‘It’s an industry-wide issue’: Top lawyer says ‘more people coming forward’ after Four Corners’ Seven investigation
For a number of years now, Joshua Bornstein has been representing “a number of women in the commercial TV news industry” pursuing claims of sexual harassment and unlawful discrimination.
The principal lawyer at Maurice Blackburn appeared on Four Corners’ recent investigation of Seven’s workplace culture, where he said the “brutal workplace culture” at the network was the worst he’s seen in 25 years.
In early June, Maurice Blackburn put out a call to women in the commercial television industry who have been affected by sexual harassment and unlawful discrimination: “We believe that there may be many other women who have been affected, either by witnessing such conduct or by experiencing it. If you have information that could assist our clients, or if you wish to get advice about your own experience, please contact us.”
Bornstein’s firm is currently acting for the woman who filed a formal complaint against Nine’s disgraced former news boss, Darren Wick, as well as in a matter against Network 10 — as he tells Mumbrella, this is an industry-wide issue.
Let’s start with the Four Corners report. At what point did you become involved in that story?
I’ve been representing a number of women in the commercial TV news industry for – it probably started several years ago.
But more recently, with issues at both Channel 9 and Channel 7 that increased, [I’ve been] acting for more women. Also my colleague in Sydney, Mia Pantechis, has also been representing a number [of women].
There was a discernible uptick, before Four Corners went to air, of people complaining — mainly women of course — complaining about mistreatment in those newsrooms.
I’m also acting in a matter against Network 10 as well.
You made a call out to the entire commercial TV industry recently. So, it’s not just Seven and Nine?
No, it’s my view is that it’s an industry-wide issue, rather than confined to one organisation.
Why do you think Ten’s managed to dodge the publicity this time?
I think they’ve had their fair share of issues over the years. And look, you can never predict when it’s going to blow up in one place or another. Sometimes they’re contained – and then there’s a volcanic eruption, and who knows if that’s going to happen at Ten as well?
What about since Four Corners aired, have you had other people reach out to you?
Yes. Other people who’ve either experienced the sorts of behaviour that was highlighted, or have information, have witnessed that sort of behaviour.
There’s been queries about whether we’re contemplating running a class action from some individuals as well. So yeah, a range of different responses, but certainly more people coming forward.
And are you contemplating a class action?
No. Class actions in the area of bullying or sexual harassment are not really a current feature of the legal landscape for all sorts of reasons, technical reasons and other reasons – technical legal complications. So, at the moment we’re just representing each individual with their own case.
Louise Milligan, lead investigator and host of the Four Corners report.
Right. I read a piece you wrote for The Guardian where you said the Australian Human Rights Commission should step up. What rights do they have, and what can they do to stop this?
So you may recall a lot of attention being paid to the Human Rights Commission running an inquiry called Respect at Work and then reporting to Government about the need for big changes. This is post-MeToo in Australia.
There’s been waves of different legislative changes, including one which was heralded as the most monumental change to the legal landscape, which was a new law which provided that all employers have a positive duty to take steps to prevent sexual harassment and discrimination occurring at the workplace.
So that was point one. And point two, the Human Rights Commission was given exclusive power to enforce it.
So one: There’s a new duty on employers to actually proactively go out and sort out the issue. And, two: the watchdog who can enforce that, if there’s a breach, is the Human Rights Commission. They can investigate. They can compel people to provide documents. They have a very broad range of powers.
There was a long lead up. There was a lot of publicity about how it was going to make a big difference. Companies were given 12 months to get their house in order before the duty was imposed and the duty came into effect. And since then, as far as I’m aware, the Human Rights Commission has not sought to enforce it against anybody.
We see watchdogs very active in workplace relations, or ASIC, or ACCC. Here, there’s clearly big problems in the commercial TV industry. And it’s puzzling to me why the watchdog, the Human Rights Commission, has been so absent from the issue.
Taylor Auerbach
And you mentioned in that same article that ‘commercial TV is ignoring its legal obligations.’ Have you heard from the Human Rights Commission since you published it?
Radio silence.
One of the reasons I raised that is because, if you require people to sign up to NDAs when they have problems about sexual harassment or bullying or discrimination, then arguably you’re covering up what’s going on. And covering up what’s going on seems to be at odds with the positive duty to clean it up.
In other words, is promulgating a whole lot of NDAs a breach of the duty to take proactive steps to prevent sexual harassment and discrimination in the workplace? Seems to me that’s a fundamental question that the Human Rights Commission should be investigating in this industry.
NDAs were cited on the Four Corners report as a big reason why Seven have been able to get away with this. Is there any kind of legal wriggle room when it comes to those? Or are they just as ironclad as it comes?
They’re pretty ironclad. I’m not aware of anyone successfully going to court to overturn a deed of settlement, because normally the NDA is found in a deed and there’s some settlement. It can be for a very modest sum of money if someone’s not properly advised, and an NDA is included, and essentially courts will regard those deals as valid, unless there is a proverbial gun to your head. Or a literal gun to your head.
It’s very hard to get an order setting aside a contract because that’s, in effect, what they are unless you really had no choice. But if you’re given an NDA, encouraged to give advice, have a think about it, or even unhappily sign it, you’re still bound by it. And there’s no time limit on them. It’s in perpetuity.
So, let’s assume a whole new leadership structure comes into place at these networks. What can they learn from this and what should they implement, to kill this rot?
The issues are very unusually deeply ingrained, and highly contestable about what the answer — or answers, are. I think you’ve just got to try lots of different things.
Sexual harassment often thrives in workplaces where there are men in their 50s and 60s at the top of the hierarchy, and women in their 20s and 30s at the bottom. So, if you can do anything to change the landscape and that sort of structure in the workplace, you’re making progress.
In these workplaces, there’s a strong suggestion that the conduct that’s complained of is, in some cases, common knowledge and if not rewarded, tolerated. Once you change that and say, ‘It’s not going to be rewarded, it’s going to be punished, it’s not going to be tolerated’, that starts to send a message throughout the workplace, and starts to change the culture.
And if you want to take another idea of mine, which is a bit more provocative, you require men who have kids in that workplace to take parental leave for at least six months.
Right. Why do you think that’s important?
Because I think that would change their perception of… it’ll change the nature of the workplace and it will also, I think, have a big impact on society and the way we view the roles of men and women: the way men view domestic work, child responsibilities, will bear on how they treat women in the workplace.
Yeah, that’s a good idea. It shouldn’t be provocative, should it?
It shouldn’t be. That’s my view and I may be wrong, but that’s my view.
And have you heard from either Seven or Nine since the Four Corners report?
There is communication, yes, through their lawyers.
Yeah, that’s what I imagined.
But I can’t really say very much because it’s confidential to each individual client and I can’t really say very much. I think it’s fair to say they know they’ve got a problem.
You mentioned in the Four Corners report that you think this is the worst that you’ve seen in, I think you said, 25 years?
Here’s why I say that. I mean, I see some very bad situations, but this is just uniquely bad because the women are often employed when they’re very young. They’re often similar. They present in a similar way. They’re often blonde and attractive, inexperienced, relying heavily on promises and sponsorship, quote unquote, of powerful men.
They work extremely long hours — I would argue illegal hours of work in breach of the Fair Work Act. They are often sent to sites of terrible trauma, you know, car accidents, disasters, shootings, decapitations. It’s where there’s a high risk of vicarious trauma. The bullying is vicious and unapologetic and overt. And then the sexual harassment and discrimination is just overt and very nasty. And it produces this cocktail that’s just incredibly harmful to mental health. And eating disorders are common. And women ending up suicidal is common. I just haven’t seen that combination in such a graphic, powerful way in other workplaces.
I’ve seen terrible stuff. But this is so many poisonous components combining together to produce something that’s very unusual, in my view. Vicious. The women fear if they stick their head up, they’ll never work again – and I think there’s a lot of substance to their fear.
Because these people are vicious. They will go out of their way to try and and stop you working in the industry again.
Amber Harrison
The whole Amber Harrison thing was really telling.
Yeah.
The fact that she was prevented from being in that broadcast spoke volumes.
Yeah. So that’s why I said that. I said it carefully after a lot of thought, because I do see workplaces that are terrible and industries that are terrible. By definition, I don’t see the good places in my job. But this combination is really awful.
Have any of the network threatened you with defamation or anything similar?
No.
Final question. Having dealt with all this, spoken to all these people, dealt with the networks — are you hopeful that things will change, or does it seem like it’s just a murky, mucky industry?
I think social change, political change, is a constant struggle. And I think we have made positive changes, in the last seven-to-ten years, particularly. But it’s apparent from this industry that the struggle never ends. You know, this is still, going back in other industries, 30 or 40 years. So it never ends.
It’s always a struggle, and it’s sometimes hard to see that you’re making progress.
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Nathan Jolly is the Features Editor at Mumbrella. He joined the team in July, 2023.
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Having worked in Broadcast Media from the early 80’s, I’d suggest that the “boys club” and predatory behaviour towards younger staff is not particularly new, the difference is that it seems that the highest levels of management seem to turn a blind eye until the unpleasant truth is revealed in other media.
There is also a whole level of questionable conduct with stripping land and other assets from TV stations, loading up networks with more recurrent expenditure and outsourcing traditional in house production and broadcasting operations to outside companies, at the cost of Australian jobs.
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