around the world.
Ms McLeay explained that in July 2019 the Victorian Legal Services Board and Commissioner surveyed around 21,800 Victorian lawyers to compare their experience of sexual harassment with other industry groups across the country.
CEO of the Victorian Legal Services Board and Commissioner Fiona McLeay
The survey made three key findings – that sexual harassment is pervasive, it mainly affects women, and many incidents of sexual harassment were recent. It noted also that in a significant number of cases the same individual offended multiple times.
Almost two thirds of people who had experienced sexual harassment had experienced it in the past five years, and a quarter of people had experienced it in the past twelve months, so it’s not something that is dying out, she said.
Ms McLeay said the findings also showed some clear patterns that reveal the systemic nature of sexual harassment and why it is so pervasive in the legal profession.
“A really stunning finding was that 90 per cent of perpetrators are men, and three quarters of the time they are in a more senior role. About the same amount are over 40 years old, and half of the time they are all three of those things – they’re men, they’re in a senior role and they’re over the age of 40 – so there’s a clear cohort that the perpetrators fall into.”
Ms McLeay also noted that the victims of sexual harassment are very often junior women. “Almost two thirds had less than five years in the profession and one third were in their first couple of years of working as a lawyer.”
Another clear reason for the persistence of this behaviour is that there are very rarely consequences for the perpetrator.
“Only around 20 per cent of people who’d experienced this behaviour told us that they had reported it,” Ms McLeay said. “The reasons I think are well known – it’s easier to keep quiet, the systems don’t support them, they were concerned about a negative response, the implications for their career and reputation, and they were worried that they wouldn’t be believed or taken seriously.”
When we get a cohort of powerful men who can sexually harass less powerful women with impunity, we get a third factor that underpins the persistence of this behaviour – it becomes entrenched. I think our data shows clearly that this kind of behaviour flourishes where there’s a power imbalance.
Echoing these statistics, Jennifer Batrouney shared findings from the International Bar Association’s 2018 report Us Too? Bullying and sexual harassment in the legal profession – the largest ever global survey on bullying and harassment in the legal profession with nearly 7,000 respondents from 135 countries.
Convenor of the Women Barristers Association Jennifer Batrouney AM QC
“The survey covered the full spectrum of the legal profession including law firms, in-house counsel, barristers, the judiciary and government – and the results were not good,” she said.
“One in two female respondents were affected by bullying in their workplace, and one in three females reported that they were sexually harassed in a work context. In 75 per cent of sexual harassment cases the incident was never reported. This was due to many factors including the status of the perpetrator, fear of repercussion, and the incident being common in the workplace.”
Employment law expert Josh Bornstein said that while there are many mechanisms to bring a sexual harassment complaint in the legal profession, some are more effective than others. And when it comes to dealing with cases involving a judge, the process can become even more complex.
“Federally there isn’t really a proper system for accountability in respect to judicial misconduct,” he said. “There’s only what some commentators refer to as the ‘nuclear option’ which is almost never pursued, and that involves taking the matter through the Parliament where there’s allegations of very serious misconduct.” It is for this reason that the Chief Justice elected to undertake a workplace investigation with regard to former Justice Heydon, albeit that the claims were historical.
Mr Bornstein noted that in his expert view, critical to the integrity of workplace investigations is the independence of the investigator. He noted also they tended to work better in public institutions or government organisations than within the private sector.
No matter what the system is, there’s tremendous fear of taking on such powerful individuals throughout the legal profession, he said.
National Head of Employment Law at Maurice Blackburn Josh Bornstein
No matter what the system is, there’s tremendous fear of taking on such powerful individuals throughout the legal profession, he said.
Mr Borstein’s advice to young people who are the victims of sexual harassment is to first seek health support from a doctor or health specialist, then to talk to a friend or trusted mentor, and then to seek legal advice. Ms Batrouney noted the need also to exit the situation in which the harassment was arising. When laying a complaint, Mr Bornstein explained that usually he “starts with a pretty detailed letter setting out what we say has occurred and why we say it’s illegal, and what the consequences have been”.
Ms McLeay said that there is a lot of good work going on in the legal profession to address predatory behaviour, including reforms stemming from the Victorian Legal Services Board’s 2019 survey.
“One of the things we did very early was to make a very clear statement as the regulator that not only is this behaviour illegal, it’s also unethical. In other words, we would investigate the conduct of the lawyer, and depending on the severity of the behaviour, we can take action against the lawyer’s ability to practise.”
“Just making that statement alone in February last year has prompted quite a few people to come to us and talk about their experience.”
But she noted that a more holistic response is required to prevent predatory behaviour from happening in the legal profession.
Formal reporting mechanisms on their own won’t stop this behaviour, and it shouldn’t be the job of the victims of sexual harassment to have the responsibility to solve it by making formal complaints. The profession as a whole, across all levels, needs to commit to addressing this problem.
But in order to do so, Mr Bornstein said we first need to address the underlying gender power imbalance. “This is not confined to the legal profession. Sexual harassment is a manifestation of a much bigger issue which is gender inequality. For years I’ve heard about policies, procedures and training… I can tell you in the most horrible cases I deal with the policies are immaculate.”
“[Sexual harassment policies] have been everywhere for twenty years. We’ve had strong laws for 40 years. The problem still persists at an unacceptably high level and that’s because we have an industry where there are high degrees of gender inequality, but also a society where that’s a problem as well.”
Mr Bornstein’s advice to law firms to improve gender equality is to “reduce your gender pay gap to zero – give yourself three years and get rid of it. Secondly, require men to take extended paternity leave”.
Until there is very decisive intervention that addresses gender inequality in law firms, in the legal profession, and more broadly in our society, I think this is going to persist.
MLS Faculty Research Seminar on sexual harassment
This month Melbourne Law School also held a staff seminar on sexual harassment in the legal profession as part of the virtual Faculty Research Seminar series organised by Dr Scott Stephenson and Dr Inbar Levy.
Professor Beth Gaze opened proceedings by contextualising the problem in terms of the existing framework of sex discrimination and equal opportunities legislation and its limitations in a cultural setting marked by gendered power relationships.
In terms of solutions, Professor Gaze highlighted the importance of reducing the burden on complainants by allowing anonymous complaints, and protecting the identities of complainants when matters go to court. She also argued that the best solutions come from within the workplace through education, preventive policies and procedures, well-conducted investigations where appropriate, and graduated responses to inappropriate conduct.
These themes were picked up by the other panellists, Professor Julian Webb and Rachel Doyle SC, who explored the particular power dynamics of legal practise, for both solicitors and the Bar, and recognised the role of gendered hierarchies and status-based interpersonal relationships in shaping legal careers, and how this has enabled harassment to persist and remain undetected.
The panel agreed that significant advances were being made by the profession in strengthening policies and procedures. It also acknowledged the work of the legal services regulators in Victoria and New South Wales in facilitating anonymous complaints, but agreed that progress and commitment across the profession was still uneven.
Enabling and requiring a range of interventions was seen as crucial. Encouraging bystander interventions, ensuring internal investigations are independent and robust, mandating workplace behaviours training, and increasing professional reporting obligations to the regulator were all discussed in this context.
Commenting on the seminar, Professor Webb observed “this has been an important opportunity for the Faculty to reflect on issues that are increasingly at the fore of public debate about the profession, and to consider our continued contribution to processes such as the Victorian Legal Services Board’s Continuing Professional Development Review, and the Review of Sexual Harassment in Victorian Courts”.