Sexual Harassment in the Legal Profession with Special Guest Kate Eastman AM SC

Transcript

Good evening everyone and welcome to tonight's Brennan Justice Talk, focusing on the issue of sexual harassment in the legal profession.

My name is Renata Grossi, I'm one of the co-directors of the Brennan Justice and Leadership Program. Tonight, I'm joined by one of my fellow co-directors from the UTS Law Students' Society, Georgina Hedge, Crystal McLaughlin, our Brennan Administrator, and most importantly, our special guest and presenter for this evening, prominent Senior Counsel of the New South Wales Bar, Kate Eastman.

I'll say a little more about our speaker in a moment, but first I would like to hand over to our First Nations student, Kira Sloane, to do the Acknowledgement of Country.

Hi everyone, my name's Kira and I'm a proud Wiradjuri woman, and I'll just do a quick Acknowledgement of Country. I'd like to acknowledge the traditional custodians of the Gadigal people of the Eora Nation, whose land I'm Zooming in from today. I would further like to acknowledge the traditional custodians of the various traditional lands you are all attending from today. I'd like to pay my respects to the Elders past, present and emerging, and extend that respect to other Indigenous people who are present. If you haven't already, please pop in the chat which traditional lands you're Zooming in from. I'll now pass back to Renata for the rest of the event.

Thank you, Kira. It's really good to be reminded of one of the biggest social justice issues that we face in this country, that we are in fact on stolen land. I would also like to add my very own Acknowledgement of the Gadigal people of the Eora Nation, upon whose ancestral lands this city campus now stands, and also to pay my respects to the Elders, both past and present, and acknowledge them as the traditional custodians of knowledge of this land.

Let me take a moment to just quickly lay out some housekeeping. This Zoom event is being recorded for teaching, learning and event purposes. Only the speakers and those that ask questions in the discussion time will come up in the Zoom recording. You all have the ability to hide and show your camera, as well as to mute and unmute your microphones. When you are not speaking, please put your microphone on mute. We also appreciate that there are many reasons for not having cameras on. We do welcome seeing faces, especially when asking a question, but we completely understand if you do not do so.

Now, in relation to questions and comments, please feel free to post in the chat. We will be monitoring it throughout the talk and will put all the relevant comments and questions to our speaker during the discussion time. Finally, for our Brennan students, in order to claim your five ROJ points, if you could please list your full name now in the chat box as it appears on the UTS systems, and our Brennan team here will award you your points after this event.

Okay, that's all the housekeeping. So let's get to the very important part of the evening, which is for me to introduce to you our very special guest and speaker, Kate Eastman, who is going to be speaking on the issue of sexual harassment in the legal profession.

Kate Eastman is Senior Counsel at the New South Wales Bar. She has 30 years' experience in dispute resolution and advocacy in a wide range of legal areas, including employment, discrimination and human rights law. Kate Eastman has extensive experience in royal commissions and inquiries, preparing submissions and advice for human rights NGOs and community legal centres. She also regularly participates in mediation and conciliation of complex and multi-party disputes.

In addition to her experience in practice, Kate Eastman is also a Senior Fellow in the Faculty of Law at Monash University, where she teaches a range of postgraduate international and Australian human rights law courses. Her commitment to human rights work is evident in her extensive pro bono work, which has included, just to name some of it, representing Yazidi women trafficked into Syria, David Hicks during his time in Guantanamo Bay, asylum seekers, women experiencing sexual violence, sexual harassment and discrimination, children with disabilities seeking access to education, and in war crime investigations.

This work was recognised when Kate Eastman was awarded a New South Wales Law Foundation Award for her services to pro bono work, and in the 2021 Queen's Birthday Honours List when she was appointed as a Member of the Order of Australia.

We are indeed honoured to have such a prominent speaker here tonight. So welcome, Kate, and I look forward to your talk on a topic which is very prominent in the news this week, with the Federal Government's National Summit on Women's Safety. So tonight, Kate Eastman will talk to us about sexual harassment in the legal profession. Over to you, Kate.

Well, Renata, thank you very much for that very warm welcome. I'm absolutely delighted to join you. It's a shame we can't do this in person, but it is a great honour to participate. So thank you for the kind words.

I also acknowledge the traditional owners on the lands on which we're all meeting today and pay my respects to their Elders past, present and emerging. I also acknowledge our women, the women lawyers who've come before us, who've blazed the trails and who've opened up opportunities for us. So I certainly acknowledge and respect our elder women.

I also acknowledge the members of the faculty who are with us this evening. Thank you very much. And also to all the students participating this afternoon, a warm welcome.

I've got some slides and I'm going to speak to them, so fingers crossed that this will work. Let's see how we go.

The topic I'm going to talk about today is pretty grim. I don't have a lot of good news for you, but I hope that I'll be able to identify where we can make progress. I always find when I talk about this topic that it can have an impact, and I'm very alive to the impact of trauma. So if at any time you feel uncomfortable, I don't mind if you turn me on mute and just take a moment. I've also given you some contact numbers there as we talk through the issues.

I want to start with something quite alarming. On the 22nd of June last year, at around 4:30 in the afternoon, I can honestly say my email box exploded. It was around this time that the High Court made public the fact that it had undertaken an investigation into the conduct of a former judge of the High Court, Mr Dyson Heydon.

The court acknowledged that as a result of the investigation, the complaints concerning six associates of the court in relation to Mr Heydon's conduct towards them had been substantiated.

The Chief Justice issued a press release, and I've given you a little bit of an extract on the screen there. The Chief Justice said, "There is no place for sexual harassment in any workplace. We are ashamed this could have happened at the High Court of Australia. We've made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult for them to come forward." In that statement, the Chief Justice said that the court believes the women.

Mr Heydon has not spoken publicly about these allegations, but shortly after the release from the High Court, through his lawyers, he issued a press release denying the allegations and denying that he had done any wrongdoing.

I think it's fair to say that the news of Dyson Heydon's conduct shook us. It shook us in the sense of how could this happen at the highest levels of the legal profession? And what did this mean for us as a profession?

The reaction was extraordinary, and it's really caused a lot of deep thinking in the legal profession.

Earlier this year, at the opening of the law term, the New South Wales Chief Justice, Chief Justice Bathurst, openly acknowledged that the legal profession has had a significant problem with sexual harassment, but he also acknowledged that the profession had become acutely aware of the problem and the need to endeavour to eliminate it.

So this is what I want to talk about this evening. I want to start by looking at sexual harassment in the legal profession. We're all about rules in the legal profession, so what are the rules?

A good place to start is the definition of sexual harassment, and that's contained in the Commonwealth Sex Discrimination Act, in Section 28A. There has been an amendment to it last week, but I'll go with the version when I prepared the slides.

Essentially, this is the definition of sexual harassment. It's quite a legal definition, and you can see that there's lots of words in that, and as you know, with any statute, the task is to work out what are the meaning of these words and how does the law apply.

So I think it's always good to boil these legal concepts down to some key factors. These are the elements of sexual harassment: First, you have to identify conduct of a sexual nature. That's an objective test.

The second limb is, is that conduct unwelcome? Not all conduct of a sexual nature will be unwelcome, but where it's unwelcome to the woman, for the most part, who's on the receiving end of it, that will depend on how the particular woman responds. It's not a one-size-fits-all, and it's not a test of the reasonable woman.

But the way in which our law currently operates is it's not enough for the conduct to simply be unwelcome. There's an overlay of a test, and that is, would a reasonable person, looking at all those circumstances, have anticipated that the unwelcome conduct of a sexual nature would offend, intimidate, or humiliate the person concerned?

So this is the reasonableness overlay, and that's got both a mixed subjective and objective test. So it's quite a clunky definition.

In terms of what will be conduct of a sexual nature, that's very broad. It can be at the most serious end, sexual assault or sexual violence, and perhaps at the other end of the spectrum, although there's always degrees in this, it can be inappropriate, sexually loaded comments, jokes, innuendo. It can be things that build up over time, where somebody may be groomed over a period of time. So it's quite an array of conduct that's occurred.

In my practice over 30 years, I've kept a list of the weird and wonderful things, and I had one case in which flicking rubber bands at somebody's legs in a provocative way was an act of sexual harassment. So it's wide and varied.

Now that's the civil test that applies to all of us, including lawyers. But for lawyers, we also have a set of professional conduct rules.

In Australia, depending on whether you're practising as a solicitor or a barrister, there are rules that apply to our professional conduct.

The Legal Profession Uniform Laws—and I've put the solicitors' rules here, but it's the same for the barristers too—state that a solicitor must not engage in the course of practice conduct that constitutes discrimination, sexual harassment or workplace bullying.

That definition of sexual harassment for the solicitors' and barristers' rules is the same definition as the Sex Discrimination Act—so that's unwelcome conduct of a sexual nature.

That gives you a little bit of an idea about the rules. Now, what do we actually know about sexual harassment in the legal profession? I want to start with: it's nothing new.

When we look at how the profession has responded to sexual harassment, I think it's probably fair to say that there wasn't much attention to this issue until the mid-1990s.

There was an important report prepared in New South Wales called the Keyes-Young Report, and that looked at gender bias in the legal profession. At that time, and if I just take barristers, 60% of women barristers in New South Wales reported experiencing sexual harassment. It's quite a high number.

Then there was another groundbreaking report in 1998 in relation to Victoria and the Victorian Bar.

Around this time, New South Wales introduced a legal profession regulation called Regulation 69B, and that introduced that professional conduct rule. But it also introduced a mandatory requirement for legal practitioners to have to undergo training in discrimination, harassment, equal opportunity, and work health and safety every three years.

We had hoped by the late 1990s that you'd start to see this change in culture, but sadly that hasn't been the case.

What we see is a series of reports that followed into the new century. Probably one of the more significant reports is in 2014, the Law Council of Australia released its report on the National Attrition and Reengagement Survey (NAS) report—a big study—and that had some very alarming statistics.

Of the women who had responded to the survey for the NAS report, 55% had experienced sexual harassment in their professional life, 80% of women barristers experienced bullying or intimidation, and 84% of barristers had experienced gender discrimination.

The NAS report told us that the bar was probably the worst place for women, while in firms or in-house or in government practice, things were a little bit better.

We did a survey in New South Wales in response to our practising certificate applications, and we found that 12% of those responding had been sexually harassed.

The startling thing about all of this for me was that in 1995, with Keyes-Young, of the women who reported experiencing sexual harassment, no one made a complaint.

When the NAS report was released in 2014, and the survey participants were asked whether they had made a formal complaint, no one had made a formal complaint, but they had raised issues perhaps with their immediate supervisor or with a trusted colleague or friend.

So we have really at this stage a culture of silence in the legal profession where clearly sexual harassment was an issue, but women kept their silence. There was a reluctance to come forward or to make a complaint.

So what's then happened? I think you might recall in October 2017, the Me Too movement really burst onto the scene. That arose out of some revelations involving Harvey Weinstein in the United States, but it started to snowball.

This had an impact in Australia in this sense: the legal profession said, well, it might be us too.

There was some very significant work done by the International Bar Association. That looked at the profession across the world, and I've just got up on the slide there some of the results of the Us Too report by the International Bar Association.

The numbers were still very high in terms of the experience of women being bullied in connection with their work in the law or experiencing sexual harassment.

While this was happening in terms of the International Bar Association, and I will say talking to those involved in that, there was a very significant number of Australians who participated in this survey work.

There was also the reference made by the Australian government to ask our Sex Discrimination Commissioner, Kate Jenkins, to conduct an investigation into the experience of sexual harassment in Australian workplaces.

That resulted in the Respect@Work report, which was released on the 5th of March last year. You'll see that the findings were that there was about 30% of women who had experienced sexual harassment in the past five years, but significantly, for almost 20%, there had been a negative impact on health. This was across all industries, and you can also see some interesting findings about the cost.

While all this was happening, we said, right, can we as the legal profession look at the Respect@Work report and find out what can we do perhaps in the legal profession?

This was important in terms of the findings from the Respect@Work report: there was low awareness of what type of conduct constituted sexual harassment; there were gaps and incomplete coverage in the Sex Discrimination Act. That was particularly important because for the most part, barristers were not covered by the Sex Discrimination Act because they are not employees and they may be covered when they provide services, but for the way in which barristers or sole practitioners operated, the Sex Discrimination Act didn't apply.

Now, that's changed. It changed last week with the amendments to the Sex Discrimination Act.

You also saw those key findings that people were reluctant to make complaints and the systems for making complaints were difficult. The outcomes, if one makes a complaint of sexual harassment, were not good. The damages aren't particularly high and they're expensive to run cases. Often, non-disclosure agreements or confidentiality agreements are a real feature, and we saw this in terms of the impact in the legal profession.

Since Me Too, what's happened? We were doing a lot of work in the legal profession among women lawyers following the Respect@Work report. Women lawyers have been very involved and have made some fantastic contributions to the work of Respect@Work. There were lots of submissions made by the Lawyers' Association, by women lawyers personally, and various legal bodies.

But it really took the 22nd of June to almost shake the legal profession into action. The Law Council of Australia immediately responded, and we held a big roundtable. We pulled everybody together and we said we need a national action plan.

We need to make sure that the law is clear, that there's comprehensive coverage across the legal profession and there's a consistency of approach. We talked about the need to support women who are victims and survivors of sexual violence at work, and we needed to find pathways that if women wish to make a complaint, they would not be the ones with the burden, but the institution should take responsibility.

Around this time, it was almost like there was a wake-up in the courts. There was an important case in the full court of the Federal Court involving a solicitor in Northern New South Wales, and his persistent attempts—and his lawyer said he just wanted to be like Mr Darcy from Pride and Prejudice—was just not on in the profession.

Over the course of the last year, there's been a lot of work done within the legal profession, and we've seen other cases. There was a prosecution for professional misconduct of one of the members of the New South Wales Bar who'd been involved in a fairly lewd act at a social function. The Bar Council of New South Wales had referred that matter to the tribunal, and the tribunal made a finding that his conduct was unsatisfactory professional conduct.

There was also the release of two significant reports: one in Victoria, which looked at the experience of sexual harassment in Victorian courts and tribunals, and a big review of the South Australian legal profession.

This has really culminated also in bringing the Respect@Work recommendations together. The government announced a national roadmap to respond to Respect@Work, and that has resulted in some amendments to the Sex Discrimination Act that were introduced in June but passed last September.

We've also seen that there continues to be poor behaviour of members of the judiciary, and there was an announcement in July this year about the conduct of one of the Federal Circuit Court judges who has retired now.

So it's a grim picture. I suppose I want to leave you with these questions: is change possible, and why is there something about the legal profession?

The factors that really underpin why sexual harassment might occur in the legal profession are the following: we are a very hierarchical, patriarchal, male-dominated culture in the legal profession. This is surprising because for the last over 30 years, almost 60% of law graduates have been women. But notwithstanding this large number of women studying law and many entering the profession, it's still a very heavily male-dominated profession.

For example, in the New South Wales Bar, there's about two and a half thousand barristers. Almost one third of the entire bar are men over the age of 60. Almost half of the whole bar are men over the age of 50. There's about 50 women Senior Counsel, and we comprise maybe about 3% of the entire bar.

When we look at the profession, it continues to be male-dominated. We have entrenched gender bias in the way in which the profession is structured and works. It's a very competitive and adversarial setting. There is a lack of cultural diversity, and there is a culture of silence.

That culture of silence protects men, and it also contributes to fear among women—fear that they will be shamed, fear that they will lose their careers, and fear that they will be blamed for allowing this conduct to occur.

These issues are particularly troubling, but I think that the profession is finally facing the issues and will do something about it.

So is change possible? I think the answer is yes.

The Honourable Justice Kenneth Hayne, who served on the High Court at the same time as Dyson Heydon, has been extremely outspoken on these issues, and his view is this shouldn't be a complex matter—that men should understand when their behaviour is inappropriate. And he says simply, just stop doing it. How hard can it be, he says, just stop.

But I do think sometimes in changing cultures and understanding hierarchical environments that really are founded on patriarchal systems, it takes sometimes a little bit more than simply stopping.

We need to think about how many women there are in the profession, but importantly, to think about where women are in the profession. It's not just enough to have more than 50% of solicitors now being women, but we need women in senior leadership roles, and we need women to be visible in those leadership roles.

We need to talk about cultural change, and as women, we need to talk about what type of profession we want to work in and how we would like our profession to serve us and for us to serve our profession.

We need to address shame. One of the most startling experiences I had in listening to the stories of women who came forward and talked about what happened to them following the revelations of Dyson Heydon was a colleague of mine who I worked with when I first started as a lawyer about 30 years ago. She was a few years ahead of me and she had experienced sexual harassment. I never knew about that at the time; she hadn't told people at the time. But 30 years later, it still stuck with her. She still felt shame, but now she was angry.

She looked at her professional life and she asked herself this question: what type of woman could I have been if I was not sexually harassed? And what type of lawyer could I have been? What choices might I have made in my life had I not experienced sexual harassment?

So that reflection about the impact of sexual harassment—yes, it's acute when it occurs, but the shame and the stigma can stay with women. That's not acceptable, I don't think, in modern work life, and nor is it acceptable that somebody carries that shame and distress with them.

I think we need to change the culture by not imposing the obligations on women who experience sexual harassment to also have the burden of doing something about it or fixing it. We need to shift to institutional responsibilities, which is what the Chief Justice has talked about.

We need to think about our role as bystanders and awareness—how far do we tolerate everyday sexism? How far do we participate in it, because we've got to get on with everybody and feel that we, too, want to belong. The legal profession is one of wanting to belong.

But belonging should not come at the price of treating women unequally or allowing sexual harassment to occur.

You can probably gather I'm very strong about these issues, and the topics I've talked about are quite strong. So I'm giving you the reminder of the Respect@Work report, but the 1800RESPECT number.

From here on, I'd love to have a discussion with you and we can open up for questions and discussion. So, Georgina, over to you.

Yeah, thank you so much, Kate. That was just absolutely such an insightful presentation, and I'm sure will only become more insightful through the questions.

I would encourage everyone, if you would like to, please use the raise hand function if you would like to ask a live question—we'd love to hear your voices—but also understand that if you would prefer to just use the chat, feel free to pop your questions in there.

If anyone has any questions, please feel free to ask them in the Q&A section. If anyone has any questions, we'd love to kick off.

I think that—oh, we've got a raised hand. Maxine, would you like to kick us off with the first question?

Thank you so much, Georgina, and thank you so much, Kate. That was just so comprehensive and thought-provoking.

As you know, Kate, I work in the Faculty of Law and have taught for several years and was also in practice. I frame this question not by way of an excuse for conduct and behaviour that is unlawful, but in terms of the law itself, the practice of law, the laws that are based on very much winner-loser—the competitive, adversarial nature of law.

Do you think that has any impact on behaviour in the profession? I think also in the sporting world, where we know harassment is rife and treatment of women is a major challenge and inquiries that have been in sport as well, that that also has that kind of competitiveness about it—that there's got to be a winner in every case. Do you think that has any impact on how the profession conducts itself? Thanks, Kate.

Thanks, Maxine. That's an excellent question. I think the answer to that is yes, because that adversarial setting is very much about winning or losing, and that very much is a patriarchal structure in terms of dispute resolution.

It's a very different way of thinking when you've got one winner and one loser and you're not really looking at a solution that suits both. Whereas women, for the most part—I'm generalising—look at more systems-based thinking in terms of the way in which they might solve problems, and not just, in a sense, convert the old-fashioned form of duelling into verbal duelling in a court.

But I think at another level it's this: when you work in an adversarial setting and you've got the responsibility of representing your client and the client's paying you to advocate for them and to win the case, there's a lot of showmanship—and I use that word deliberately—in terms of the theatre of law, whether it be in a meeting or whether it be in court.

So you have to be confident. We learn our confidence based on looking at how other people conduct themselves, and our models for that really come from men rather than from women.

So I talk very much to the junior readers and new barristers about the importance of vulnerability and the courage in vulnerability. I'm very taken with Brené Brown's work on this—that courage comes from vulnerability.

It's very hard to be confident all the time when you're in an adversarial setting because you're constantly surrounded by critics—they're the judges, they're the clients, they're your opponents, they're your bosses.

I think we get into this culture of confidence to mask our vulnerability, and we forget that there's courage in expressing vulnerability or uncertainty. That doesn't sit very easily for lawyers.

So our natural inclination is not to be vulnerable, but to armour ourselves up over and over again. I think that really contributes to behaviours in terms of how lawyers interact, which almost make any opportunity to get an advantage over somebody else, or to show that you're stronger than someone else, that sexual harassment can be a result—because sex and power over women are a way of showing dominance and force.

So it's a bit of a long-winded way of answering the question, but I agree with you. I see it at a number of different levels.

Thanks so much, Kate.

Yeah, thank you, Kate. That was an amazing answer.

We have a question from the chat from Mac. His question is: do you think that adding a clause within the Legal Profession Uniform Laws would help to create cultural change within the legal profession and ensure that there are greater consequences for sexual harassment within the profession? He provides an example: suspension or removal from the bar.

With that rule for both solicitors and barristers, if there's an allegation that somebody's breached that law or that rule or acted inconsistently, then a person can make a complaint to the Legal Services Commissioner, and that complaint will then be investigated.

If the complaint is sufficiently serious to warrant it being referred to the tribunal for disciplinary action and the tribunal makes a finding of professional misconduct, then the legal practitioner can be struck off.

If the tribunal makes a finding that it's unsatisfactory professional conduct—so slightly less serious than professional misconduct—then the legal practitioner can be reprimanded, given cautions, be required to pay a fine in some cases, to undergo education or training, to be assigned a mentor, to issue an apology. So there's a range of remedies that are available.

But those remedies really are a remedy for the profession to sanction the legal practitioner. There's very limited remedies for victims of sexual harassment through that process.

The idea of having professional conduct rules is that one of the functions is to create deterrence and to say to other legal practitioners, if you behave like this, then you too may be subject to sanction and lose your opportunity to practise as a legal practitioner. So deterrence is important.

But probably deterrence is not of itself enough to achieve cultural change.

So I think it would be very difficult to put in professional conduct rules a requirement to change your cultures. That's really got to come from the profession itself and the profession, rather than just the individuals, in terms of changing culture.

So it's a good suggestion, but I think it needs something more.

We used to have the compulsory every three years training, and I've done a lot of those training courses for lawyers over the time. I've had reactions from male lawyers sitting in the front row saying, for example, "I'd love to be sexually harassed," or immediately picking up the newspaper and starting to read the newspaper when I started to speak about the issues.

So I think there's an element to how far can you force people to be responsive to it, and you have to be very creative in how you work on cultural change, rather than just imposing rules on people. But it's a great question.

Yeah, I agree. I think that's so interesting.

We've got a live question from Eliza. Thanks, Eliza.

Hi, Kate. Thanks for the talk. Maybe looking to that cultural shift again, do you think it's something that can be brought about by new lawyers entering the workforce, or do we need to have that top-down approach for it to solidify?

Great question, Eliza. Thank you. It's probably a mixture of things. You definitely need top-down, so the statements from the Chief Justice of the High Court and the Chief Justice of the Supreme Court and other courts is really important. But I think it also comes from new lawyers coming in.

That reminds me, a few years ago—probably about four years ago—I was on a panel, actually at the UTS old law school, so maybe that might be more than four years ago. It was an intervarsity session for women law students, and we were talking about sexual harassment.

On the panel, we said to each other, do you think we should tell them the real news, what it's really like? So I decided, okay, I'm just going to start by asking a question. Probably about 60 people in the room.

My question was, before we start this panel, I want to ask you this: how many of you feel that in the first five years of legal practice you might experience sexual harassment? Much to my surprise and perhaps sadness, maybe about 50% of people in the room put their hands up, but not the three men who were there.