New procedures to deal with groping grievances … Outcry at the WA bar over the president’s ham-fisted message on sexual harassment … Female barristers incandescent … CJ drawn into the fracas … History of sex-pest judges in Perth … Shock at Dicey Heydon revelations … Grievance stewards … Janek Drevikovsky reports
Drum roll … it’s the Western Australian bar – or so believes the WA bartender-in-chief, Stephen Davies SC.
“No significant problem” of sexual harassment exists at the WA bar, president Davies wrote in a barrister-wide email that accompanied a new sexual harassment policy.
The email, described as a “total train crash” by one senior bar-member, has been condemned. There are reports that some female barristers will boycott the annual bar dinner on November 18 in protest.
“I don’t want to be offered up for some judge to leer at me,” one female barrister told Justinian.
According to an insider, CJ Peter Quinlan feels he has to heal the house divided, possibly with a speech at the bar dinner.
The WA bar ‘n’ grill started cooking up a sexual harassment, discrimination and bullying policy at the start of the year, under the direction of Francis Burt Chambers brief Elspeth Hensler.
Before then, there simply was no special grievance procedure in place.
The bar council was “prompted to hasten” the project along, Davies wrote, when Chief Justice Susan Kiefel lifted the veil on Dyson Heydon’s unattractive track record.
Unlike the High Court, however, the WA bar enjoyed a “standard of conduct” that is “to our credit”.
It was “intuitively correct”, Davies said, that the rates of harassment at the Bar would be low:
“[There is] a close correlation between power imbalance and the incidence of behaviours like sexual harassment and bullying.”
At the WA bar, power imbalances were unheard of, wrote the president:
“We are each sole practitioners, all of us running our own practices and financially independent of each other.”
“Institutional memory”, Davies said, proved that harassment rates were low:
“In the 20 years since I joined the WA Bar … there are only five matters [involving harassment] that came to my notice.”
“An important strategic goal of the WA Bar is to grow.”
In the rest of the email, the president tried his darnedest to sell the new grievance policy.
“Some have asked the question why, if there is no problem, we should have a procedure.”
The prez admitted that a lack of complaints didn’t prove there were no grievances. He understood that “material shifts in attitudes” made a policy like this necessary.
And, he concluded, if unwanted behaviours could happen in the High Court, they might happen here:
“We should remember that the events referred to in the chief justice’s statement emanate from the calm, refined, scholarly environment occupied by the intelligent, well educated, empowered men and women.”
The backlash was swift.
Patricia Cahill SC, of Francis Burt, replied in a mass-email of her own, calling the president’s missive “offensive”.
She lashed the WA bar for not introducing a grievance policy until now:
“It has allowed such behaviour to be normalised, it has silenced victims and it has rendered perpetrators unaccountable.”
Cahill said her “memories” of 16-years of bar life were very different from the president’s:
“As to sexual harassment, I remember members who will not stop inappropriately touching female colleagues, despite being repeatedly asked to stop. I remember any number of stories from new female members being asked inappropriate questions about their physical appearance, personal lives and relationships. I remember members who harass female instructors, physically, verbally or by requiring them to work or socialise after hours outside of chambers. I remember administrative staff, often very young and vulnerable, harassed by much older members. I remember any number of inappropriate comments, offensive ‘jokes’ and sexually charged insults at social functions. I could go on.
As to bullying, I remember the public humiliation at general meetings of those who dare to speak out in opposition to the status quo. I remember the marginalisation of those who do not play ball; excluded from presenting at CPDs, participation on committees, never consulted for their views. I remember the bad mouthing and casual defamation of those who represent a competitive threat. I remember the (currently very popular) technique of reversing the tables by accusing a member of bullying if they legitimately complain or remonstrate. I could go on.”
“Amongst members, there are clearly imbalances of power according to seniority, those who have influence over the allocation of work, appointments to silk or the bench and the like. The Bar operates on a strict hierarchical structure that reinforces this. We can’t even send fellow members an email without strictly observing the order of seniority in the address line.”
Clare Thompson, president of Women Lawyers WA, also a Francis Burt brief, added her voice to the email chain:
“There is no doubt in my mind that the utopia presented in the president’s email is not the experience of women, nor many men, working at the bar …
The procedure is a great move forward … however, the attitude displayed in the email [from Stephen Davies] yesterday is unfortunately several steps backwards.”
A week later, there was an amount of presidential back-tracking:
“An email from me … has caused offence to some members,” Davies wrote. “Offence is the very last thing anyone would want to precipitate.”
It was never Davies’ intention to assume that everyone’s experience at the bar was the same as his. Nor did he believe that if nothing was reported, nothing happened.
Nor did he want to deny the problems of the past, or to ask members to promote a false message externally.
Davies’ heart was “in it”, when it came to fighting sexual harassment:
“When I heard the news from the High Court, my shock was that a person of such intellect, experience and seniority who had been appointed to that office lacked the emotional intelligence to know that the conduct was wrong or the self disciple not to do it …
I thought the priority must be to stop the risk for the future.”
WA Bar grievance procedure
President WA Bar email to members
Response from Patricia Cahill SC
Response from Clare Thompson