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A single question reverberates throughout the Dyson Heydon affair

(Gaudron, it should be noted, ripped into a “willfully unreconstructed” Meagher for his comment that “the bar desperately needs more women barristers [because] there are so many bad ones that people may say that women … are hopeless by nature”.)

Kiefel is now Chief Justice of that court, and did something no male judge had done before her: seek to establish if what lawyer Josh Bornstein called the “legal profession’s dirtiest secret in this country” – a pattern of sexual harassment by the respected, formidable Heydon, now 77 and retired from the court, was true.

Illustration: Simon Letch

Illustration: Simon LetchCredit:

After receiving complaints, Kiefel immediately acted, commissioning an investigation. When it was found that Heydon had harassed six of his associates, Kiefel was excoriating: this was of “extreme concern” to all at the court, and, she added: “We’re ashamed that this could have happened at the High Court of Australia.” Ashamed.

Heydon has flatly denied “any allegation of predatory behaviour or breaches of the law”. In a statement, he apologised if “any conduct of his has caused offence”, adding that the offence had been “inadvertent and unintended”.

Sydney lawyer Dhanya Mani says she told NSW Supreme Court judge Guy Parker that Heydon had made sexual advances towards her in 2018, but nothing was done about it. Mani says Parker gave her permission to tell Heydon to “f–k off” if he did it again ( although Parker’s recollection of the converation appears to differ). Again, if true, the onus is on the woman to contain the man. If a judge knew, why didn’t he act?

In 2005 Rachael Patterson-Collins told Sharona Coutts, a fellow High Court associate, that Heydon had harassed her. Coutts says she told her judge Michael McHugh. ‘‘You have just truly shocked me,’’ McHugh reportedly replied. Coutts says he later told her he had spoken with chief justice Murray Gleeson. What we don’t know is what happened next: Did Gleeson speak to Heydon? Was Gleeson obliged to call in the Australian Federal Police given the gravity of the complaint? Was there any written record of the meeting? Neither Gleeson nor McHugh has spoken publicly on the matter.

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Courts are meant to exist as a check on power and provider of justice: not a place for the robed, bewigged powerful to exploit their juniors. So will change actually occur now, in the case of a retired judge? The investigator, Vivienne Thom, made several recommendations that the High Court has adopted: to develop an HR policy for associates, provide them with a supervisor, to review the induction process, to make clear that “the confidentiality requirements for associates relate only to the to work of the court” (wow, how this must have been abused), and that “the court should make clear to associates that their duties do not extend to an obligation to attend social functions”. What was missing was instructions that should be blindingly obvious to judges – just don’t harass, be creepy or assault women, or you will be out. Associates should not have to be told not to go out to events. Frankly, judges should be told not to harass women at those events. You’d think, anyway.

Thom also recommended canvassing current associates to find out more about their experiences at the court.

The significance of this finding, and public shaming, cannot be underestimated. I studied law in the 1990s and was harassed a dozen times as a paralegal, by law partners, barristers, solicitors; everyone was. In fact, I don’t know a single female lawyer that hasn’t been harassed. It’s embedded in the hierarchical, male-driven culture, where judges wield enormous power over the entire careers of their proteges. And it will only change if there are consequences for harassment and indecent assault for men in positions of power: sitting judges, sacked; SCs, struck off.

A survey of 2,324 legal practitioners by the Victorian Legal Services Board – released in April – found that 61 per cent of women in the legal sector had experienced sexual harassment, and 12 per cent of men. Most perpetrators were older, male and more senior than their target.

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And get this: 40 per cent of incidents of sexual harassment were part of a pattern of behaviour, and, for 48 per cent, the harasser had been known to be involved in similar incidents. This is what impunity breeds: repeat behaviour. It festers and spreads in fertile grounds, unchallenged.
The sluice gates are open now. The High Court has emailed another 100 women who worked there when Heydon sat on the bench, substantially broadening the inquiry.

Reporters Jacqueline Maley and Kate McClymont have been inundated with stories. There are more to come. And throughout their startling reporting, a tumble of allegations of assaults and harassment stretching back decades, is the steady, persistent drumbeat of one, simple question: “Who knew, and failed to act?”

A Sydney barrister, who was a High Court associate and who has sent to Thom his corroboration of one victim’s allegations against Heydon, texted me when the news broke: “Rest assured that everyone of any seniority in the Sydney legal community knew all about Dyson Heydon’s predations. Everyone knew, even those of us who were mere minions at the metaphorical coalface. They were all too scared.” Bornstein says “hundreds” knew. Hundreds.

It’s time for a reckoning. Meanwhile, three of Heydon’s female associates simply left the law. Heydon was an “excellent” judge, said former PM John Howard, standing by his man. Shame we’ll never know how excellent those women would have been.

Julia Baird is co-host of The Drum on ABCTV.

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