Misogyny and the law: I asked two Australian women in law about the Heydon inquiry

Words by Ella Bazzani-Hockley

Two women, fifty years, but not as much difference as I’d hoped.

For as long as I can remember, I knew my mum had an interesting job. She kept a scratchy white wig on a stand in her office and heavy black robes in her cupboard. She had a toothbrush in her desk drawer and every flat surface in her office was covered in papers and manila folders. 

She’s been a lawyer since I was a kid, which meant she always left home early and often came back late – sometimes happy, often affected, always busy thinking about something. Sometimes I’d ask what her cases were about, but most of the time I wasn’t interested.

I’d learned that my stomach was weak, while hers was strong, and that the things she’d tell me about would stick in my mind for longer than I wanted them to, so I avoided putting them there altogether. 

She came home a few weeks ago when the story – over two years in the making, by journalists Kate McClymont and Jacqueline Maley – finally broke on alleged sexual harassment by former High Court Justice Dyson Heydon. She was in a different mood. Justice Heydon, now 70, is accused of sexually harassing at least six young associates.

Since the story broke on June 22, more women have come out with allegations against the former judge – at least one Sydney barrister, the former president of the ACT Law Society, at least two students in Canberra, and a student at Oxford University.

And after a long time spent on the phone to friends, Mum still wanted to talk about it. Her friends had weighed in with a cynicism and a lack of surprise that I think Mum, in also asking for my two cents, was hoping would be confined to the 50-somethings in her friendship circle. Unfortunately, this isn’t the case. 

Almost 35 years her junior, with friends in law schools and working in the sector, she asked me if it was “still like that”. Neither of us, it seemed, was surprised to learn that men in positions of power can and do abuse that power. I had to tell her that yes, I think it is still like that. 

Surely it’s not still like that?

Mum tells me how, in the early 1980s, at one of her first bar association dinners, she’d been accosted by the lawyer sitting next to her. When she turned uncomfortably to the man on her left, he told her, “You’ll be right.”

She tells me about been interviewed for a job by a panel of ageing white male barristers, one of whom asked her whether the engagement ring on her left hand meant she could soon be expected to “have babies and leave”. All before she could, literally, take a seat at the table.

There are stories she relays to me about the same things happening to her friends; more explicitly and more aggressively propositioned by colleagues and the like, “But that was nearly 30 years ago,” she says.

But the legal tradition is one defined by its reverence for the past; after all, it’s a profession still intent on the preservation of 14th-century cloaks, wigs, courtrooms and customs.

A question of quota

Maybe for this reason, when I speak to Chloe*, a final-year law student and research assistant (similar to a judge’s associate, which all of Heydon’s accusers were), her experiences have been, by and large, the same. 

She’s in the infancy of her legal career but she tells me about an experience she had in a courtroom, where she was approached by a senior barrister (one with enough clout for Chloe to have recognised him).

“My background is that I’m Eurasian, quite… ethnically ambiguous. He immediately was just like, ‘You’re Colombian?’. I know who he is, but as far as he was concerned… I’m a stranger. He doesn’t know me,” she says.

“‘No, Mexican?’. He was almost flirting with me, very domineering. Then the barrister I work for came over and introduced me as his researcher. He was shocked, I could just see him rethinking how he was going to act around me.” 

Graduate positions, Chloe tells me, all have quotas and the like, to get young female graduates (who often outnumber their male counterparts) into jobs.

Anecdotally, Chloe says, “Women are getting just as many grad offers in junior positions… but look up any law firms, look at their senior partners and associates, it just peters out. 

“There’s a real emphasis on [getting young women into the law],” she explains. ”And I’m early enough in my career that I’m getting to reap the benefits of it now. I’m not sure whether, when you’re a little more established, those structures are still there and really benefit women who are more established.” 

Chloe posits that it might have something to do with generational differences – “When these people were in law school, there were just more men working in the law.” Chloe is hesitant to call it what we both want to.

“There’s institutionalised sexism,” she opines. Not just in the apparent prioritisation of male professorships, senior counsel positions and the like (in 2004 only 1 per cent of senior counsel were women) but “… women having babies, leaving and not coming back… these sorts of things are very clearly reflected in some of the experiences I’ve had with the higher-ups… [it’s] how interactions seem to go down.” 

Special treatment

“When I started in the law, the proportion of my bar cohort was, I think 18 per cent were female. That translated into a significant power imbalance,” Mum tells me.

‘[There was] a great deal of entitlement among the men in the profession… a great deal of nepotism, which breeds all sorts of feelings of entitlement.” 

“As lawyers, of course, we should be upholding the law … But lawyers do perhaps see themselves as occupying a certain standard within the community. I don’t know why that is, but what I do know is that lawyers can enjoy a certain sense of entitlement.”

A library full of history

The Heydon-esque, ageing white lawyer – the type who interviewed Mum back in 1990 – is just the type of ‘black-letter’ conservative counsel Heydon’s colleagues praised. To quote Bri Lee’s Saturday Paper article, it’s an “outdated stereotype” that urgently needs to change. 

Heydon apparently wrote his decisions surrounded by bronze busts of Napoleon or the Duke of Wellington in a “library full of history”.

It’s this type of reverence for the male-authored past that seems to translate into the patriarchal present. These stereotypes seem particularly pervasive and are maybe even personified by the law – cloaks, crowns, wigs, bowing. 

Chloe suggests to me that the law can be a notoriously nepotistic and conservative industry. And while sexism is everywhere, it seems particularly rife, paradoxically so, in the community supposedly responsible for the arbitration of a moral standard; for upholding and enforcing the law.

Both of the lawyers I spoke to for this story; Chloe being a 20-something, and the other being a baby boomer blamed a type of insurmountable tradition in the industry. 

With more and more women entering an industry at first intended only for men, it seems inevitable that tradition will have to change. For that reason, Heydon’s charges represent a significant cultural reckoning, a top-down, snowballing avalanche of change for the legal community.

On the 7am podcast, Bri Lee described the misogyny of the law as “smell”. “Misogyny is just like a smell… you walk around just saying to everyone, ‘Can you smell that?’ and it’s plausibly deniable. If someone doesn’t want to acknowledge this problem… they don’t have to.” But maybe now they’ll have to.

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