Supporters of the #metoo movement in New Zealand argue that gender discrimination and sexual harassment are rife in the legal profession. It’s more complicated than that, Queen’s Counsel Kristy McDonald thinks.

In March the University of Melbourne’s student society, Women in Commerce and Politics, featured Kristy McDonald QC as its “Woman of the Week”.

She was interviewed by Joanna Mao, a New Zealander studying for a Bachelor of Commerce at the University. Joanna is the current President of Women in Commerce and Politics. Through her search for inspiring female leaders for one of the student club’s publications called “Woman of the Week”, she approached Kristy McDonald QC, to learn more about her experiences in New Zealand’s legal sector. She answered some thought-provoking questions, giving her views and advice to young practitioners.

The New Zealand Law Society | Te Kāhui Ture o Aotearoa is publishing an edited version of the interview and writeup as submitted by Ms McDonald. The comments and observations are the personal views of Ms McDonald and publication does not imply endorsement of her comments by the Law Society.

Kristy was asked if she thinks there are distinct layers of patriarchy or misogyny embedded within the profession. And whether she had personally experienced such an environment in her career.

“This is a complex question,” she said. “Yes, of course I have witnessed and experienced bullying, discriminatory, patronising, overbearing and damaging behaviour – from women as well as men.

“When I was in my early years of practice, I, like most women, was subjected to fair amounts of sexual harassment and intimidation.

“When I was a young practitioner such behaviour was prevalent, in the universities and in the profession. When I was at university I was subjected to some appallingly sexist and intimidatory conduct from lecturers. Complaints fell on deaf ears in those days.

“Equally, senior women practitioners could be very hard on young women. I recall being told by members of a women lawyers’ association when I was first starting in practice that I could only join their association if I stopped wearing makeup and desisted from dressing to attract men! Hard to believe isn’t it. But it was the eighties.

“It goes without saying that brutish male behaviour, sexual misconduct or harassment or bullying within the profession are so obviously unacceptable they must be condemned.

“Unfortunately, even after many years, I still encounter overbearing behaviour and condescending attitudes from some men, as well as unpleasant and overly competitive behaviour from some women in the profession.

“‘Over talking’ and ‘mansplaining’ by men in meetings is a particular issue for women because it’s hard to deal with in the moment. Being talked over or talked down in a group setting – be it a meeting or around a board table – is very common. Strong responses are often viewed negatively: a strong woman advocate is often portrayed as ‘stroppy’ or ‘strident’. I’ve certainly been called those things, and ‘flinty’ and ‘aggressive’ as well. When a man acts that way he’s called ‘strong’, ‘powerful’, or ‘formidable.’

“It wasn’t many years ago that I chaired a board meeting where a male board member turned his chair to the wall and announced that he ‘refused to be chaired by a woman’. I simply let him sit for the entire meeting facing the wall and carried on.

“Women often doubt themselves and don’t ‘put their hand up’ to take opportunities, and many young women lawyers seem diffident about putting themselves forward. That doesn’t seem to be an issue for a lot of young men, regardless of their talent.

“Women of my generation had little if any real support from other women as young practitioners; there were few women doing the sort of work I did as a young lawyer. Criminal trial work, for instance, was largely a male domain; you couldn’t react to every sexist comment or you’d have been sidelined very quickly. You needed to learn what’s important and what’s not.

“Things have changed a great deal for the better; I would even argue that we need to take care nowadays that young women don’t become victims and lose their resilience or their sense of fun. Many seem to take themselves too seriously. It’s important to have a sense of proportion in the way you react to issues. Many men today often find themselves confused about how they should treat professional women. For instance, a man telling a woman she looks nice, or opening a door for her, in my view isn’t necessarily offensive or patronising. But a man talking a woman down in a meeting, being dismissive, or making sexist remarks in the workplace – that is not acceptable and should be rejected in a strong and measured way. It’s about knowing when to react and how to react.

“It’s easy to become preoccupied with these issues to your detriment; they can become all-consuming. Don’t lose your sense of humour. Sometimes you just have to take a breath and put up with it; at other times you need to take a stand. It’s a matter of balance and common sense.

“When I started out as a young Crown prosecutor I was an oddity; there were few, if any, women doing that kind of work – and it was hard work. I had to develop techniques to be strong and not to be too affected by the trauma and heartache I witnessed. Attending crime scenes, working with children and deeply traumatised victims of crime, cross examining sex offenders, gang members, conmen and women. That sort of experience early in a career shapes you.”

What seems often to be lost in the debate about this issue and what Kristy feels is important to acknowledge is that she, like many other women, also experienced considerable support from men throughout their careers. “Sadly, often far more so than women,” Kristy said.

“There were three senior mentors who had a profound influence on my work. They were the late Justice Neil Williamson, the late Bruce Squire QC and the late Justice Sir John McGrath QC: all very principled men with generosity of spirit as well as wisdom and a sense of humour. Most importantly, they cared about people. I learnt a lot from them – not just the practice of law but about doing the right thing when that is sometimes difficult and learning how to observe and listen to people.

“I was lucky enough to be given some wonderful opportunities very early in my career. Those opportunities provided me with great experience and the skills to practise across a range of areas. Specialising too soon can be limiting; I advise young lawyers to seek wide experience when starting out – to get as much practical experience as you can as early as you can. It’s very hard to get the essential grounding later in your career. Many students are naturally attracted to the big corporate firms. Those firms do offer a lot, but they don’t necessarily provide the best grounding or the opportunity to get good practical experience with clients, witnesses, and courts.

“It’s important to take opportunities when they arise. Being positive, backing yourself, working hard – these are all crucial for success, as is recognising that others have experience you don’t have, and being ready to learn from them. Respect for seniority and valuing others’ experience really matters. I often hear junior lawyers who think they can run before they can walk, who think they can do everything but fail to respect the judgement and wisdom that comes from age and experience.

“If I were to offer any advice to young practitioners – women and men – it would be to say –

1. Get the basics – learn from others. Listen to others and respect experience.
2. Don’t try to run before you can walk.
3. Take and make the most of the opportunities that come your way.
4. Find techniques that allow you to deal with pressure and stress.
5. Law, as with many other professions, is about understanding life and people; I think that’s the single most important thing. In the end it’s about people: you can’t cross-examine a witness if you don’t know how to listen to them; you can’t advise a client if you have not lived and experienced enough of life to have developed judgement, sensitivity and empathy.
6. You don’t win cases or succeed relying on the law alone. It’s always about the facts and facts are about the people: what they do and why they do it.”

Kristy McDonald was admitted as a barrister and solicitor in February 1983 after graduating BA and LLB from the University of Otago. She began her career as a Crown prosecutor and has been involved since then in a wide range of public/administrative law, and civil and criminal litigation as well as providing strategic legal advice and involvement in inquiries and reviews and governance. She gained an LLM(Hons) from the University of Canterbury in 1987 and was appointed Queen’s Counsel in 1999. In 2019 she was appointed an Officer of the New Zealand Order of Merit in the New Year’s Honours List for services to the law and governance. The full interview can be found at www.wcpunimelb.com/woman-of-the-week