- Anne Summers, ‘Her Rights at Work: The Political Persecution of Australia's First Female Prime Minister’, speech delivered at the 2012 Human Rights and Social Justice Lecture Series, University of Newcastle, 31 August 2012. See also Gillian Guthrie, ‘Put a Stop Now to Mother of All Insults' Sydney Morning Herald, 6 March 2012, www.smh.com.au/federal-politics/society-and-culture/put-a-stop-now-to-mother-of-all-insults-20120305–1ue69.html.
- See Sex Discrimination Act 1984 (Cth), ss 5 and 14.
- For example, during the time she was in office, she endured highly offensive sexist attacks from the Opposition, such as her inclusion on a mock menu for a Liberal party fundraiser as the dish: ‘Julia Gillard Fried Quail— Small breasts, huge thighs and a big red box’. See Emma Griffths, ‘Former Prime Minister Julia Gillard Says Sexist Attacks Filled Her with “Murderous Rage”’, ABC Net News, 30 September 2013, www.abc.net.au/news/2013-09-30/julia-gillard-opera-house-anne-summers-sexist-attacks/4989210. The Prime Minister also found herself the subject of vulgar sexist cartoons on social media and was characterised on the front lawn of her workplace as a ‘witch’ and a ‘politician's bitch’. That characterisation was given wide coverage on mainstream media news and delivered with the imprimatur and authority of the Opposition Leader and a number of his front bench Opposition Members speaking in front of the offensive placards. See Judith Brett, ‘They Had It Coming’ (2012) 84 The Monthly 11, 12. The Prime Minister was also consistently portrayed in the tabloid press, particularly the Murdoch press, as an emasculative and unprincipled female power. See eg Andrew Bolt, ‘Prime Minister Julie Gillard is a Woman of No Principle’ Herald Sun, 11 October 2012, www.heraldsun.com.au/archive/opinion/prime-minister-julia-gillard-is-a-woman-of-no-principle/story-e6frffx-1226493235180#mm-premium.
- Brett (n 3).
- Rhiannon Elston, ‘”Awesome” Julia Gillard Speech Goes Viral’, SBS, 26 August 2013, www.sbs.com.au/news/article/2012/10/10/awesome-julia-gillard-speech-goes-viral.
- Julia Baird in Amanda Lohrey, ‘A Matter of Context’ (2012) 84 The Monthly 8, 10.
- Michel Foucault, ‘Two Lectures' in Colin Gordon (ed), Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Pantheon, 1980) 78, 82.
- Caponecchia and Wyatt refer to an ‘escalating drama spiral’ of bullying behaviour which occurs when inappropriate behaviour is not addressed at an early stage. See House of Representatives Standing Committee of Education and Employment Report, Parliament of Australia, Workplace Bullying: We Just Want It To Stop, October 2012, 6 (hereinafter Workplace Bullying Report).
- Ibid, Recommendation 23, xxiv, requiring the lower standard of proof than in the criminal jurisdiction. See Carol Andrades, ‘Workplace Bullying: A New Right to Sue?’, RCT Lawyers, 15 January 2013, www.rct-law.com.au/blog/workplace-bullying-a-new-right-to-sue.html.
- Workplace Bullying Report, Recommendation 1, ix.
- On 27 June 2012, by way of the Fair Work Amendment Act 2013 (Cth) (Amendment Act). The Fair Work Commission is the national workplace relations tribunal. See Bill Shorten, Minister for Workplace Relations, ‘Tough Anti-Bullying Laws Pass House of Representatives', media release, 6 June 2013, www.billshorten.com.au/tough_anti_bullying_laws_pass_house_ofrepresentatives.
- The matter must be listed for consideration within 14 days: Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth), the legislative enactment of Workplace Bullying Report Recommendation 23.
- The Coalition Members' Dissenting Report in the Workplace Bullying Report failed to endorse the recommendation that the FWC be empowered to deal with bullying complaints. Furthermore, as part of the dealings of minority government, the commencement of the anti-bullying provisions was in any case delayed until 1 January 2014.
- Stephanie Quinn, ‘Bullying Pandemic in Law Firms', Lawyers Weekly 1 March 2013, www.lawyersweekly.com.au/news/bullyingpandemic-in-law-firms.
- See Brown v Maurice Blackburn Cashman [2012] VCC 647.
- Ibid, [294].
- See Ngaire Naffne, Law and the Sexes: Explorations in Feminist Jurisprudence (Allen & Unwin, 1990) 46.
- Evelyn M Field, FAPS, Submission No 58 to the House of Representatives Standing Committee on Education and Employment Inquiry into Workplace Bullying, 2 July 2012, 28.
- Margaret Thornton, ‘Sex Discrimination, Courts and Corporate Power’ (2008) 36(1) Federal Law Review 31, 39.
- See Brown v Maurice Blackburn Cashman (n 15) [37].
- Ibid, [43].
- For discussion of the myth of dispassionate investigation, see Alison Jaggar, ‘Love and Knowledge: Emotion in Feminist Epistemology’ in Susan Bordo and Alison Jaggar (eds), Gender/Body/Knowledge (Rutgers University Press, 1989) 145, 154–7.
- See Brown v Maurice Blackburn Cashman (n 15) [43].
- Ibid, [79].
- Ibid, [128].
- Ibid, [128]–[134].
- Margaret Davies argues that legal positivists ‘swoon’ to the formalism of legality. Furthermore, underpinning legal positivism is an assumption that law's authority is dependent upon public acceptance that juridical decision-making is based on a process of reasoning in which clearly defined legal rules are rationally applied to the facts. As such, the law is presented as a coherent and formal system, guaranteed internally through the logical interconnection of legal norms and externally through the rejection of non-systemic matter such as ethics, value, and ‘otherness'. See Margaret Davies, Asking the Law Question (Sweet & Maxwell and Law Book Co, 1994) 75.
- See Brown v Maurice Blackburn Cashman (n 15) [284].
- Ibid, [228].
- See Field (n 18) 28.
- For example, Herbert Smith Freehills, a top tier law firm in Melbourne, rejected allegations of age discrimination and bullying made by former employee solicitor Nicole Stransky, and settled the matter which was due to be heard by the Victorian Civil and Administrative Tribunal in June 2010. See ‘Former Employee Settles with Freehills' Lawyers Weekly, 26 March 2010, www.lawyersweekly.com.au/news/former-employee-settles-with-freehills.
- Victorian Equal Opportunity and Human Rights Commission (2012) Changing the Rules: The Experience of Female Lawyers in Victoria (2012), 15 (hereinafter Changing the Rules Report).
- Ibid, 6, 10, 12 and 15.
- Ibid, 4.
- Sara Charlesworth and Iain Campbell, Scoping Study for an Attrition Study of Victorian Lawyers, Report to the Victoria Law Foundation, July 2010, 5.
- Her narrative is one of the 50 interviews for the author's thesis.
- Michel Foucault, ‘Polemics, Politics and Problemizations: An Interview with Michel Foucault’ in Paul Rabinow (ed), The Foucault Reader (Penguin, 1980) 381.
- Irene Diamond and Lee Quinby, ‘Introduction’ in Irene Diamond and Lee Quinby (eds), Feminism and Foucault (Northeastern University Press, 1988) x.
- See Foucault (n 7) 82.
- Joanne Bagust, ‘Work Practices and Culture in Major Australian Law Firms' (PhD Thesis, La Trobe University, 2010).
- See Victorian Equal Opportunity and Human Rights Commission (n 32).
- Law Council of Australia, National Attrition and Re-Engagement Study Report (March 2014) (hereinafter NARS Report).
- Ibid, 6, 76.
- Pierre Bourdieu describes neoliberalism as a discourse grounded in a utopian theory of a pure and perfect market. It is made possible by the politics of financial deregulation. The transformative effects of neoliberalism are achieved through measures such as calling into question any and all collective structures that serve as an obstacle to the logic of the pure market in order to protect foreign corporations and their investments from nation states. See Pierre Bourdieu, ‘The Essence of Neoliberalism’ Le Monde Diplomatique, December 1998, http://mondediplo.com/1998/12/08bourdieu.
- Zymunt Bauman, ‘The Poor—And the Rest of Us' (1998) 12 Arena Journal 44, 46–47. For Bauman, the political economy of uncertainty ‘boils down essentially to the prohibition of politically established and guaranteed rules and regulations, and the disarming of the defensive institutions and associations which stood in the way of capital and finances becoming truly sans frontiers’.
- Noam Chomsky, Proft over People: Neoliberalism and Global Order (Seven Stories Press, 1999) 20.
- Second Circuit Judge Irving Kaufman in Marion Crain, ‘The Transformation of the Professional Workforce’ (2004) 79 Chicago-Kent Law Review 543, 571.
- N Kelk, G Luscombe, S Medlow and I Hickie, ‘Courting the Blues: Attitudes towards Depression in Australian Law Students and Lawyers', Brain and Mind Research Institute, University of Sydney, 2009, 2–3, www.google.com.au/#q=courting+the+blues+attitudes+towards+depression.
- M Heins et al in Francis Gibson, ‘Psychiatric Disability and the Practising Lawyer in Australia’ (2012) 20 Journal of Law and Medicine 391, 391.
- Interview with male partner (Melbourne, 28 November 2005).
- Ibid.
- Pseudonym (her husband).
- Interview with female practitioner (Melbourne, 4 February 2006).
- Interview with male partner (Melbourne, 6 February 2006).
- Karin Derkley, ‘Putting the Stress on Dealing with Depression’ [2006] Law Institute Journal 26, 26–27. See also Gibson (n 49) 392.
- Maryam Omari in Christopher Kendall, Report on Psychological Distress and Depression in the Legal Profession Law Society of Western Australia, March 2011, 7–8.
- Michael Clarebrough, Psychologist and Principal Counsellor for LawCare. See Derkley (n 55) 28.
- Here I take Judith Allen's use of the term ‘masculinist’ as an epistemological and political position dedicated to the assertion and maintenance of current sexual arrangements in the interests of men as a sex. Judith Allen ‘The Wild Ones: The Disavowal of Men in Criminology’ in Regina Graycar (ed), Dissenting Opinions: Feminist Explorations in Law and Society (Allen & Unwin, 1990) 21, 66.
- Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press, 1996) 17.
- Margaret Thornton, ‘Authority and Corporeality: The Conundrum for Women in Law’ (1998) VI(2) Feminist Legal Studies 147, 151.
- Ann C McGinley, ‘Creating Masculine Identities: Bullying and Harassment “Because of Sex”’ (2008) 79 University of Colorado Law Review 1152, 1164.
- Interview with female partner (Melbourne, 19 August 2005).
- Removed for reasons of confidentiality.
- Pseudonym.
- Interview with female solicitor (Melbourne, 23 January 2006).
- For Foucault, ‘normalisation’ is a system of finely gradated and measureable intervals in which individuals can be distributed around a norm which organises them and controls their distribution. The power of normalisation is a power ‘to qualify, measure, appraise and hierarchise its effects around the norm’. Michel Foucault in Paul Rabinow, ‘Introduction’ in Paul Rabinow (ed), The Foucault Reader (Penguin, 1984) 20.
- Pseudonym.
- Interview with female solicitor (Melbourne, 23 January 2006).
- Foucault argued that ‘Political anatomy’ is a ‘mechanics of power’. See Michel Foucault, Discipline and Punish: The Birth of the Prison, Alan Sheridan (trans) (Vintage Books, rev edn 1979) 138.
- Foucault, ibid, 139.
- Marc Galanter and William Henderson, ‘The Elastic Tournament: A Second Transformation of the Big Law Firm’ (2008) 60 Stanford Law Review 1867, 1906.
- See Joanne Bagust, ‘The Legal Profession and the Business and Law’ (2013) 35(1) Sydney Law Review 27 in which I argue that corporate lawyers are losing key elements of their professional identity in the impetus to maintain the client list and that the balance of power in the corporate legal sector is shifting from law firms to clients.
- Interview with male partner (Melbourne, 7 December 2005).
- Interview with female partner (Melbourne, 19 August 2005).
- Mark A Covaleski, Mark W Dirsmith, James B Helan and Sajay Samuel, ‘The Calculated and the Avowed: Techniques of Discipline and Struggles over Identity in Big Six Public Accounting Firms' (1998) 43(2) Administrative Science Quarterly 293.
- Ibid.
- Michel Foucault, ‘Human Nature: Justice versus Power’ in Fons Elders (ed), Refexive Water: The Basic Concerns of Mankind (Souvenir Press, 1974) 133, 171.
- See Rabinow (n 66) 7.
- His work focused on historically specific techniques of power which had divided the mad from the sane, the sick from the healthy and the criminal from the ‘good citizen’. See Michel Foucault, Madness and Civilization (Vintage Books, 1965); Michel Foucault, The Birth of the Clinic (Vintage Books, 1973); Michel Foucault, The History of Sexuality (Penguin, 1981).
- Michel Foucault, ‘The Subject and Power’ (1982) 8(4) Critical Inquiry 777, 778.
- See Rabinow (n 66) 3, 11.
- Ibid.
- Richard Collier, ‘”Be Smart, Be Successful, Be Yourself… “? Representations of the Training Contract and Trainee Solicitor in Advertising by Large Law Firms' (2005) 12(1) International Journal of the Legal Profession 51, 65–66.
- See Diamond and Quinby (n 38) xi.
- Foucault posits that ‘truth’ is linked in a circular relation to systems of power that produce and sustain it, and to effects of power which it induces and which extends it. As such it is a ‘regime of truth’. See Rabinow (n 66) 74.
- See Foucault (n 7) 94, 107.
- See Foucault (n 69) 136.
- Ibid, 201.
- Ibid, 201–3.
- See Covaleski et al (n 75) 297.
- Ibid, 294.
- Ibid, 301.
- Figures published in Mahlab's Salary Survey Private Practice and International 2013 reveal average top-tier partners' earnings in Melbourne 2013 to be $1,250,000 (sans bonuses and other Benefits). See Mahlab Recruitment, Survey 2013—Harder Faster Smarter: The New Competitive Regime, www.mahlab.com.au/legal-career.asp?id=148&t=survey-2013-private-practice-and-international&cid=43,16.
- Interview with male partner (Melbourne, 2 February 2006).
- Interview with male senior counsel (Melbourne, 24 November 2005).
- Interview with male senior associate (Melbourne 4 August 2005).
- See Covaleski et al (n 75) 297.
- Interview with female partner (Melbourne, 6 October 2005).
- Interview with male partner (Melbourne, 7 December 2005).
- Working hours of lawyers were referred to as ‘The Elephant in the Room’ by Australia's Sex Discrimination Commissioner in The Australian, 8 February 2008. See Iain Campbell, Jenny Malone and Sara Charlesworth, ‘“The Elephant in the Room”: Working-Time Patterns of Solicitors in Private Practice in Melbourne’ (Working Paper No 43, Centre for Employment and Labour Relations Law, University of Melbourne, May 2008), 3.
- Interview with male senior associate (Melbourne, 4 August 2005).
- Interview with male senior counsel (Melbourne, 24 November 2005).
- Foucault speaks of an ‘agonism’ as a relationship which is at the same time reciprocal incitation and struggle. See Michel Foucault, ‘Afterword: The Subject and Power’ in HL Dreyfus and P Rabinow (eds), Michel Foucault: Beyond Structuralism and Hermeneutics (University of Chicago Press, 1982) 221–2.
- See Davies (n 27) 229–54.
- See Foucault (n 7) 98.
- Interview with male senior associate (Melbourne, 4 August 2005).
- This research relied on interviews with 24 solicitors and four HR managers, predominantly from large law firms, as well as data from the Australian Bureau of Statistics and Victorian Women Lawyers. See Campbell et al (n 100).
- Nicola Berkovic, ‘Time for Change: Billable Hours Drive Young Solicitors Out of the Law’ The Australian, 8 February 2008.
- M Thornton and J Bagust, ‘The Gender Trap: Flexible Work in Corporate Legal Practice’ (2007) 45(4) Osgoode Hall Law Journal 773, 790. See also Hilary Sommerlad, ‘Women Solicitors in a Fractured Profession: Intersections of Gender and Professionalism in England and Wales' (2002) 9(3) International Journal of the Legal Profession 213, 218–22.
- Hilary Sommerlad and Peter Sanderson argue that the concept of commitment in legal practice is itself gendered. See Hilary Sommerlad and Peter Sanderson, Gender, Choice and Commitment (Dartmouth, 1998) 2, 215–23.
- Interview with male senior associate (Melbourne, 4 August 2005).
- Joseph Catanzariti, Law Council of Australia President, ‘Law Council Launches National Survey Aimed at Keeping Women in the Law’, media release 1320, 6 May 2013, 1.
- Interview with male partner (Melbourne, 20 October 2005).
- Interview with male senior counsel (Melbourne, 24 November 2005).
- Interview with male partner (Melbourne, 19 August 2005).
- Donna Haraway, Modest_Witness@Second_Millennium.FemaleMan_Meets_OncoMouse (Routledge, 1997) 198–9.
- Sandra Harding, ‘Rethinking Standpoint Epistemology: What is “Strong Objectivity”?’ in Linda Alcoff and Elizabeth Potter (eds), Feminist Epistemologies (Routledge, 1993) 49.
- Donna Haraway, ‘Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’ (1988) 14(3) Feminist Studies 581, 581.
- See Harding (n 117) 50.
- Margaret Thornton argues that neoliberalism displays a deep moral conservatism which is anti-feminist, anti-Aboriginal, anti-gay and lesbian rights and, generally, anti-progressive, in ‘Neoliberal Melancholia: The Case of Feminist Legal Scholarship’ (2004) 20 Australian Feminist Law Journal 7, 11.
- Christina Hughes, Key Concepts in Feminist Theory and Research (Sage, 2002) 160.
- Nancy CM Hartsock, The Feminist Standpoint Revisited and Other Essays (Westview Press, 1998) 236.
- Margaret Davies and Nan Seuffert, ‘Knowledge, Identity and the Politics of Law’ (2000) 11 Hastings Women's Law Journal 259, 271.
- See Harding (n 117) 50.
- Pseudonym used. ‘Jane’, a mature aged, junior woman lawyer was one of the lawyers interviewed for the author's doctoral thesis.
- High Distinction.
- Interview with female practitioner (Melbourne, 23 January 2006).
- By way of the Crimes Amendment (Bullying) Act 2011 (Vic), which broadened the definition of bullying. The new anti-bullying laws, colloquially known as ‘Brodie's Law’, were enacted by legislators in Victoria who were keen to be seen to be ‘tough on crime’ following the well-publicised suicide of a young Victorian waitress. In her employment at a Melbourne restaurant, Brodie had been subjected to persistent and vicious verbal and physical harassment. Although the perpetrators were successfully prosecuted and fined under the Occupational Health and Safety Act 2004 (Vic), the government quickly moved to assuage widespread public concern that workplace bullying demanded criminal sanction. See State Government of Victoria, Bullying: Brodie's Law (2013), www.justice.vic.gov.au/home/safer+communities/crime+prevention/bullying+-+brodies+law.
- See Victoria Legal Aid, Workplace Bullying and Discrimination Bullying (17 June 2013), www.legalaid.vic.gov.au/find-legal-answers/discrimination-harassment-and-bullying/workplace-bullying-and-discrimination.
- Helene Richards and Sheila Freeman, ‘A Firm Hand on Bullying’ [2007] Australian Law Management Journal (Spring) 10.
- See Quinn (n 14).
- Pseudonym used.
- Interview with female practitioner (Melbourne, 23 January 2006).
- See Associate Professor Maryam Omari, ‘Towards Dignity & Respect at Work: An Exploration of Work Behaviours in a Professional Environment’, Attachment A to Law Society of Western Australia, Submission No 130 to House of Representatives Standing Committee on Education and Employment, Parliament of Australia, Inquiry into Workplace Bullying, 17 July 2012, 16.
- Organisational tolerance and reward of bullying, particularly for senior members of the organisational hierarchy, has been identified as an important characteristic of bullying in recent Australian research into the role of power in workplace bullying. See Marie Hutchinson, Margaret H Vickers, Debra Jackson and Lesley Wilkes, ‘Bullying as Circuits of Power: An Australian Nursing Perspective’ (2010) 32(1) Administrative Theory & Praxis 25, 37.
- Pseudonym.
- Pseudonym.
- American research suggests that gender-related (sexist but not sexual) incivility is very much part of the gendered phenomenon of workplace bullying. Negative remarks about the competence of women, ‘including comments that devalue professional women or women in senior positions', are experienced by many women and they serve to denigrate and belittle all women in the workplace. See Denise Salin and Helge Hoel, ‘Workplace Bullying as a Gendered Phenomenon’ (2013) 28(3) Journal of Managerial Psychology 235, 243.
- Interview with female solicitor (Melbourne, 23 January 2006).
- See Gary Namie, ‘Workplace Bullying: Escalated Incivility’ [2003] Ivey Business Journal 2. Evidence adduced from a survey conducted by the Workplace Bullying and Trauma Institute, Bellingham, WA.
- Figures from the Workplace Bullying and Trauma Institute, Bellingham, WA, in Jacquelynne M Jordan, ‘Little Red Reasonable Woman and the Big Bad Bully: Expansion of Title VII and the Larger Problem of Workplace Abuse’ (2006–7) 13 William and Mary Journal of Women and the Law 621, 654.
- 73% of the lawyers who had responded to the Law Council of WA's survey were from private firms. See Omari (n 134) 10, 11.
- Jennifer L Pierce, Gender Trials: Emotional Lives in Contemporary Law Firms (University of California Press, 1995) 26.
- Evelyn M Field FAPS, author of Bully Busting: How to Help Children Deal with Teasing and Bullying, quoted in Michelle Harmer, ‘My Boss, the Bitch’ The Age, 26 February 2004, www.theage.com.au/articles/2004/02/25/1077676832616.html.
- The ‘Queen Bee’ syndrome was identified in 1970s research into women's promotion in the workplace. It was found that women who were successful in male-dominated industries were likely to oppose the rise of other women in their workplace. See Teresa Levitin, Robert P Quinn and Graham L Staines, Psychology Today (March 1973), 89–91 in Peggy Drexler, ‘The Tyranny of the Queen Bee’ Wall Street Journal, 1 March 2013, http://online.wsj.com/news/articles/SB10001424127887323884304578328271526080496.
- Pseudonyms used for women partners.
- Interview with female practitioner (Melbourne, 23 January 2006).
- See Omari (n 134) 16.
- Pseudonym.
- Interview with female practitioner (Melbourne 23 January 2006).
- See Omari (n 134) 21.
- Ibid, 21–22.
- See Bagust (n 72) 33.
- Interview with female practitioner (Melbourne, 23 January 2006).
- Interview with female practitioner (Melbourne, 23 January 2006).
- Hutchinson et al (n 135) 25, 33.
- See Foucault (n 7) 98.
- See Foucault (n 103) 221–2.
- Pseudonym (senior partner).
- Interview with female practitioner (Melbourne, 23 January 2006).
- See Hutchinson et al (n 135) 35.
- Interview with female practitioner (Melbourne, 23 January 2006).
- Interview with male senior associate (Melbourne, 20 October 2005).
- See Victorian Equal Opportunity and Human Rights Commission (n 32).
- See Law Council of Australia (n 42).
- Ibid, 76.
- See Foucault (n 69) 138.
- Irene Diamond and Lee Quinby, ‘American Feminism and the Language of Control’ in Irene Diamond and Lee Quinby (eds), Feminism and Foucault: Refections on Resistance (Northeastern University Press, 1988) 193, 196.
Legal Ethics
Volume 17, 2014 - Issue 2