THE RISKS AND REWARDS OF BEING A HIGH COURT ASSOCIATE
The Canberra Times, 29 June 2020
There’s no job quite like being a High Court associate. One moment you’re sitting your last law exams. The next you’re working at the most powerful court in Australia, getting to see how the nation’s most brilliant minds argue and decide the toughest cases.
While being a High Court associate is exhilarating, it’s also unusual. Never in my life have I done a job that’s so intensely personal. Technically, you’re employed by the court. But practically, your employment rests on the judge who chose you. Associateships last a year, during which your role includes anything from writing a legal memorandum to fetching the judge’s lunch. You’re a valet, an apprentice, a researcher, a sounding board, an attendant, and a fact-checker. The job of a judge’s associate dates back centuries, and it has an old-world feel about it.
From mid-1996 to mid-1997, I was fortunate enough to work as a High Court associate to Michael Kirby. Kirby was, and is, an extraordinary human being, who treated me with kindness and respect, and taught me more about law than anyone else in the world.
But the very same aspects of the position that meant I could learn so much from Kirby also create the potential for the abuse of power by an unscrupulous judge. Reading the sickening accounts of how former High Court judge Dyson Heydon is said to have treated six of his female associates reminded me that the relationship between a judge and their associate is, by its nature, pretty peculiar.
In many workplaces, someone who doesn’t get on with their immediate boss can shift to another part of the organisation. Failing that, a dissatisfied worker can leave to go to a similar enterprise. That doesn’t apply at the High Court, where associates almost never shift between judges. Hardly anyone quits as a High Court associate, perhaps because there’s few better springboards into a legal career. One of my fellow associates was Rowena Orr QC, a leading inquisitor in the banking royal commission. Another was Justice James Edelman, who recently joined the High Court.
In researching the entry on ‘Associates’ for the Oxford Companion to the High Court of Australia, I found that in the early days of the High Court, some judges chose associates who were their own relatives, or children of fellow judges. But since the 1970s, the role became professionalised. Justices today get two associates, and choose bright young law graduates aged in their twenties. This adds another dimension to the power dynamic. Most High Court justices are aged in their sixties, so the age gap between judges and associates is almost four decades.
If a judge takes a dislike to one of their associates, they have ample power to play favourites. They might choose to assign the interesting work to their other associate, replacing fascinating conversations about undecided cases with dull footnote-checking. Someone has to fetch the coffee, push in the judge’s chair when the court sits, and moisturise the leather-bound law reports to prevent them cracking (thankfully, this only needs to be done once a year). Whether the judge chooses to involve an associate in any particular case is entirely at their discretion.
Like a bonded temporary migrant whose visa conditions depend on keeping their employer happy, the career of a judge’s associate can be shaped by how their judge decides to treat them. Keep on good terms, and the judge will be happy to write you a reference letter for overseas study, work at a law firm, or becoming a barrister. But not having a reference would raise major questions in the eyes of future employers. Perhaps this is one of the reasons why three of the women who said they were abused by Heydon chose to leave the profession.
In addressing the allegations against Heydon, Chief Justice Susan Kiefel has acted in an exemplary fashion, appointing former Inspector-General of Intelligence and Security Vivienne Thom to conduct an independent investigation. Following that report, Chief Justice Kiefel issued a statement that ‘their accounts of their experiences at the time have been believed’, and noting that the court was ashamed that the events occurred. Doubtless Chief Justice Kiefel and her colleagues will also be considering ways in which future sexual harassment can be prevented – by providing clear avenues of complaint, and perhaps even breaking down some of the silos that exist between judicial chambers.
The Heydon affair is a reminder that close employment relationships can be a double-edged sword. Many of us have learned a great deal from apprenticeships, traineeships, and mentorships. If you want to understand how a successful person does their job, there’s no substitute for working in close proximity to them, and seeing how they treat others, prioritise tasks, and solve problems. But with that comes the risk of abuse. Those dangers are not limited to the law, as Malcolm Turnbull’s ‘bonk ban’ demonstrated.
As institutions and individuals, we need to be alive to the complications of close working relationships and the power dynamics that underpin them. Ending sexual harassment isn’t just a matter of removing badly behaving men; it’s also about ensuring that we structure workplaces to be as safe as possible.
Andrew Leigh is a federal member of parliament, and a former High Court associate to Michael Kirby.
Authorised by Paul Erickson, ALP, Canberra.