The ACT DPP, Shane Drumgold SC, wants the AFP to examine the reports of Heydon’s sexual harassments “to determine whether or not criminal charges should result”. LATE EXTRA … A family take-home guide to fresh fallouts from the Dyson Heydon revelations … Heydon’s harassments … Civil and criminal possibilities … Who knew what, when … Gleeson keeps schtum … Previous cover-ups at the top … Sex harassment policies getting a hasty work-over … Strange wrinkles … Ginger Snatch updates the drama
It’s all hands to the pumps as courts and tribunals freshen-up their sexual harassment policies and women lawyers come forward with frightening stories of their dangerous lives in the dark mills of the law.
Since Monday, when The Sydney Morning Herald and The Age splashed with their front page exclusives on Heydon’s harassments, fresh developments have emerged …
Justice Michael McHugh was told in 2005 by his associate Sharona Coutts that Heydon, 62 at the time, had tried to kiss his associate Rachael Patterson Collins, 26. That encounter took place in the High Court.
This information came from the investigation conducted for the court by Vivienne Thom, the former Inspector General of Intelligence and Security, who in that capacity had a role to play in the Bernard Collaery case.
McHugh told chief justice Murray Gleeson about Heydon’s attempted kiss. Nothing much seems to have happened because in 2011 and 2012, shortly before he retired, Heydon was still sexually harassing associates – Chelsea Tabard and her predecessor Alex Eggerking, according to the SMH/Age investigation.
Gleeson and McHugh are not being helpful in response to follow-up media inquiries, although the former CJ seems to be denying that he was told about Heydon in 2005.
Gleeson has form in this area. Justice James Wood’s police royal commission reported that as chief justice of NSW Gleeson had told ICAC, under the management of Ian Temby at the time, not to be too troubled about allegations concerning Justice David Yeldham’s activities as a “cottager” in public toilets. Temby went to see Gleeson on November 29, 1989 after receiving reports about an “incident” involving Yeldham in the toilets at Central Railway.
The Wood commission report said the chief justice put Temby’s anxieties to rest, telling him:
“Yeldham was a married man with a family, was reputedly a person of extremely conservative personal habits, held high office in the Presbyterian church, and was generally regarded as a person extremely unlikely to have engaged in conduct of the kind that had been the subject of the earlier rumour, which so far as he was aware had never come to anything.”
Wood reported that Yeldham had been allowed to “fall within the cracks” without a proper investigation.
All of which suggests Heydon’s alleged victims who worked at the High Court are fortunate that now there is a chief justice in Susan Kiefel who took their complaints seriously and did something about them.
Phillipa Lynch, the High Court’s chief executive and principal registrar, has emailed 108 former associates asking if any of them would like to talk to Ms Thom “about their own experiences while at the court”.
Attorney General Porter said on Wednesday (June 24) that the Commonwealth doesn’t want to get involved in any civil actions brought by the alleged victims:
“The lawyers for the complainant said yesterday or the day before, that they’d be pursuing compensation and they used the words from the Commonwealth.
They said that through discussions with lawyers for the Commonwealth, there’ve been indications the Commonwealth will be willing to entertain negotiations in respect of claims for compensation.
I must say I am unaware what that is a reference to. Like it seems to me that may be a reference to discussions between the complainants and the lawyers for the High Court.
But, this is one of those very unique circumstances where the High Court is absolutely and ultimately responsible, as part of the separation of powers doctrine, for complaints and the nature of those complaints.”
At the same time Maurice Blackburn plans to approach the Human Rights Commission on behalf of Heydon’s alleged victims to start the ball rolling on an action under the Sex Discrimination Act.
A group of 14 female silks has asked the Office of the Legal Services Commissioner to investigate whether Heydon is a fit and proper type to to be a lawyer.
The ACT DPP, Shane Drumgold SC, wants the AFP to examine the reports of Heydon’s sexual harassments “to determine whether or not criminal charges should result”.
Should there be a prosecution it is unlikely that the High Court could entertain a final appeal or appeals arising from civil or misconduct findings. There are no provisions to import acting High Court judges to handle such an eventuality.
The NSW Supremes have announced that, not before time, finishing touches are being put to an “internal bespoke policy for judges and judicial staff working in judges chambers.
“The policy is designed to give effect to the underlying premise that all members of staff are entitled to respect and dignity and to a safe and secure workplace.”
Chief Justice Bathurst said on Tuesday (June 23) that since he was appointed in 2011 he has not heard of any sexual harassment complaints from within the court. He spoke too soon for by Thursday (June 25) The Australian had a front page story about Heydon sexually harassing the associate to Justice Guy Parker.
This was in 2018 when Heydon had a pass to wander freely though the Supreme Court and use the library. The associate, Dhanya Mani, had hoped that Parker would say something to Heydon when she told him in May 2018 what happened. It was only on Thursday (June 25), that Parker spoke to chief justice Tom Bathurst about Heydon’s sexual overtures.
The CJ has now asked the Judicial Commission to come up with a plan of action on how judges should handle allegations of misconduct – something that had never occurred to them before.
The NSW bar president Guv’nor Game urged members not to sexually harass, discriminate or bully anyone. He managed to include Heydon’s name in his statement, but said he was “constrained by circumstances from commenting on that particular case at all”.
Two days earlier, when the bar first responded to chief justice Susan Kiefel’s statement of Monday (June 22), the Guv’nor couldn’t bring himself to let the word “Heydon” sully his message.
Heydon no longer appears on the bar’s membership list and has been chiselled off the brass plate at the 8th floor of Selborne Chambers.
Meanwhile, some members of the profession still haven’t get the message. This tweet from Kate McClymont …
This makes my blood boil!
“This is how the system works. Most associates are pretty young women. They quite intentionally flirt with their judges, as having been associates significantly advances their careers. They chose to use their bodies to further their careers,” anon email— Kate McClymont (@Kate_McClymont) June 25, 2020
Courts, tribunals and judges are blowing the dust off old conduct policies and giving everything a quick work-over.
Rallying cries have been issued by the heads of federal courts and the AAT and much the same group statement emerged from the heads of jurisdiction in Western Australia.
It had long been assumed that judges don’t grope people while on the job and that this restraint is part of their DNA having been hatched in the laboratories of the bars or law firms. The Australian Institute of Judicial Administration’s guide to judicial conduct was last updated in 2017 and the words “sexual harassment” do not appear in it.
In other wrinkles, Jane Needham, former president of the NSW, in an opinion article in The Sydney Morning Herald (June 24) said:
“Luckily, I never needed to call upon any complaints process, but I would have had no idea about how to do so if required. It occurs to me now the only available route would have been to approach the chief justice, then Sir Laurence Street, as the person who had the ability to discuss personal conduct with judges. As a law student in my 20s, it was as good as having no option at all.”
What she was suggesting about Leg-Over Lorenzo can be left to the imagination.
The SMH/Age report of June 23 told the story of “a leading female member of the NSW bar who was invited by Heydon to his High Court chambers after she appeared before him in a special leave application.
She was acutely aware of “what he had in mind,” and ultimately made her escape. However, it raises the question of what was Heydon doing asking a lawyer for one of the parties to his chambers in the desperate hope of some private frisson, without including the other parties.
Did the special leave application succeed and what happened thereafter? That would be worth exploring to put any nagging doubts to bed.
We’ll keep updating as the compromising possibilities unfold.