While commending all branches of the profession for being “acutely aware” of the problem the judiciary has with misconduct, the Honourable Chief Justice Tom Bathurst said it still has a “significant problem” as more women are driven from law and more legal workplaces continue to display risk factors, such as power imbalances and men in more senior positions. 

In addressing a statistic that almost half of Australians do not trust judges, the NSW Chief Justice said that to the extent sexual harassment within the profession erodes trust in the judiciary, it also erodes trust in the judges who are appointed leaders. It is then only made worse by the culture of silence that exists in the judiciary. 

“The pervasiveness of unacceptable workplace behaviour in the profession has stayed hidden for far too long due to the power imbalances inherent in many legal workplaces, the stigma associated with reporting and the importance of reputation in the career of law,” CJ Bathurst said. “Many victims are understandably scared to come forward in fear of jeopardising their career. It takes real courage to do so.” 

He added that while many victims stay silent, the impacts of the behaviour are only more “pronounced”. He acknowledged that while men and women leave the law due to these kinds of misconduct, they are also driven away due to bias, discrimination and unequal opportunities. CJ Bathurst said all were “deeply troubling”. 

“These behaviours disempower, exclude and silence victims from their rightful place in the law. This undoubtedly builds deep mistrust in the legal profession and the judiciary in turn. Furthermore, apart from the impact of such behaviour on the reputation of the profession, and a result of the judiciary, it also deprives the profession of great talent. This in turn impacts diversity and quality of the judiciary,” he said.

CJ Bathurst said robust mechanisms are needed to “prevent and respond” to the misconduct and such policies must recognise the “vast power imbalances often present and exploited in such behaviour” and serve a range of purposes. 

“First, they serve the interest of complainants who have been impacted by improper behaviour. Secondly, it signals the standard of behaviour expected of all judges and their staff and therefore can prevent such behaviour in the first place. Most importantly, however, it demonstrates to the public that the judiciary is willing to meet proper standards and that actions will be taken where poor behaviour occurs,” he said.

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The Chief Justice added that the Judicial Commission of NSW continues to be invaluable in maintaining and fostering trust in the competency of judges. He said that the existence of an independent complaints channel and the transparency surrounding complaints will enhance the trust in the integrity of the process. 

“The judiciary does not operate in a vacuum; separate from the people we serve. We cannot be insulated from developments in public attitudes and values. We must review and adapt policies and procedures to ensure we not only meet, but exceed, changing societal standards,” CJ Bathurst said.