It seems impossible that the reputation of Dyson Heydon, retired High Court judge and one-time royal commissioner, will ever recover from the trashing it got this week. Politicians, public servants and others in public life - almost anyone indeed - should reflect not only on how what he is alleged to have done has ruined, almost in a minute, his standing and his character, but also on the virtual impossibility of any return to public esteem. Being found to be a persistent sexual harasser, not to mention a person who has abused his power and authority by importuning, groping and creeping out women, now has that sort of effect.
It is also virtually inevitable that his reputation for scholarship, particular expertise in various areas of the law, and holder of some torch as a pretend reincarnation of Sir Owen Dixon will also fall away. A new field of scholarship may well begin - by which every statement or pungent sentence in many wordy (and often impenetrable) judgments will be deconstructed for hidden proofs of sexism, general reactionary tendencies or flailing at the world's tendency to fail to take him very seriously. He will be judged and remembered primarily through the prism of his misbehaviour.
His humiliation may well be compounded by the virtual certainly of civil actions against him and the Commonwealth, whether from former associates (who were ultimately employees of the Commonwealth) or others, including a former president of the ACT Law Society who says she was unpleasantly groped by the judge some years ago. Apparently, there are contemporaneous records about many of these allegations. It is possible, moreover, that the Commonwealth could settle its part of such a case, leaving Heydon alone to disprove the allegations, at least on a balance of probabilities.
The ACT Director of Public Prosecutions, Shane Drumgold, has been unable to stand back. Although DPPs (particularly at the Commonwealth level) are traditionally very passive and in no wise partners of the police in criminal investigations, Drumgold has asked the ACT side of the AFP to investigate the allegations to see if any criminal charges can be laid.
Heydon has absolutely denied any predatory behaviour, even if he has also said that "if" any conduct of his caused offence, that result was inadvertent and unintended, and he apologises "for any offence caused". Apart from that statement, issued through his lawyers, he has kept his head well below the parapet, although a number of his admirers have tried on various generic defences for size.
One is that he was condemned by an administrative inquiry without the person conducting the inquiry, Dr Vivienne Thom, hearing a word from him. True, perhaps, in a very narrow sense, because the allegations made by former associates were put to him and his lawyers, and he and they chose not to put forward a different account of the facts, or to make any submissions about what the findings should be. The reference to an "administrative inquiry" may have been interpreted as a suggestion of an impromptu kangaroo court, conducted without any principles of procedure or natural justice by some minor bureaucrat ignorant of natural justice.
Given the number of allegations, and their essential similarity, he can hardly be surprised that the complainants were believed, first by the independent inquiry, and then by the judges of the High Court.
In fact Dr Thom, a former Inspector-General of Intelligence and Security, is an able, experienced and efficient investigator, probably with more actual experience of fact-finding than Heydon, who went straight to the top end of the Bar once he left the academy, and became a judge, first of the NSW Court of Appeal then of the High Court. Appellate work - his speciality - works off the papers, not witnesses. As, later, a royal commissioner, he sometimes intervened in the questioning of high-profile witnesses, such as Bill Shorten, by counsel assisting. But the report of the commission reads rather more as an adoption of submissions from his team than as a typical Heydon judgment.
If there were something obviously slipshod either about Dr Thom's methodology or her conclusions of fact, it would seem rather odd that it escaped the attention of all seven judges of the court, who read and adopted the report.
The Chief Justice, Susan Kiefel, said the court (collectively) made "a sincere apology to the women whose complaints were borne out".
"We know it would have been difficult to come forward", she said.
"Their accounts of their experiences at the time have been believed. I have appreciated the opportunity to talk with a number of the women about their experiences and to apologise to them in person."
A cynic might think that the court's statement might have compromised them in the event that any litigation - civil or criminal - comes before the court. If that occurs, it won't be a new situation for Heydon. When he was at the bar he gave confident legal advice to the NRMA about its demutualisation plans and how they might be affected by an upcoming High Court case. His explanation of the law, and his advice about how to proceed, followed fairly standard lines. How was he to know or anticipate that the High Court would turn the law on its head, rendering his advice wrong? Although barristers are (for no good reason) a species protected by the courts in respect of their advocacy and tactics in litigation, they do not enjoy the same immunities in respect of advice in chambers. After an action suing him for bad advice, he and his instructing solicitors were ordered to pay his erstwhile client $32 million in damages for negligence - for failing to see how the law might develop. Even more embarrassing was the fact that he had just been appointed to the NSW Court of Appeal - the very court to which he would have to appeal against the damages.
The NSW court system was able to cope with the challenge. It searched the highways and byways of the Australian legal system to find a panel of able judges who did not feel themselves overwhelmed by personal friendship with Heydon, or in awe of his reputation. In judgments of a length even Heydon could admire, they overturned the verdict.
As a cynical bystander, I have always been observant of words falling from the lips of judges that might one day be used against them. Thus, for example, Justice Marcus Einfeld, found guilty of perjury in a statutory declaration over a speeding charge, had his own words, from a case over which he had presided, quoted against him. These words were about the special wickedness of perjury, and reasons why it always required jail time. Likewise, Lionel Murphy faced the indignity of suggestions that one of his judgments, on the iniquity of conspiracy charges, could have been drafted with the plight of his "little mate" Morgan Ryan in mind.
While Heydon was presiding over the trade union royal commission, it emerged that he had accepted an invitation to give a Garfield Barwick lecture to a Liberal Party gathering. He said he had not known that it was being sponsored by the Liberals. Nevertheless, many of the commission's targets, who made little secret of their view that the whole royal commission was a political stitch-up, asked that he step down because of apprehended bias. Heydon examined his conscience over the weekend, gravely concluding that no reasonable person would perceive him to be biased. I doubt that, by the standards by which he judged himself, he would be claiming the present High Court had made itself incapable of standing in judgment on him.
During the week it has been suggested that Heydon was called "Dirty" Dyson because his wandering hands were an open scandal in legal circles. I have used the nickname myself over the years, but he got it first as a Sydney University law professor who continued to play rugby into his 40s, frequently leaving the field covered in mud.
Heydon was the especial darling of a coterie of Sydney lawyers and judges gathered around the personality and deeply conservative views of the late Roddy Meagher. Meagher, Heydon, and a number of other equity lawyers, including another future High Court judge, Bill Gummow, wrote a textbook on trusts which is of international renown - if partly because of the spirit with which perceived heresies and deviations are put to the sword. Heydon also found himself adopted by a number of deeply conservative bodies, and, on a famous occasion, gave a speech to a Quadrant dinner during which he viciously criticised two former High Court chief justices, Tony Mason and Gerard Brennan, as well as a number of other judges. The speech was well reported and was widely seen as an application for a current High Court vacancy. When cabinet came to consider the vacancy, the Attorney-General, Phillip Ruddock, had a candidate. But John Howard brushed him aside, declaring that the position was going to Heydon.
Deep conservatives such as Tony Abbott (whose Rhodes Scholarship was determined by a committee on which Heydon, himself a former Rhodes scholar, sat) were open in their reverence for Heydon as a great legal intellectual and perhaps one of the High Court's greatest ornaments.
They have it quite wrong. Heydon made almost no impact on the court. He attracted no disciples following his theories. No one talks about the brilliance of his expositions. Increasingly, he was in dissent, but not with eloquent appeals to the ages - as some of the great dissenting judgments are - but written in fury, with insults to other judges and nearly as many footnotes as actual words of text. His reasoning was complex; his tendency to complicate rather than clarify.
After he left the court, he gave a lecture at Oxford in which he blamed his lack of success on "judicial politics" - in particular the way in which his former colleague and friend, Gummow, circulated draft judgments early and met with other judges to negotiate agreement. Gummow could nearly always get four; by the time Heydon produced his draft, other judges were often committed.
It has been said this week that it was an open secret that he was a sex pest, but I never heard it, though I have heard a good deal of vicious gossip about judges, including Heydon. It is said that none of the present court had any idea until a formal complaint was made, and that of earlier judges, the only one to whom a complaint was made was to Michael McHugh, who promptly reported it to the then Chief Justice, Murray Gleeson, for action. We do not know what followed, if anything.
Yet as soon as the news of an investigation surfaced, senior women lawyers, including a former judge, spoke of being harassed by him. If it's a conspiracy, it is obviously of Deep State proportions, perhaps choreographed through the 5G network.
Moving in the lower circles of hell
If Dyson Heydon is guilty of the sexual harassment allegations made against him, most people would agree that he deserves what he gets. But others will wonder why he will get it (admittedly after years of having complainants terrified of making a complaint for fear of the consequences) when others are still getting away with it.
It is true that every fresh public shaming, as well as the activities of the #metoo movement, is changing the moral landscape. No doubt there are now some who are deterred from predatory abuse of power by fear of exposure. But even recent history suggests that there is a long way to go, and that many of the problems are not going to be resolved by having a quiet word with, or giving a formal warning to, persistent offenders. Sexual harassment is widely said to infect the whole legal establishment, Australian universities, police forces, the Defence Force, medicine, and a good many professional establishments. Few of these have institutional protections and procedures for victims - by definition almost invariably women with less power and influence in their environment than the predators. Even where the problem is systemic, a common pattern of administrators is to pretend that cases are one-off ones, to be dealt with in an ad hoc manner. Delay, denial, and affected helplessness often paralyse any demonstration that such conduct is unacceptable and will not be tolerated. If a legacy of the Heydon case was to shake up some institutional responses to harassment, or to allegations of harassment, it might be the best legacy Heydon has left the law.
I doubt that there will be an alternative legacy of changing practice on natural justice. Some of his supporters have suggested that he was condemned unheard, neglecting the fact that the person conducting the inquiry outlined the allegations to him and invited his response. He chose not to participate. Given the number of allegations, and their essential similarity, he can hardly be surprised that the complainants were believed, first by the independent inquiry, and then by the judges of the High Court.
In this, Heydon is not quite in the position of two American Supreme Court judges who have been the subject of sexual harassment allegations. In his case there has been an investigation, away from the political cauldron, and its findings are now hurdles he has to jump. By contrast, allegations of sexual harassment against Clarence Thomas and Brett Kavanaugh were raised in a highly partisan Senate environment - one incapable of coming to credible findings of fact, however believable the complainants appeared to be. Democrats were essentially affecting their horror, and their view that the allegations meant automatic disqualification. They might have thought that, but their first thought was that any old tree branch could be used to hang judges of a philosophical bent they did not like. By contrast, Republicans were less determined to find the truth than to use their numbers to approve the appointment of a candidate from "our side".
The #metoo movement has identified and disgraced any number of people, particularly in the media and entertainment industry, who were sexual predators, in some cases rapists. We have also seen the downfall of Roger Ailes and Bill O'Reilly from Fox News, where there appeared to be not only a corporate culture of sexual harassment, but a system which protected sexual harassers by defensive legal strategies, including settlements which required non-disclosure clauses. In the United States, a number of congressmen and senators have been forced to resign after the publication of allegations, and even here in Australia, we have seen a state leader of an opposition forced to quit parliament after he admitted unwelcome attentions to a journalist. By contrast, a prominent member of the Western Australian National Party made allegations against Barnaby Joyce, then leader of the federal National Party. He denied them, claiming that their airing was designed to put pressure on him to resign. In the event, he did resign on other grounds (his relationship with a staffer), but the harassment allegations seem to have gone into limbo.
Sexual harassment laws are not particularly focused at people in workplaces that have friendly relationships between staff, and, sometimes, folk given to projecting their sexuality. It is about unwelcome attention. Bill Clinton and John Kennedy in the United States, Bob Hawke perhaps in Australia, may have been adulterers and people who treated women shamefully, but it is not generally suggested that they forced themselves on others. I can think of actual others, on both sides of Australian politics, in the judiciary and the law, in universities, in hospitals and in newsrooms, where there have been real victims, the more deserving of our support because their capacity to protect themselves was diminished by gross inequalities of power, the predictable consequences if complaints were made, and the difficulty of keeping their head above water as perpetrators insist that incidents didn't happen, actions were misinterpreted, victims couldn't take a joke, or they were simply inventing or exaggerating because of their own mental problems.
Despite reforms over the past 50 years, a large majority of Australian women lack confidence in the capacity of police, prosecutors and judges to vindicate women who have been raped. Even more, I should think, doubt that making a stand will do much to create a better workplace, one in which there is no personal or corporate retaliation for standing up for oneself. No longer will any political, bureaucratic or corporate leader pretend otherwise than that harassment is unacceptable and will be dealt with. But women in a thousand workplaces - including in some of the highest reaches of heaven - have good reason to think these are mostly empty words.
- Jack Waterford is a former editor of The Canberra Times. email@example.com