Many were shocked yesterday to learn of allegations that Dyson Heydon engaged in repeated acts of sexual harassment while a member of the High Court of Australia.
The news is indeed deeply troubling: it reminds us that harassment and discrimination can and does occur at the highest levels of Australian public and private institutions; and that it can be very hard for victims to gain redress.
In this case, the High Court has acted in just the way we would hope – as an institution
committed both to procedural fairness and substantive justice. Chief Justice Kiefel appointed Dr Vivienne Thom, a highly qualified and independent officer, to investigate the complaints. Dr Thom probed the credibility of the allegations and gave Heydon an opportunity to respond to the allegations.
This was clearly sufficient to meet the requirements of procedural fairness. The contrary
suggestion from Heydon's lawyers – that the inquiry was conducted "without administering affirmations or oaths" or any opportunity to "confront those complaining or to cross-examine them" – does not comport with the purpose of the investigation,
and its non-criminal nature.
And in a "me too" era, this degree of due process is in fact quite unusual: this was not trial by
media or social media.
The commissioner Dyson Heydon arrives at the royal commission into trade unions in 2015 in Sydney,Credit:Ben Rushton
Ultimately, the High Court issued a statement saying the women's accounts of their experiences "have been believed", and led to a range of policy changes by the High Court that will deliver real if overdue progress in achieving gender justice.
We should be encouraging all chief justices around the country to support the listing of sexual harassment as judicial misconduct, and adopt similar procedural changes within their own courts, to make this progress even broader and more significant.
What is important to note, however, is that it took until 2019 for the complainants to approach Kiefel with their allegations, when most of the alleged acts occurred more than 10 to 15 years earlier.
There is no suggestion that any formal complaints were made directly to earlier chief justices. If they had been, I would have expected a swift and effective response. Indeed it is possible that more informal steps were taken by members of the court to prevent the risk of misconduct recurring, even in the absence of a formal complaint.
This highlights the obstacles complainants often face when looking to report sexual harassment. There was in fact a path for a formal complaint – the chief justice as head of the court is responsible for dealing with such matters, and failing her (or him), the senior justice on the court, or the attorney-general.
But the path was not made clear to associates. And clear and independent complaints mechanisms are essential to ensuring justice in this context.
And in any event, young women seeking a career in the law may hesitate to approach such senior law officers, especially if they are not aware of others wishing to do so.
The same is true elsewhere: often it is not a lack of legal protection that is the problem, but
the perceived lack of accessibility of that protection.
The most important change proposed by the High Court, in this context, is to appoint an
independent second manager responsible for "checking in regularly with associates" and
liaising with more senior court officers.
All organisations should be looking to make changes of this kind. We should not wait for vulnerable complainants to approach senior people with complaints – but proactively alert employees of the existence of accessible complaints mechanisms, and regularly survey them about their experiences, either formally or informally, so that patterns of misconduct can be identified and rectified promptly and effectively.
The High Court is not just our highest court of appeal. It is an exemplar of how justice is and should be done. And in that respect, it has acted decisively – if after a regrettable delay – to redress gender injustice.
It is time other organisations thought more about how they could do more to follow that
example – and encourage the proactive not just reactive investigation and support of
sexual harassment complaints.
Rosalind Dixon is a professor of law at UNSW Sydney and Director of the Gilbert + Tobin
Centre of Public Law.
Rosalind Dixon is a professor of law at UNSW Sydney and Director of the Gilbert + Tobin Centre of Public Law.
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