The findings of sexual harassment against former judge Dyson Heydon by an independent investigation commissioned by the High Court have provoked a wave of new inquiries and proposals for reform.
One of the first out of the blocks was Attorney-General Christian Porter ordering a further investigation into allegations that Heydon engaged in further sexual harassment while presiding over the trade union royal commission in 2014.
On July 12, the Victorian government announced no fewer than two inquiries. The first is targeted at improving the workplace culture in Victoria’s courts and tribunals; the second will look at the policies and practices of law firms that provide legal services to the Victorian government.
Meanwhile, other courts and tribunals are promising bold changes to enhance the accountability of judges and tribunal members. There are many other voices adding calls for law reform and stronger workplace policies.
Others have called for a new public regulator to enforce sexual harassment laws, echoing a recommendation made following a national inquiry into sexual harassment by the Sex Discrimination Commissioner in May. The report criticised the existing legal system for imposing the burden of pursuing sexual harassment claims on traumatised individuals.
While much of this activity is well intentioned, it is likely to fail or at the very least not make much of a difference.
Laws against sexual harassment have been with us for 4O years. State-of-the-art workplace policies and procedures about sexual harassment were introduced into workplaces at least two decades ago. They have not stamped out sexual harassment and nor will they do so.
David Jones had one of the most exemplary policies when its then chief executive, Mark McInnes, departed after allegations of sex harassment, which he denied. Even more recently, AMP has been defending the indefensible after promoting a senior employee to a chief executive role shortly after he was accused of sexually harassing a female staff member. The victim of the sexual harassment left the company. AMP had terrific policies and processes when all this happened.
As American feminist legal scholar Professor Catharine MacKinnon has observed: “Just because something is legally prohibited doesn’t mean it stops. Maybe exceptional acts do, but not pervasive structural practices.”
Sexual harassment is not just a workplace problem. Sexual assaults happen outside the workplace. Addressing sexual harassment means recognising that it is a structural practice that reflects gender inequality.
While there is such pronounced gender inequality, there won’t be equal pay, domestic violence will continue to be a scourge and women will continue to be sexually harassed. Tackling gender inequality requires us to change the relationships between men and women both at work and outside work. Policies and laws that reduce gender inequality will reduce the incidence of sexual harassment.
The most direct route to achieve progress is to more equally distribute the responsibility for childcare between men and women.
Mandating six months of paternity leave for Australian fathers would make a quantum leap towards gender equality because it would reduce the disadvantages experienced by women in the workforce − including the substantial interruption to income and career advancement after childbirth. It would work because men would be required to act selflessly and lovingly in the nurturing of their infants. It would also change the way men and women collaborated with each other.
Enlightened paternity leave schemes exist in Sweden, Germany, Finland and Norway. It is no coincidence that these countries rank in the top 10 on the global index for gender equality. Australian men are entitled to two weeks of paternity leave − paid at the minimum wage. It’s pathetic but arguably an accurate reflection of what most men think of the prospect of spending six months caring for a baby.
Which brings me to the birth of my second child on April 28, 2006. On that day, I was having breakfast with my wife when her waters broke. We grabbed the essentials and made our way to the hospital.
As we yabbered away nervously in the ward where just four hours later my wife would give birth, I flipped through newspapers and magazines, landing on a profile of the then-chief justice of the High Court, Murray Gleeson. The second paragraph read: “Murray Gleeson was on his feet in court when his first child, Jacqueline, was born. He only learnt of the birth when Caltex, for whom he was appearing in the Federal Industrial Court, sent a telegram from its Sydney office. Nor was Gleeson anywhere to be found when his next three children − two daughters and one son − were born. He still has no idea how his wife, Robyn, got to the hospital to deliver their last child.”
Gleeson was the chief justice of the court during Dyson Heydon’s tenure and has maintained a stoic silence since the sexual harassment scandal was revealed. His oldest child is now a Federal Court judge. Perhaps when she was born it was not uncommon for fathers to continue working during childbirth. When my children were born, it was rare for fathers to take extended paternity leave. I did not buck that orthodoxy.
That orthodoxy must change but we should not underestimate how difficult such change will be. As #MeToo has demonstrated, real political change is not driven by company boardrooms or male ambassador programs. If you want change that redistributes power, you have to fight for it.
This article originally appeared in The Sydney Morning Herald.