Misogyny in the legal profession – judge not, lest ye be judged
This week’s news of the sexual harassment of women allegedly perpetrated by former Australian High Court Justice Dyson Heydon AC QC, who served on the judicial bench from 2003-2013 has exposed abuse of power in the highest court in our land. Six female associates have come forward alleging that former Justice Dyson Heydon sexually harassed them. Current High Court Chief Justice Susan Kiefel stated the women’s allegations were substantiated following an independent investigation. Further allegations of sexual harassment by Justice Heydon apart from those related to the High Court have since surfaced. Former Justice Heydon has emphatically denied any wrongdoing, expressed regret for any misunderstandings, and criticised the process to reach this outcome as it has not been tested in a court of law.
It is not surprising then that female law graduates (which currently outnumber their male counterparts approximately 60% to 40%), become disillusioned with the profession and leave, career aspirations in tatters. A culture of silence has long prevailed where women feel reluctant to speak out due to potential recriminations, minimisation of the issue, or else it would threaten their career if they chose to stay.
Sexual harassment provision
Section 28A of the Sex Discrimination Act 1984 (Cth) defines sexual harassment as:
…an unwelcome sexual advance, an unwelcome request for sexual favours … or engages in other unwelcome conduct of a sexual nature in relation to the person harassed; …
The Australian Constitution – Commonwealth of Australia Constitution Act
The three pillars or ‘arms’ of power under the Federal Australian Constitution consist of the Legislature or Parliament, elected representatives who make our law, the Executive arm or our Government Departments headed by Ministers who implement the law, and the Judicial arm (the Judiciary) which adjudicates on and interprets statutes or Acts of Parliament, and the common law. The judiciary therefore provides a ‘check and balance’ on the actions of the legislature and executive. However there is not a complete separation of these three powers as High Court judges, the Prime Minister and our Ministers are officially appointed by the Governor-General, who is part of the Parliament and the Executive.
Former Prime Minister Julia Gillard
On the Parliamentary side of the pillars of power, who could forget then Prime Minister Julia Gillard’s speech in 2012 when she told the then Leader of the Opposition Tony Abbott in parliament that she, ‘…will not be lectured about sexism and misogyny by this man.’ Tony Abbott had stood next to signs out the front of the Australian Federal Parliament that said, ‘Ditch the Witch,’ and describing Julia Gillard as a ‘man’s bitch.’ More generally, his sexist comment stating, “What the housewives of Australia need to understand as they do the ironing…” say it all in relation to his view on women’s role in Australian society.
Legal culture – it’s a boys’ club
Traditional professions such as law remain a male-dominated domain where the culture is one of exclusivity, working long hours to show ‘commitment’ to the job (whereas women’s (devalued) role as unpaid domestic worker and primary caregiver for children goes towards excluding them from working such hours), being a highly competitive and assertive ‘go-getter’, networking through drinks after work, schmoozing and making connections for referrals to barristers and the like. Women will find it hard to break into this culture, let alone break the ‘glass ceiling’ and move up the ranks from associate to senior associate to partner. Further, women who aspire to be partners will face a dearth of female role models and mentors, it will be too bad if they have family responsibilities, and, of course, face more direct sexism – jokes, comments on appearance as an objectification and sexualisation of women, belittling, and leering looks which may extending to unwanted touching.
Rule of Law
Entrenched systemic sexism has been exposed to go all the way to the top, to the highest court in our land, which in one sense is not surprising but in another, we expect judges (and elected representatives) to be beyond reproach and certainly to uphold the Rule of Law as one of the oldest, fundamental and central tenets of our legal system. This is the idea that we are ALL subject to the law of our country regardless of our status; that the law applies to everyone equally.
Despite 30 years since second-wave feminism in the late 1960-early 1970s and the promotion of equal opportunity for women, access to equal pay, to higher education, part time and full time paid work, gender discrimination continues to pervade our society as unequal power relations between men and women persist. Men as a group generally hold power over women as the male gender role continues to be constructed around ‘breadwinning,’ whereas women’s role as performer of unpaid housework and primary caregiver for children continues. Women’s work in the public or paid domain is often part time and lower paid than men’s, and concentrated in roles or professions which are considered an extension of their caring role in the private sphere of the home such as nursing, child care and teaching.
Nevertheless, the bringing to light of former Justice Heydon’s case and the way it will be managed may have a positive effect and change legal culture. ‘This too’ could also compound the #MeToo movement which is rebelling against patriarchy.