Investigation Insights | Procedural fairness and the investigation into complaints of sexual harassment by former High Court Justice Dyson Heydon

Tanya Hunter
June 30, 2020

Investigations of sexual harassment complaints have again been in the news following the headlines about historic complaints of sexual harassment by former High Court Justice Dyson Heydon.

In announcing the findings of an internal investigation, current Chief Justice Susan Kiefel vowed to create a new sexual harassment policy for the staff of high court judges and expressed remorse and shame that such behaviour could have been allowed to take place at the highest levels of the law.

Subsequent reports alleged that the pattern of harassing conduct by Mr. Heydon was not confined to associates on the court, and the Attorney General is now looking into allegations that Mr Heydon inappropriately touched a colleague when he was the royal commissioner investigating trade unions.

The High Court has also invited 100 former associates to share their experiences with the Court, although the Court has said that this is not an inquiry into new or additional allegations.

Through his legal counsel, Mr Heydon has denied all allegations, and apologised for any inadvertent offense. His legal counsel also objected to the process, noting that Mr Heydon had not had opportunity to confront the complainants or to cross-examine them.

Procedural fairness of investigation questioned

Some commentators have noted that procedural fairness in workplace sexual harassment investigations does not give the respondent the right to cross-examine complainants.

Natural justice and procedural fairness are observed by ensuring that the investigation is conducted by an impartial investigator and that both parties are able to give their version of events  and that the respondent is able to address any information that may be relied upon in making findings.

Procedural fairness requires that the alleged perpetrator of sexual harassment has the opportunity to be made aware of and to respond to allegations that may result in any adverse findings made against them.

Although the investigation process may seem legalistic, it is not a court proceeding that allows an alleged perpetrator to cross-examine complainants. However, to be procedurally fair, the respondents MUST be allowed the opportunity to respond to the initial allegations and evidence that contradicts the respondent’s version of events.

Reports note that the Mr Heydon declined to respond to the allegations. The respondent is entitled to do so, but the lack of a response does not mean that the investigation is unfair.

The most an impartial investigation can do is provide the opportunity for all parties to provide their evidence. The respondents cannot later complain that they were not treated fairly or provided with natural justice if they decline to respond. The independent inquiry into Mr Heydon’s conduct appears to have been conducted by a respected and impartial investigator who followed natural justice principles.

The number of articles devoted to discussing Mr Heydon’s conduct and the broader issue of sexual harassment in the legal profession indicate that, as with many workplaces, the law is just beginning to seriously address issues of sexual harassment in a way that allows complainants to feel supported to come forward and feel confident that the behaviour will be addressed.

The Court’s invitation to former associates to comment on their experiences appears to be an attempt to address past behaviour and perhaps promote a restorative justice approach that allows victims of sexual harassment to find some resolution.

The Court’s decision to investigate historic complaints after Mr Heydon and the associates involved have left the Court, as well as the Chief Justice’s pledge to create a specific sexual harassment policy for judicial staff, indicates a new seriousness towards addressing this issue within the legal profession which is long overdue and is welcomed by Worklogic.

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