The recent investigation into Dyson Heydon's behaviour causes me to reflect with bittersweet gratitude on the time I spent as a Judge's Associate. I was Associate to a big-hearted, generous, clever man with a ready sense of humour and a deep and genuine care for those over whom he is in a position of mentoring and (let's call it what it is) power. We are friends to this day.
Reflecting on my wonderful experience makes me despair at the situations Heydon's Associates found themselves in. It sets my teeth on edge remembering all the meals "my" judge and I (for that is how we refer to "our" judges) happily shared while travelling, the flights we took, the after-hours taxi rides to accommodation interstate - sometimes very late at night if we'd left Melbourne after a full sitting day. If you did not feel safe with your Judge, or if they made you feel in any way uncomfortable or preyed upon, those day to day experiences would be steeped in dread.
This is - of course - on top of the fact that as an Associate you are beholden to your Judge's whims and wishes in a professional setting. They are your boss. They are the person you must ask for leave if you have a personal or medical issue. They will ask you to engage in professional and legal research or writing tasks that will stretch, challenge and sometimes overwhelm you. They will then critique and analyse that work, and either praise you for it, or tell you where it needs improvement. They will - for the rest of your career - be a defining headline on your CV. Many Judges treat that power carefully and with great thoughtfulness, but it is clear now that there are some whom power corrupts, and around whom the sanctity of the title of Judge places a cloak of impunity.
The relationship between Judge and Associate is necessarily intimate. When I became a barrister, whenever I was faced with a dilemma or a strategic challenge, or a curly question from the bench, I would ask myself "What would Mordy do?" and the answer usually came to me loud, clear, and full of his characteristic warmth and wisdom. His was a guiding voice in my head in the early stages of my career at the Bar, and I'll always be grateful for that. I am dismayed and angry that for so many young women, the memories formed by their Associateship - a prestigious opportunity and ideally a fabulous learning experience - are those they'd most like to leave behind.
It is incumbent upon our profession to do better, and to start to dismantle the culture of deference and "open secrets" that has allowed this rot to take hold in the halls of Australia's highest monument to justice and the rule of law.
Unfortunately, while the exposure of Heydon’s alleged behaviour has rocked the profession, it is no great surprise that such things happen. We know they do. We know this behaviour is endemic in our profession. A global study by the International Bar Association in 2019 revealed that 47% of female lawyers in Australia have experienced some form of sexual harassment at work. But it doesn’t have to be this way. I have been fortunate enough to junior and work alongside some wonderful men who have been great mentors, cheer squads, and teachers. The dynamics of those relationships have made them fun, productive and precious to me, and I treasure and enjoy them.
So, if you are a man in the profession - especially a senior man - please be mindful of a few things:
Your behaviour affects others; especially junior women. Please do not be the reason a woman dreads going to work, or the reason she leaves the law. Be the person she wants to call to chat through a dilemma.
Leers, remarks about our bodies, clothing or personal lives, uninvited touches and invitations to “smile more” are unwelcome and often tolerated so that we can continue to get good work without ruffling feathers or being called a killjoy or told to lighten up.
Going about our daily lives free from sexual harassment is a freedom too few women enjoy. Sexual harassment interferes with our right to freedom from discrimination, our confidence, self-esteem, ability to speak up and our sense of belonging in the legal “fraternity”.
If this will only make sense in terms of women’s relative proximity to you, please treat your female colleagues as you would like your daughters or granddaughters to be treated by their male colleagues.
All this is not to say that you cannot enjoy close, collegiate, genuine relationships of mutual admiration, respect and even affection with female colleagues: of course you can, and I hope you do. But if the revelations of the past week tell us anything, it is that senior men in the profession must take great care to ensure that they are not exploiting their positions of power over young women who may feel entirely unable to push back.
As senior men, you have the power to build up, support, mentor and celebrate the next generation of female lawyers and to show other men in the profession how to behave. Consider what you would like your legacy to be, and use that power wisely.
28 June 2020