This piece is part one in a series. For the full series go here.
Four fellow members of Australia’s highest civilian order — Companion of the Order of Australia — want former High Court judge Dyson Heydon’s appointment terminated.
Despite verified allegations of sexual harassment, Heydon has retained his AC.
Freestyle champion swimmer and former politician Dawn Fraser, tax lawyer Mark Leibler, former Qantas chairman Margaret Jackson and philosopher Philip Pettit, who each hold an AC, say they believe Heydon should not continue to hold the honour.
So far the Order of Australia honours secretariat has resisted calls to terminate Heydon’s appointment, given to only 35 people each year for “eminent achievement and merit of the highest degree for service to Australia or humanity at large”.
A stain on the nation
Heydon has faced numerous sexual harassment accusations, including the accounts of six women who worked as associates at the High Court during his tenure. Their allegations were independently verified by an inquiry commissioned by the High Court. One of these women, Alexandra Eggerking, a former associate of Heydon, has been vocal about her wish that he lose his AC.
In a statement to Crikey, Eggerking asked: “What does it say if Australia’s honours system allows those who use their positions of power to abuse and mistreat others to keep their awards? That is not a system of honour that earns my respect.”
Allegations against Heydon have emerged from various sources, including during his time as a visiting fellow at Oxford University, where he was nicknamed “Dirty Dyson”. Amid various sexual harassment accusations, Dyson’s visiting professorship was not renewed by the university.
It is axiomatic that members of the legal profession — especially judges — are expected to adhere to high standards both inside and outside the court. Behaving unethically undermines public confidence and is corrosive to the rule of law.
Fraser, Jackson, Pettit and Leibler all agreed Dyson should be stripped of his honour. He “brought discredit to the Australian awards by [his] appalling conduct towards women”, Jackson told Crikey.
Fraser offered her support to Crikey’s call to the Order of Australia, and Pettit said if his vote was relevant, he “would certainly support the expulsion of individuals with records of this kind from the Order of Australia”.
Leibler said that “learning of the behaviour of one of seven judges who presided over the institution that sits at the heart of our justice system was beyond appalling”.
Before responding to Crikey’s call, Leibler had made his own inquiries to the chairman of the Order of Australia.
In that vein, Pettit supports the formation of a committee to address the disrepute question in the case of Heydon, and “in the event of a positive finding, to make an appropriate recommendation to the governor-general”.
Leibler’s inquiry received the following response from the council of the Order of Australia:
In the council’s view, and as a general principle, for the order to be brought into disrepute a conviction, penalty or adverse finding must have occurred. In essence, the council recognises that the law prescribes behaviours, and expressions, which are abhorrent to society and therefore uses law as the threshold for termination and cancellation.
But Leibler disagrees with this interpretation, with the meaning of disrepute never formally defined in the Order of Australia constitution. Leibler’s full legal explanation in his own words can be read here.
Basis for termination
Broadly, the Order of Australia constitution’s terminations and cancellations ordinance gives six reasons why an award can be terminated. Each reason ultimately defers to the discretion of the governor-general, who is unofficially advised by the council of the Order of Australia.
An appointment can be terminated if the holder has “behaved or acted in a manner that has brought disrepute on the order” or if new information means “it would not have been desirable to make the appointment”.
It seems Heydon fits both categories.
Other reasons for termination include criminal convictions, civil penalties, adverse findings in court or administrative tribunals, and finding there was a false basis for the award. Leibler believes the High Court’s independent inquiry and compensation orders to Heydon’s victims should be considered sufficient to have brought disrepute to the order.
A call to reconsider
Heydon was made a Companion of the Order of Australia in 2004 for service to the law, his contribution to the legal profession, largely owing to his time as a judge of the High Court of Australia. Speaking on behalf of the court in a response to the independent report of Dr Vivienne Thom, Chief Justice Susan Kiefel said “we’re ashamed” that sexual harassment could be perpetrated in the High Court of Australia.
Heydon has let his practising certificate lapse and largely retreated from public life. But he continues to hold Australia’s highest honour.
That Dyson-Heydon should have his AC revoked should be entirely uncontroversial. It is not a matter of fine legal distinction.
This case against Dyson Heydon benefited from there being so many adult complainants who were highly educated, verbally fluent and (eventually) willing to speak out, and with the same story (and often being well connected). Heydon’s repeated behaviour over decades reveals a belief that younger female associates are sexually fair game, and are indeed askin’ for it. This comes as a package deal with someone who also believes that “Children sometimes behave in a way evil beyond their years. They may consent to sexual offences against themselves and then deny consent. They may completely invent sexual offences” (D. Heydon, Evidence: Cases and Materials. 2nd ed., 1984). Obviously the word “children” here is interchangeable with “women”. People mostly remain captives to views acquired in youth and in writing a textbook, Heydon has helped to mould (or confirm) views still be held by many eminent jurists on the reliability of complaints by women and especially by children. Hence children as complainants of sexual offences, who are typically poorly educated, hesitant, lacking in confidence, stumbling in speech and fearful, have the judicial deck stacked even more against them, up to and including the High Court.
He wrote that in 1984 and no one picked up on what he was meaning or hoping to achieve? My God. Pedophiles say things like that! Why is a judge allowed to publish this?
Given so many guilty men go free for all these sorts of crimes it is probably time to turn it around and sacrifice a few innocent men in order for many more women and children to have justice finally. It is NOT better for guilty men to go free than one lose his liberty. Only a man with a vested interest would believe that.We need a system that works.
.It is well accepted that very few women make false complaints so it shouldn’t be a biggy for anyone to deal with before it gets to court. I’ll vote for the politician who promises ( and keeps) a zero tolerance of violence against women and children. There is no excuse or defense. Only a very sick patriarchy would dream up defenses for men who do this to unarmed, defenseless women and children. Millions of women have been sexually assaulted in this country ( AIHW reports). Did anyone hear the PM express his outrage about this man, or is that reserved for female CEO’s? His conduct was well known to many. Why the delay with stripping him of the AC?. Maybe we should have one ( nay, thousands) called the CU ( Conduct Unbecoming) or the DD.
It looks like the taxpayer paid the settlement.Still no personal accountability. Another man protected. Anyone doubting this is a patriarchy?
Members of the Liberals Boy Club seldom receive appropriate punishment for their crimes or indiscretions. Just as in war the winner writes the history,on the way up or down there is always a get out of trouble option.
The current PM is a classic example. Why has he sacked from tourism Australia ? Why did the 100% Liberal party board that sacked him give him a $ 500.000 golden handshake ? Why was this sacking and pay out a confidential or secret settlement ? Why did he leave Tourism New Zealand?
One big Liberal Boys Club covering up each others indiscretions
Dyson was obviously chosen to chair various bodies for his political feelings .His previous history was allegedly known in legal circles. He has shown himself to be just another one of the Liberal boys club
I couldn’t give a fig.
Honors are an anachronism of the feudal era and have no part of modern society. The higher order variety are an attempt to polish turds of the most obnoxious kind.
Every year I look in the honors list and I’m left out. I’m so relieved about this. If I ever got one this would put me in the company of people like the egregious, now, quite late, late Richard Pratt; a womaniser and a breacher of the Trade Practices act. Pratt was appointed an Officer of the Order of Australia (AO) in 1985 by Bob Hawke, also of dubious character, also a womaniser and a man who brought neo-liberal economics to Australia.
For people don’t think Pratt was a turd:
On 2 November 2007, Pratt and the Visy group received an A$36 million fine, representing both the largest fine in Australian history and an estimated 0.75% of the Pratt fortune.[11][34][35] Federal Court of Australia judge Justice Heerey said Pratt and his senior executives were knowingly concerned in the cartel, which involved price fixing and market sharing.[34] “This is the worst cartel to come before the courts in 30-plus years”, Justice Heerey said. Additionally, customers of Visy initiated claims against Visy and Amcor, including a $120 million suit by Cadbury Schweppes against Amcor.[11]
Criminal prosecution for impropriety
On 19 June 2008, Pratt was charged with lying about his knowledge of a price-fixing scandal.[36] Pratt had been facing four separate charges under Section 5 of the Act, the penalty for each charge ranges from a fine of $2,200 to 12 months’ jail.[37]
On 27 April 2009, this criminal prosecution of Pratt for charges of impropriety (lying to the ACCC during its successful investigation into the Visy/Amcor price fixing scandal) were abandoned on account of his poor health and impending death. However, Commonwealth Prosecutor Mark Dean SC told the Federal Court the Commonwealth Director of Public Prosecutions (CDPP) believed the prosecution would have succeeded.[38] Pratt died the following day. (Wikipedia)
It’s interesting to note that the fine of $36 million was only 0.75% of his wealth. Sure sign that the crime alluded to here wasn’t his only one. In my whole lifetime as an engineer of 42 years in the workforce I earned around $4.0 million or about 8% of his fine.
I know it’s shocking to speak ill of the dead, but at least there can be no claim for libel. I know dead people can’t fight back that’s one of the benefits of telling the truth about them. Actually speaking ill of the dead is a lot less harmful than speaking ill of the living so I’m just going to keep on doing it.
And Pratt wasn’t the only one.
So Heydon fits in pretty well and should keep his gong as an indication to us ordinary folk to steer well clear of him.
Agree ++. The higher orders are just a case of mutual masturbation amongst the ruling classes.
Now that the full bench of the Federal Court has agreed that the Morrison government has no duty of care to future generations, I guess those eminent Justices will eventually get an AC for their services to the nation and the law too.
Maybe we wouldn’t be so pissed off if they weren’t so freakin’ rich in the first place?
I wonder how they got so freakin’ rich in the first place.
Would appear the only thing saving Dyson’s gong is the Liberal Party.