This piece is part four in a series. For the full series go here.
Justice Dyson Heydon has been at the very top of the law — but does that mean he is above the law?
One can only imagine the judge’s reaction to being asked to account to a mere creature of the bureaucracy for his behaviour. Vivienne Thom might have held the most senior and sensitive posts in the federal government but what is that against Heydon, the eminent jurist and legal scholar of international renown?
In the end Heydon didn’t cooperate with the inquiry into complaints of sexual harassment carried out by Thom and ordered by the Chief Justice of the High Court, Justice Susan Kiefel. Thom’s inquiries found that the six women who made complaints — and subjected themselves to the investigation process — were to be believed.
The personal toll of taking part in the inquiry will have been immense, as young women at the beginning of their careers were forced to bare their souls and relive scarring, life-changing experiences to a government investigator. Yet Heydon leveraged his decision not to be interviewed as a legal justification to negate the validity of the process, insisting — querulously — that only one side of the story had been heard.
He has never answered any questions publicly either. Hiding behind his legal team he simply refuses to comment on questions from the media, notwithstanding the extreme public interest in issues raised when a High Court justice is found to have brought the court into disrepute.
Heydon’s only comment has been via a lawyer’s statement provided to The Sydney Morning Herald in which he denied “emphatically” any allegation of sexual harassment or “any offence”.
The statement otherwise complained that he had been unable to confront the women or to cross-examine them. He quibbled with the status of the investigation, pointing out that it was conducted without having statutory powers of investigation and of administering affirmations or oaths.
Playing with words, Heydon attempted to reduce the finding to dust.
Yet everyone else knew exactly what Thom’s investigation meant. Labor said he should be stripped of his Order of Australia. The prime minister said it should be referred to the council of the Order of Australia for it to consider action.
And that’s where it has stopped.
The council — which advises the governor-general — very politely but consistently refuses to comment. The governor-general has failed to address it. Yarralumla has been silent as a tomb. On this issue it has elected to adopt the monarch’s privilege of declining to answer public criticism.
And the silence is complete. Crikey has contacted individual members of the council, past and present, only to be told that “the protocol” is for all questions to be answered by the governor-general’s office. The governor-general’s office then says it doesn’t comment on individual cases. Rinse, repeat.
There is a provision for cancelling honours. The regulations which govern the Order of Australia envisaged rightly that information may later emerge on a recipient which would justify removing the award. Call it the “if we knew then what we know now” clause.
Would Heydon be given an Order of Australia today, knowing what we know now? It would seem inconceivable. Yet there is no action.
The real power behind Australia’s honours system is Shane Stone AC QC. Stone has been chairman of the council of the Order of Australia since 2018, having been first appointed to the council as a community representative by then-prime minister Tony Abbott. He is a former president of the Liberal Party and has lately become the go-to flood and fire crisis nabob for Scott Morrison.
The chairman has previously enunciated what we might call the “Stone Doctrine” in the face of calls to strip awards from broadcaster Mike Carlton and social commentator Bettina Arndt.
Stone has said an individual needs to have been convicted of a crime or offence under the law, received a civil penalty under the law, or been subject to an adverse finding by a court, tribunal or other body exercising judicial or administrative power under the law and that the judicial process needs to be “exhausted”.
The definition serves a purpose by being clear and avoiding decisions on culture war grounds.
But in the Heydon case it comes up short. It fails to recognise the rigorous investigative process, the array of facts which have led to the findings against him, as well as the undeniable moral force of the case against Heydon.
In doing so it rewards the celebrated black letter lawyer with a black letter interpretation of justice and pretends that there is no social contract underpinning the credibility of the honours system.
And still Yarralumla persists in its silence, in effect continuing its endorsement of the judge over the women he harassed.
The “would we if we knew what we know now” clause seems to be conclusive and sufficient to me.
A legal system based on 20/20 hindsight – sounds functional to me.
Where there is smoke there is fire!! – if he was an honorable man, with integrity, he would throw himself on the sword!!
Before the malignity of GenZminus began manifesting via anti-social meeja in what they laughingly imagine is a real world, the Dianafication of the West was well underway – imagine how much worse and how much faster that would have occurred with farcebuch & taktik etc.
When emo (d)rools, reason has no space or foothold to even begin to make a case.
Whether it is Me3, or Ukraine, or Mars attacks, the Invasion of the Mind Snatchers seems complete – never mind the fact, feel the burn.
Still banging on about this? Call me when he has been charged and convicted in court (rather than the Kangaroo Court of Media and Public Opinion). Rule of Law? Innocent until proven guilty? Like it or not these are the basic tenets of our legal system.
If he is proven guilty then he should be treated accordingly to the full measure of the law and his Honours removed.
He has been found guilty as charged by a thorough investigation, and with he refused to cooperate for obvious reasons.
He may retain his AO, but his reputation is rightly in the toilet. Sadly, the honours system is also soiled by his repulsive behaviour.
He has not been found “Guilty as charged” under a court of law or do we not have those anymore? Do we just go straight to lynching? He is not (as yet) guilty as charged under the Law is my point. A “Special Investigation” is no more valid than a Police Investigation BTW. If he is charged and found guilty then he should lose his Honours but not before.
I see the Kangaroo Court of the Media and Public Opinion is alive and well.
Well this is odd. I agree with lexusaussie, at least up to a point. It is absolutely of the essence that, contrary to your rather wild assertion, Dyson has not been charged and not been found guilty of anything. Investigations cannot ever find anybody guilty of anything because that is entirely outside their remit and their powers. It is a constitutional impossibility.
But then I also disagree with lexusaussie and the current position of council of the Order of Australia. It is woefully inadequate, contrary to common sense and excessively limiting to insist that no adverse inference can ever be drawn about anyone’s character before a court pronounces it. The investigation by Vivienne Thom was credible and properly conducted. Dyson’s complaints that he had no opportunity to defend himself are far too cute given he refused every opportunity to appear at the investigation and respond to the questions raised about his conduct. The investigation made findings that persuade many, including me, that Dyson is not fit, by defects of character, to keep the honour he was given. That’s a separate matter.
It is a huge mistake to conflate judicial questions of guilt with different questions of moral character.
Given that the accusations and the desire to remove his Honours are based solely on the outcome of said Investigation (which causes his moral character to be judged), it’s quite logical to link the “removal” of said Honours to his Guilt or Innocence under the Law. You can’t have 50 cents each way Rat!
Whaaaaat??!! Reputational damage is completely different from criminal guilt (beyond all reasonable doubt). People in high places are resigning in disgrace all the time without even being charged of a criminal offence, let alone convicted (tele-evangelists caught in adultery, politicians and bureaucrats accused of corruption or conflict of interest, health practitioners having consensual sexual relationships with clients, etc). Given the way the ‘justice’ system protects the powerful and those with deep pockets, we can’t wait for it to convict powerful figures before we form evidence-based opinions about their moral character or reputation.
Do tell us more about “…evidence-based opinions…” which, as with ‘believing in’ climate change, is a contradiction in terms, never mind category error.
If there is evidence that water flows uphill it doesn’t matter what opinion someone holds to the contrary.
If you want to play semantics, you can call them ‘evidence-based judgements’ if that makes you happier.
But before getting too clever, you might want to brush up on your epistemology, especially the philosophy of science and jurisprudence. Neither science nor the legal system claim to deal in facts. Neither wait for 100% certainty before making a judgement, because that degree of certainty rarely exists in the real world, where a judgement needs to be made even though the evidence is contradictory.
Science uses evidence to establish hypotheses to a (usually) 95% probability. These hypotheses are only as good as the next new piece of contradictory evidence. Newtonian physics was once hailed as incontrovertible fact, but has since been highly qualified by conflicting hypotheses (relativity, quantum theory, string theory, etc). Science does not wait for 100% certainty before establishing a belief/theory.
The law uses evidence to arrive at a judgement that is either ‘beyond reasonable doubt’ (criminal law) or ‘on balance of probabilities’ (civil law). These judgements are usually subject to appeal with the presentation of new evidence or simply a correction of a faulty legal process. But the law does not wait for the evidence to be 100% consistent before making a judgement.
In this case, there is evidence that Heydon committed sexual harassment – accusations from many different women, including the six women who worked with him at the High Court, whose claims have been investigated and supported as credible by a quasi-legal inquiry. There is some evidence (Heydon’s denials) that he did not commit sexual harassment – this evidence is weaker because he, unlike his many accusers, refuses to be questioned.
So we have a choice. Do we believe Heydon or his accusers? I believe his accusers, because I believe their evidence is stronger than Heydon’s. You can choose to believe Heydon is innocent because all these women are making it up in some monolithic conspiracy. But to claim we can’t have an opinion until the evidence is 100% incontrovertible is an unrealistic cop-out which we don’t apply elsewhere.
To claim that ‘evidence-based opinions’ is a category error is reminiscent of the discredited school of logical positivism that I thought died out 60 years ago. Just because many opinions are not based on evidence does not invalidate the concept of ‘evidence-based opinions’.
By the way, I believe that water flows uphill through the water pipes of my house every day.
Your word salad is a good example of prolix verbosity failing at obscuring vacuity.
And no, the water in your pipes does not flow uphill – it is under pressure.
See that big tank on the local promontory?
If you can’t follow a line of argument longer than three lines, I guess it’s unfair to expect you to understand three-word concepts like ‘evidence-based opinions’.
Or even a single word like ‘flow’ – ‘to move along in a stream, as a liquid (or) the blood’ (Macquarie Dictionary).
I had this same debate with lexusaussie yesterday, but (s)he is quite incapable of understanding the difference between criminal guilt (beyond all reasonable doubt) and questions of moral character or ill-repute (balance of probabilities). Even politicians caught out in corruption or scandal can understand it, resigning even though they’ve not been convicted in a criminal court. But poor old lexus just can’t get it.
We’re not asking for Heydon to lose his freedom and be imprisoned. He’s been placed on a pedestal by being given a rare and very high honour. We’re just asking for him to be kicked off the pedestal he no longer deserves.
Despite your derisive comments, I am quite capable of understanding the difference, and I disagree with your premise as does Shane Stone AC QC:
“Stone has said an individual needs to have been convicted of a crime or offence under the law, received a civil penalty under the law, or been subject to an adverse finding by a court, tribunal or other body exercising judicial or administrative power under the law and that the judicial process needs to be “exhausted”. Innocent until proven guilty in a court of law, not a “Special Investigation” in other words.
I happen to agree with Stones position and don’t agree that they should ignore due process simply to satisfy Cancel Culture and Trial by Media is all.
No derisiveness intended – just not sure how you can claim to know the difference between criminality and abhorrent behaviour, and then conflate the two (arguing that the latter cannot exist without the former). I, Rat and Hardaker (and lots of other people) disagree with that and can see the many examples of abhorrent behaviour that is not necessarily criminal.
I have some history with the Law and truly abhorrent behavior is what is defined in Criminal Law. I would take a QC’s position over that of laymen and I never get caught up in mob mentalities on matters.
QC’s are experts in what the Law says. Justice, abhorrent behaviour and ill-repute are conceptually different from ‘the Law’ and criminality, although legal practitioners often have difficulty understanding this. Abortion and physician-assisted suicide used to be criminal acts under the law. Whether they’re abhorrent behaviour depends on your ethical system regardless of what the law says. Slavery and shredding a man’s back with 500 lashes were once perfectly legal. Did they become abhorrent only when laws were introduced to make them illegal?
Sorry, but I agree with Shane Stone AC QC on this one. I have a strong belief in due process whether you are the accuser or the accused and that everyone is entitled to their day in court whether it is a Criminal or Civil matter.
So you discount and ignore the testimony of all the women then?
So if I am a prominent morals campaigner, have an adulterous affair with your 17 year-old grand-daughter by promising her the world and then unceremoniously dump her, you think I should suffer no reputational damage because I have not had (and will never have) my day in court?
Phooey. Dyson has had due process. He has not had the process of a criminal trial because he has not been charged with a criminal offence. By demanding he should get that process you are insisting he get undue process.
The granting of an honour is a privilege and the regulations allow for that privilege to be withdrawn. Under the circumstances, that would be the right course of action both in the letter and spirit of the regulations and the honours system.