Handbook for Judicial Officers — Relationship with legal profession, bullying and sexual harassment

The response by the Chief Justice, the Honourable Susan Kiefel AC, in the wake of the allegations of sexual harassment by a former judge of the High Court of Australia, was poignant and powerful. It focused the attention on the women. Her Honour said:^[3]

That single statement has resonated deeply within the women of the legal profession. While it is not news to us that sexual harassment has been a pervasive and on-going part of life for women in the law, it is big news that these women have been believed so unconditionally and so publicly by the most senior member of the Australian judiciary.

The effect has been cathartic on every level. As one senior female silk stated, “there has been a tsunami of conversations as women call on each other to tell their own stories”. Junior women are coming to senior women in the law and relating stories of unwanted, sordid sexual approaches and being treated as no more than sexual prey. The senior women have been listening with compassion because the stories are truly horrible. These are women who have worked so hard to become part of this profession, only to be humiliated by unwelcome comments about their appearance; made to feel lesser because their worth is not measured by merit but rather by gender; made to feel scared to walk down a hallway or to go into a room for fear of being groped. Made to feel ashamed.

However, Chief Justice Kiefel turned that around when she said that the disgrace lay elsewhere — that she was “ashamed that this could have happened at the High Court of Australia”. The dishonour is not the victims’ but rather the systemic failure within the courts and the profession to address this squalid underbelly of the profession.

The Sex Discrimination Commissioner, Ms Kate Jenkins, in the recent report titled Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020, stated:^[4]

Conduct that may amount to sexual harassment includes unwanted touching, hugging, cornering, kissing, leering, insults or taunts of a sexual nature, intrusive questions about a person’s private life or physical appearance, repeated or inappropriate invitations to go out, sexually suggestive jokes or comments, and inappropriate physical contact.^[5]

Australian citizens have a right to expect that those in whom we entrust the greatest ethical and legal responsibility, the judiciary, ought be directed to the eradication of sexual harassment — not the perpetuation of it.

Clearly, legislation is not enough. It has been over 35 years since the introduction of the Sex Discrimination Act 1984 (Cth) (“SD Act”), and 43 years since the NSW Anti-Discrimination Act 1977 (NSW) (“AD Act”). Discrimination and harassment persist however. The stories being told now by the younger women in the profession are all the more wretched because they reveal the same experiences that the senior women suffered 20 years ago and more.

Sexual harassment disproportionately affects women in the legal profession. The numbers have not really changed since 1995 when a significant number of female solicitors and barristers interviewed said that they had been subject to sexual harassment.^[6] In 2018, 47% of Australian female respondents to the International Bar Association survey reported experiencing sexual harassment at work.^[7] The Women Lawyers Association of NSW stated 71% of the 242 respondents to their 2019 survey reported being sexually harassed but only 18% had made a complaint.^[8]

And there lies the crux of the problem. Women have not complained and of course, there is good reason for that. There are real and lasting consequences for women who complain about sexual harassment — they are not believed, their complaint is treated with derision (“it’s just a bit of fun, he doesn’t mean anything by it”), the woman is ostracised or most frighteningly, they are persecuted. The rebuffed men punish the women for not acceding to their unwanted advances — rumours are started and careers are ruined. Sexual harassment is cited as a key reason why women leave the law.^[9]

In the past it was suggested that problematic judicial behaviour is rare. Now, when considering sexual harassment within the judiciary, we need to rethink those perceptions. Is it the case that sexual harassment by the judiciary is rare or, as we have learned in the past weeks, is it that it is rarely reported? Or worse still, that reports made go unactioned?

Following the emergence of the #MeToo movement in America in 2017, the reports extended to sexual harassment within the judiciary.^[10]

The American Judges Association Court Review suggested in 2018 that “despite the stringent codes of conduct that bind judges and judicial employees, employment within the judiciary (and particularly within judicial chambers) has all of the hallmarks of a workplace environment that makes harassment more likely, and that makes speaking up against harassment nearly impossible”.^[11] Factors that were cited as contributing to this issue include:^[12]

Further, law clerks are typically at the beginning of their career and are thus most vulnerable and the risk of retaliation is most acute.^[13]

In Australia, associate positions are most often filled by law graduates, many of them women. The factors are the same and the parallels to the risks in our own system are plain.

Currently the forms of redress against members of the judiciary are limited. By reason of the scope of the SD Act^[14] and the AD Act, they do not apply to judicial officers.

Similarly, the professional conduct rules which proscribe sexual harassment by solicitors^[15] and barristers,^[16] do not apply to judicial officers.

In NSW, however, a complaint may be made to the Judicial Commission pursuant to the Judicial Officers Act 1986 (NSW) in respect of the behaviour of a judicial officer.^[17] However, there is no federal judicial commission nor any other similar body.

In cases where the sexual harassment amounts to criminal conduct, charges may be laid.

The Australasian Institute of Judicial Administration’s (AIJA) Guide to Judicial Conduct^[18] is almost silent on the issue, with the rather opaque statements that “appointment to judicial office brings with it some limitations on private and public conduct. By accepting an appointment, a judge agrees to accept those limitations”; and that judicial officers must exercise “discretion in personal relationships, social contacts and activities”.^[19]

The High Court’s immediate adoption of Dr Thom’s^[20] recommendations was inspiring. However, more needs to be done.

Proposals are currently being ventilated from all aspects of the profession. Currently they include making amendments so that the SD Act and the AD Act apply to judicial officers; setting up a system for bystander complaints; and putting in place mechanisms for supporting women who have experienced harassment to provide them with information and assistance. There is no doubt that the steps taken by the Chief Justice of the Supreme Court of NSW to build on existing protections and policies, and ensure those policies are promulgated widely and understood by all, should be emulated in other jurisdictions. In that regard, the “Supreme Court Policy on Inappropriate Workplace Conduct” has been published.^[21] This policy will add to existing protections, such as the Department of Communities and Justice’s Code of Ethics and Conduct.^[22] It will also clarify the process as it applies to judges and judicial staff in the court and provide additional avenues for a person to raise an issue. The policy is to be delivered to judges and judicial staff to ensure the policy is known and understood. The NSW Attorney General has also ordered a review into the way that NSW courts and tribunals handle complaints of sexual harassment.^[23]

All women are entitled to be safe at work and no-one, including judicial officers, should violate that.