Power, Gender Inequality and the Law - A Thread

The horrible details emerging of the conduct of former HCA justice Dyson Heydon are shocking: https://www.smh.com.au/national/high-court-inquiry-finds-former-justice-dyson-heydon-sexually-harassed-associates-20200622-p5550w.html

It is worth reading the statement released on the matter by Keifel CJ:

https://cdn.hcourt.gov.au/assets/news/Statement%20by%20Chief%20Justice%20Susan%20Kiefel%20AC.pdf

However, we must not think of these as isolated conduct. The foundational sin in the legal profession is that it remains a domain dependant upon personal relationships and hierarchical power. This leaves it exposed to embed gender inequality & abuse BUT also general exploitation

First up some facts. There remains extensive and unjustifiably gender imbalance in the law

In 2015,roughly 50% of solicitors were women yet women accounted for only 23% of all Australian barristers

https://www.lawsociety.com.au/advocacy-and-resources/advancement-of-women/gender-statistics

It gets much worse at the senior appellate level

In 2017 only 42 female barristers had speaking responsibility in oral argument in the HCA as opposed to 438 males

( @ReynoldsJDaniel and @ProfGWilliams ‘Gender Equality among Barristers before the High Court’ (2017) 91(6) ALJ 483

Female barrister were the lead counsel in only 7% of special leave applications in 2015

http://classic.austlii.edu.au/au/journals/SydLawRw/2019/2.html#fn118

Even female judges are treated differently. In the High Court, female judges are interrupted much more frequently and more substantively by counsel (mostly men remember...) than male judges:

https://law.unimelb.edu.au/__data/assets/pdf_file/0003/3280728/Loughland-432-Advance-v2.pdf

It it significant that the further up the hierarchy of legal practice one climbs, the more dependant upon personal relationships for referrals, briefs, appointments one becomes. And this is where the gender imbalance becomes particularly odious

1 in 2 female legal practitioner in Oz have been sexually harassed in the workplace.

50%

https://www.ibanet.org/harassment.aspx 

This issue is not a secret. See the comment by the fabulous @FiMcLeodSC: https://twitter.com/FiMcLeodSC/status/1275206567571275776

So 50% of women have been sexually abused.

Women are systemically underrepresented in the senior profession.

This is no coincidence. Men in positions in power are operating with a sense of practical immunity, because if the women speak out they know their career is dust

This is particularly tragic for the brilliant young women abused by Heydon. As

As @ellenbroad notes, these are some of the brightest legal graduates in the country. And they left the law as a result. How many times does such a tragedy occur without anyone hearing of it https://twitter.com/ellenbroad/status/1275000761294848000

But the true cancer in the profession is not gender inequality (as hideous as this is), but inherent power inequality. It is these power dynamics that enable the gender inequality, which is just one of its negative implications.

The exploitation of junior lawyers is endemic. It is not uncommon for graduates to be paid $50k/year and be expected to work 80+ hours a week. @juliettemm would regularly hit 100 hours a week at a major law firm as a junior lawyer

Billing in 6 min units encourages presentism, drives up costs, and leaves workers exposed to discretionary write-downs. In law there is always more work that could be justifiably done

Not only do such practices disproportionally affect women, they embed a practice of patronage that continues throughout the profession. Promotions go to those willing to play this game

At the bar, success depends upon OPPORTUNITY as much as ABILITY - who gets the brief is not necessarily who is best, but who you know.

Fixing the visible injustices of gender inequality, and the (often invisible) injustices of sexual abuse will not be possible without addressing the underlying power imbalances in the structural design of the legal profession.

Addressing these issues will lead to a fairer, more equal and safer profession for all.

It is also likely to create a system that is cheaper and more accessible for the public, and merit will become the criterion of success.

I don't know how we get there. This whole Heydon thing has left me angry, and I have so much to process. But we have to remember that this is not about one person. It is about a system, and that system is currently operating to impoverish us all