Barrister on Four Corners' Christian Porter episode loses Victorian Bar Council seat

Kathleen Foley had described attorney general as ‘misogynist’ but observers say her election loss had more to do with larger pushback against progressives

Kathleen Foley, a barrister who described attorney general Christian Porter as a ‘misogynist’ in a Four Corners episode on Monday night has lost her seat on the Victorian Bar Council as part of what observers say was a wider pushback against progressives.
Kathleen Foley, a barrister who described attorney general Christian Porter as a ‘misogynist’ in a Four Corners episode on Monday night has lost her seat on the Victorian Bar Council as part of what observers say was a wider pushback against progressives. Photograph: ABC News / 4 Corners
Kathleen Foley, a barrister who described attorney general Christian Porter as a ‘misogynist’ in a Four Corners episode on Monday night has lost her seat on the Victorian Bar Council as part of what observers say was a wider pushback against progressives. Photograph: ABC News / 4 Corners

First published on Wed 11 Nov 2020 20.31 EST

A Melbourne barrister who described Christian Porter as “misogynist” has lost her bid for re-election to the Victorian Bar Council.

Kathleen Foley spoke out against Australia’s attorney general as part of an ABC Four Corners report alleging cultural problems inside Australian politics.

Foley studied at the University of Western Australia with Porter and later worked as a WA state solicitor when Porter was a crown prosecutor in the same state. She was scathing in her assessment of what she said she witnessed of his behaviour over that time.

On Wednesday the Victorian bar published the results of its council election, showing that Foley and 15 other reformist barristers had been removed from the council, including the sitting president, Wendy Harris QC.

Sources from the Victorian bar say it was highly unlikely the Four Corners report was the cause of her election defeat, as the program aired on day 13 of a two-week voting process. Instead, they suggested this was part of a larger pushback against a progressive agenda on the council, with the more conservative “Vote for Change” ticket picking up 16 seats.

A source labelled this move “devastating” and said many at the bar were “gutted” by the election outcome.

“I genuinely don’t think [the vote and the Four Corners story] were connected but in terms of the sentiments of building a workplace where people feel included or not sexually harassed … I think those [debates] reared their ugly head,” they said.

“It’s actually about standing up and … having the courage to call this behaviour out. That is the biggest change we need to make.”

Vote for Change had raised concerns during the campaign about the use of council finances and whether it had advocated as strongly as possible for members during the pandemic. The ticket ran largely on a platform of fiscal responsibility with promises “to work with the courts towards the objective of a return to face-to-face hearings for all contested matters of substance as quickly as possible, with appropriate safeguards”.

Criticisms included the council using bar funds, which come from member subscription fees, to host a private dinner meeting with important figures in the Australian legal world and paying for two members to fly to London for a series of meetings; both of which the council’s treasurer said was within the regular scope of council spending.

Foley was critical about Porter’s treatment of women on the Four Corners report. “For all of that time I’ve known him to be someone who was, in my opinion, based on what I saw, deeply sexist and actually misogynist in his treatment of women, in the way he spoke about women,” she told the ABC.

Porter has “categorically rejected” these allegations.

“I have not spoken in any substantial way to … Ms Foley … for decades so I am surprised to hear them reflecting on my character so long after I knew them.”

Foley has also been outspoken about the need for reform in the legal profession, speaking out against the former high court justice Dyson Heydon, who has been accused of sexual harassment – which he denies – and criticising the former chief justice Murray Gleeson for not being more vocal about sexual harassment in the legal profession.

“The leaders of the profession must step up,” she wrote in the Australian Financial Review. “Those who have enjoyed their time at the very top – and who continue to enjoy the spoils of our profession – need to rethink the habits of a lifetime and ask whose interests are being served by continuing to adhere to a culture which is so plainly in need of fixing.

All 21 members of the Victorian Bar Council will now be from the Vote for Change ticket, with 16 members newly elected and five retaining their positions.

A significant portion of the criticism to the “Vote For Change” ticket concerned gender, with several newly elected council members declining to answer questions surrounding membership to men-only clubs such as the Melbourne Club.

In a questionnaire seen by Guardian Australia sent around to candidates, several male barristers declined to answer whether they were or had ever been members of such clubs.

A source from the bar also noted the council vote results disbanded a largely female leadership team.

“There was a massive gender element of voting this year at the bar, and the fact that we had Wendy Harris, as our female president and we had the CEO as a woman and there was a huge amount of gender-related criticism lobbed at them this year,” the source said.

All six members of the council second tier were previously women, and this has now reverted to a 50% gender split.

The former council was 62% female while the new council will be 38%, however, this is still an overrepresentation of the 31% female Victorian bar barrister membership.

In talking points distributed by former council member Gabi Crafti, speaking out against the Vote For Change ticket, issues of gender were not directly addressed.

Guardian Australia has approached the council’s former vice president and “Vote for Change” ticket member Simon Marks, QC, for comment.