This makes the widespread shock at the Heydon news perplexing. We should not be surprised that a member of Australia’s High Court has been found, by an independent inquiry, to have sexually harassed at least six of his junior associates. We should not be surprised that eminent barristers, judges, and law firm partners have similar skeletons in their closets. Given the statistics, it would be surprising if there were not any sexual harassers within our judiciary.

Indeed, perhaps the most surprising aspect of this whole affair is that Heydon’s conduct did not come to light sooner. That fact reflects poorly on many – including his colleagues at the bar, where it had reportedly been an ‘open secret’, and his peers on the bench, at least two of whom, the SMH alleges, were aware of incidents when they occurred. While several other high profile Australians were identified as sexual harassers in the early days of #MeToo, it took almost three years for this reporting to see the light; reflecting, no doubt, the conservative nature of law and the plaintiff-friendly nature of Australia’s defamation regime.

But now we know, and we can hardly feign ignorance of the reams of research. In a profession that prides itself on the highest ethical standards, the evidence suggests there is a deficit of good moral character. Aristotle’s commandment is today reflected in the professional conduct regulations that govern the legal profession. The uniform conduct rules, for example, which have been adopted in a majority of states and territories, provide that ‘a solicitor must not in the course of practice, engage in conduct which constitutes discrimination, sexual harassment or workplace bullying’. Yet the harassment continues.

There is a paradox in the way we talk about workplace sexual harassment. We gravitate to stories, to individuals, to outrage. The Heydon story was on our front pages for a week. But he is a symptom, not the cause. Heydon is just another wrongdoer in a profession with plentiful harassers and in a society where harassment is rife. The ex-judge’s status makes the purported conduct all the more reprehensible, but his harassing is otherwise depressingly orthodox.

I began this article with some stories: three responses to the IBA’s survey, each from a member of the legal profession in Australia. They are shocking. But again, sadly, they are not unusual. In our subsequent report, Us Too? Bullying and Sexual Harassment in the Legal Profession, we shared as many as we had space to include, alongside tables and graphs displaying the grim data. Within a password-protected spreadsheet on my laptop are thousands more of these personal stories.

After we published Us Too? in May 2019, I set out on a global campaign to talk to the legal profession about harassment. I personally visited twenty-five cities across five continents; colleagues saw to another five cities and the sixth continent. In each location, we would host public and private events and meet with stakeholders – law firms, judges, barristers, representative associations, law schools, young lawyer groups, women lawyer groups, regulators, and many others. Between May 2019 and March 2020, when Covid-19 precluded our thirty-first and final trip, we presented our data hundreds of times to thousands of people.

It was always the stories that elicited audible gasps. Inevitably, when I clicked to a slide containing one of the survey responses, the audience would be stunned into silence. I suppose that is the nature of explicating in such direct language things that are usually taboo, shrouded in silence. From Sydney to São Paulo to Singapore, whether presenting to law students or senior partners, the personal stories hit home.

Yet as the journey wore on, I began to reflect on the efficacy of stories in driving positive change. It is human nature to be drawn to these anecdotes: even though the raw data should be more shocking by virtue of the pervasiveness it reveals, we feel a strong emotional response to these deeply personal stories. Behind the numbers are real people and real suffering. But we have been hearing these stories for decades now (and in many cases experiencing them firsthand). As a profession, and as a society, we have only acted haltingly, through ad hoc initiatives and individual disputation, the latter often shrouded in secrecy by non-disclosure agreements. How do we harness the power of these stories – the outrage at Heydon being the most recent example in a long list – to drive systemic, enduring change?

A week after the news broke, I met with a target of Heydon’s conduct for coffee. She put into words what I had been thinking: ‘We have to move the conversation along. By focusing on Heydon, we miss the bigger picture.’

None of that diminishes the importance of targets and bystanders speaking up. Individuals reporting incidents remain the primary way that harassment is addressed, and workplaces should endeavour to provide flexible reporting channels to encourage targets to raise their voices. Speaking up can also be a moment of empowerment; hundreds of respondents to our survey said that it was the first time they had told anyone about their experience. We should applaud these individuals for courageously sharing their stories. We should provide them with whatever support and assistance they require. But we must move away from an individual-centric approach and focus on a structural response. Perhaps, then, these personal stories might move us beyond shame and outrage, and provoke wider change.

What does that mean? What does change actually look like? The risk inherent in our focus on high-profile individual cases is that most harassment is not Heydon-esque. Our emphasis on Heydon and whoever next incurs our righteous public wrath (have no doubt – someone will follow) obscures that significant fact.

Our survey found that two-thirds of respondents who had been sexually harassed experienced sexist, sexual, or sexually suggestive comments; half had been looked at in an inappropriate manner, while nearly half had experienced ‘inappropriate physical contact, for example patting, pinching, brushing up against the body’. In contrast, one in five had experienced ‘seriously inappropriate physical contact, for example, kissing, fondling or groping’, and three per cent had been raped. Our research also indicated that non-sexual harassment – bullying – is endemic: globally, one in two female lawyers and one in three male lawyers have experienced it. Once again, the numbers were significantly higher in Australia: seventy-three per cent of female lawyers and fifty per cent of male lawyers said they had been bullied at work.

In other words, the vast majority of harassment in legal workplaces is latent and non-physical. That makes it no less insidious, no less corrosive, and often no less impactful on the targets of the behaviour. More ‘serious’ incidents may of course have an aggravated impact. Law’s harassment problem looks like Heydon’s purported wrongdoing; it also more commonly looks like the ‘everyday’ inappropriate conduct that remains widespread in Australian workplaces.

My fear is that by focusing on Heydon et al it is too easy for members of the profession to say ‘I am not Dyson Heydon’ or, echoing #MeToo, ‘I am not Harvey Weinstein’, as if their responsibility ends there. Every member of the law needs to reflect on a daily basis about how we treat one another. We must act with respect and civility, we must call out inappropriate behaviour when we see it, and we must support those who endure harassment. Every single member of the law – from junior lawyers to senior judges – must say: ‘This is my problem, too.’

Acknowledging this reality helps inform the development of wider structural initiatives. This is not a case of a few bad apples – this is a rotting barrel. To achieve change, we must better understand the reasons for that decay: a male-dominated senior leadership, extremely long work hours, chronic stress and anxiety, mental health challenges, pervasive alcohol consumption and so on. These are not excuses, but they do help explain and, it is to be hoped, will in turn aid positive change.

Ultimately, that change comes through a long process of shifting the profession’s culture. Improving the anti-harassment ‘infrastructure’ – policies, procedures, training – is a vital condition for change. But it is not a sufficient condition. We must change attitudes, opinions, and mindsets – no paperwork ever achieved that.

This is a story about one particular sector, a small subset of our community. Yet it has pressing relevance for our entire society. The challenges currently facing the legal profession are not atypical. The law may be undergoing its own, distinct #MeToo moment, and the profession may be unusual in the millennia-old obligations of good moral character (now with modern regulatory underpinnings). But the law is not alone in being a repository of sexual harassment and other workplace wrongdoing.

In March 2020, the Australian Human Rights Commission published its landmark Respect@Work report on the national inquiry into workplace sexual harassment in Australia. It found that the phenomenon is ‘prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces’. The Commission’s cross-sectoral data broadly mirrors the statistics from law: it found that thirty-nine per cent of women and twenty-six per cent of men had been sexually harassed at work within the past five years.

Australia was once at the forefront of efforts to eradicate sexual harassment, from our workplaces and society at large. State anti-discrimination laws indirectly prohibited sexual harassment in the 1970s; in 1984 the federal Sex Discrimination Act explicitly made sexual harassment unlawful, and established a Sex Discrimination Commissioner to oversee this change (the current Commissioner, Kate Jenkins, led the recent national inquiry).

But change has not fully materialised. The Heydon reportage throws into stark relief what academic and industry research has been telling us for decades: sexual harassment remains widespread, in the law and elsewhere. It is usually not reported, and it exacts a significant toll on targets and those around them – an impact on human rights, human dignity, and human productivity. Our formal initiatives to address harassment are not working; Commissioner Jenkins wrote in the foreword to her report, ‘the current legal and regulatory system is simply no longer fit for purpose’.

During the Us Too? campaign, wherever I was in the world I would conclude my presentations with one final story. In 1983, a major American law firm held a ‘swim-suit competition’ for its summer interns. The firm had wanted to hold a wet T-shirt competition, but colleagues suggested that was ill-advised. The firm persisted with the competition and the ‘winner’, a Harvard law student, was given a graduate role with the firm. A partner told the Wall Street Journal: ‘She has the body we’d like to see more of.’

My slide that accompanied this story contained two words, in large bold font: ‘Maintaining Momentum’. When the Journal story was published, it provoked considerable outrage across the profession. A few years later, a survey of female American lawyers found that sixty per cent had been sexually harassed. The American Bar Association subsequently recognised sexual harassment as a ‘serious problem’ in a formally ratified resolution.

In other words, none of this is new. We have known since the 1980s that sexual harassment is rife in law. Swimsuit competitions, #MeToo, and now Dyson Heydon have given sporadic impetus to efforts to provide safe and supportive work environments. But ultimately, as a profession and as a society, we did not meet these aspirations.

We have, variously, felt surprise, outrage, collective shame. Now we have to maintain the momentum and achieve real change. Anything less will be to betray those who have summoned the courage to tell their stories. Anything less would amount to complicity. There is no good moral character in that. 

This article, one of a series of ABR commentaries addressing cultural and political subjects, was funded by the Copyright Agency’s Cultural Fund.

Kieran Pender is an Australian writer and lawyer. He is a senior legal adviser with the IBA's Legal Policy & Research Unit in London. These views are his own.