High Court Mintabie book-up
(Image: AAP/Lukas Coch)

For all the wigs and gowns and post-nominals and honorifics, for all the rituals and ceremonies, for all the insistence that it occupies a position above the rest of the community and is worthy of special reverence, it turns out the legal industry is occupied by the same sex pests and predators, serial gropers and harassers as every other industry.

Only, it has been more successful at keeping it hidden.

While there are now more female than male solicitors, and female graduates now outnumber male graduates in law firms, the senior ranks of the legal industry remains dominated by men.

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Women occupy 30-35% of judicial positions in most jurisdictions, with the outliers being the ACT (54%) and Tasmania (24%). In the Commonwealth, female judicial officers make up just 36%. In NSW, the bar is less than one-quarter female, and only 11% of senior counsel are women.

Older statistics from Victoria suggest there are even fewer female senior counsel in that state.

That means the legal industry has a large number of younger, more junior women while the top ranks, and therefore the power in professional relationships, are dominated by older males — usually white males from privileged backgrounds involving top-flight private schools and elite universities. (When I began law at Sydney University in 1986 we were told all but one of the judges in NSW was a Sydney graduate. That has now changed to… three-quarters of all NSW judges went to Sydney.)

Not merely do senior male lawyers possess privilege and professional power, they are awarded the highest status possible in the community, and given vast power.

Judicial independence means they are almost impossible to sack in the absence of egregious misbehaviour. They are able to direct the criminal justice system, wield near-absolute power in their own courts, and have significant professional power within the industry, with an ability to make or break careers.

That some of them — undoubtedly a small minority — treat their workplaces as a supermarket for sexual predation can hardly be a surprise. The demographics of the industry, its power balances, its professional structures, its lack of accountability and the social status of its senior figures are a recipe for sexual harassment and worse.

But only now, thanks to the courage of former female associates of Dyson Heydon and several other female lawyers, as well as brave journalism by Kate McClymont and Jacqueline Maley at The Sydney Morning Herald, is the blight of legal industry sexual harassment being revealed.

It’s clear that, until now, powerful figures within the industry were able to keep it hidden from view.

Much of the criticism in relation to the Heydon scandal relates to the refusal of former High Court chief justice Murray Gleeson and his blank refusal to comment on claims that he was aware of at least one allegation against Heydon while chief justice.

Instead, it was left to current chief justice Susan Keifel to take on the issue.

The silence of Gleeson — whose daughter Jacqueline is a Federal Court judge — seems particularly concerning given there are now real questions about how widespread knowledge of Heydon’s conduct was, and why Heydon was appointed to lead a royal commission (however dubious and partisan an exercise the now entirely discredited trade union royal commission was) by the Abbott government.

Did Tony Abbott, then-attorney-general George Brandis and other senior ministers know about Heydon’s alleged conduct, which at least one woman claims continued while he was royal commissioner? Why weren’t they told?

But singling out Gleeson as an agent of the secrecy around an unrevealed plague of harassment misses the point that the whole legal industry is obsessed with secrecy and a lack of public accountability. A loathing of public criticism and accountability is innate to the legal industry.

It clothes itself in a rich garb of ceremony and appearance designed to deter questioning by the public and suggest that its high-minded members are above the rest of us and should not be subject to critique.

It systematically infantilises the community by insisting it should be able to dictate what people know and don’t know. And it uses its extensive powers to enforce that. Even now, a Victorian court is pursuing the outrageous prosecution of journalists, editors and producers for allegedly breaching a suppression order relating to George Pell.

Suppression orders — usually secured by the wealthy and powerful — are a core element of the legal system, especially in jurisdictions like Victoria.

Victorian judges also demanded that three federal ministers — people who, whether you agree with them or not, are elected by voters, in contrast to judges — apologise to them for entirely innocuous criticisms about sentencing.

An entire myth has been constructed around the fact that elected politicians should not criticise the judiciary for rotten decisions, the sort of immunity from criticism that other industries can only dream of.

When an industry believes that it should be above criticism, that it should not be subject to the same critique and accountability as others, that it is “special”, then is it any surprise that it is happy to keep the sexual predation of a small number of senior figures hidden from sight?

The silence of the law should indeed be broken down — and about a lot more than sexual harassment.

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Peter Fray
Peter Fray
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