This piece is part three in a series. For the full series go here.
In the following letter to Crikey, Mark Leibler AC, pre-eminent tax lawyer and senior partner at Arnold Bloch Leibler, provides his view of the Order of Australia constitution, and his previous communications with the Council of the Order on the matter of Dyson Heydon’s honours.
I don’t view it as my business to arbitrate every call on who should and shouldn’t have their Order of Australia appointment cancelled. I most certainly do see it as my business to take a strong stand against sexual harassment and abuse of women in the legal profession.
Untested allegations of sexual harassment should not be sufficient to trigger the cancellation of an award.
In the case of Dyson Heydon, of course, an independent investigation commissioned by the High Court validated the allegations of six former associates of the judge that he had sexually harassed them.
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 to me. I said as much in a letter to Chief Justice Susan Kiefel, expressing my gratitude and support for her strong words and actions.
As a matter of principle, and in line with a clause in the terminations and cancellations ordinance of the Order’s constitution which allows for termination or cancellation where an individual has behaved or acted in a manner that has “brought disrepute on the Order”, I believed at the time (and still do) that a clear finding of serious sexual misconduct by an independent inquiry should be a sufficient basis for Dyson Heydon to be stripped of his status as a Companion of the Order of Australia.
I sought clarification from Government House and the response I received in September 2020, in the form of a statement by the chairman of the Council for the Order of Australia relating to two other potential cancellations, made it clear that the council did not share my interpretation of its constitution.
The statement included a specific reference to the clause from the terminations and cancellations ordinance, indicating that the council would not act to cancel an honour in the absence of a legal finding of a recipient’s guilt by a court or administrative tribunal.
The reference read as follows: “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.”
I do not agree with this interpretation of the constitution and maintain the view that Dyson Heydon can and should be divested of his honour. My conviction on this has only been reinforced by the attorney-general’s recent announcement that the Commonwealth government had reached legal settlements with the women Heydon harassed, and provided them with a formal apology.
It would be cool if after they strip him of his AV, they make him refund the Australian taxpayers the cost of the Royal Commission into trade unions.
Any compensation to be paid to victims should be deducted from the perpetrator’s superannuation entitlements. Why should the taxpayers foot the bill. All other citizens have consequences for transgressions, why not high office?
Given the High Court’s independent investigation validated six allegations of sexual harassment by Dyson Heydon , he MUST be divested of his AV. If Dyson Heydon had any integrity he would formally return his AC. Sadly those of us inflicted with narcissism are never wrong.
A lot down-votes here which seem to be defending Dirty Dyson. Maybe some of them would care to explain.
Agree Peter Schulz .What part of this creep’s past is worth defending . Are the down-voters of the same ilk?.
Yeah, I won’t be holding my breath waiting for them to defend the indefensible.
I’ve seen similar on other discussions. Perhaps someone is hacking and stacking the +/- system?
I suspect that most of them are objecting to mob rule and trial by media rather than defending Dyson against alleged offences not yet proven in a court of law. BTW. I haven’t down voted anything on this topic.
Fair point, lex, from a strictly legal point of view under a British legal system. Unfortunately, ‘beyond all reasonable doubt’ works to protect the powerful in sex assault cases where there are no other witnesses, so the average bush lawyer prefers ‘on balance of probabilities’, especially when there are so many allegations from so many different women over so many years in so many different contexts. It’s improbable that they’re all making it up.
It is necessary to go through the process. “Balance of probabilities” is not “beyond a reasonable doubt” with the burden of proof imposed on the State. Emotions run high and Rule of Law gets thrown to the side if the “Innocent until proven guilty” basis of our much vaunted legal system isn’t followed. The Media and Social Media enable Chairborne Rangers to whip up a public frenzy before the legal process is complete and actually threatens to derail the process. After all, neither Police Investigations nor “Special Investigations” have ever been wrong have they? So why not just use the Court of Public Opinion and go for “guilty until proven innocent”.
The legal process either needs to apply to everyone including “the powerful” and the “not so powerful” otherwise why bother to have it at all?
After all, Lindy Chamberlain was 100% Guilty, until she wasn’t.
No wonder so very few go through with reporting sexual abuse.
They should. To the Police and promptly. I don’t want to see anyone guilty of this get away with it but Due Process needs to be followed.
How is it trial by media and mob rule when an independent investigation commissioned by the High Court validated the allegations of six former associates of the judge that he had sexually harassed them. Further the Commonwealth paid settlements and issued an apology. So how is it a stitch up???
It’s trial by media and mob rule when the accused hasn’t had his or her day in court. Just because apologies are made and payments are made doesn’t mean much actually. These are just face saving gestures and go-away payments they make to avoid having to actually do something about it and prosecute someone.
Indeed, it seems to me that the Council of the Order of Australia have conveniently and deliberately determined its own definition of “ disrepute” in order to not actually do something about it, particularly because of Heydon’s position. It is a sad state of affairs when people in powerful positions can behave badly and get away with it.
It’s a pity the legal process does not apply equally to the powerful and the powerless, but that’s another issue.
I agree that ‘beyond all reasonable doubt’ is good for criminal matters where the accused is at risk of losing his/her freedom through imprisonment. But we’re not talking here about Heydon losing his freedom, but whether he should be allowed to keep a special honour that very few others receive. This is more akin to a civil matter, where ‘balance of probabilities’ applies, even in our British-based legal system. Mob rule and trial by media are different again – but they too are applied more to the powerless than the powerful.
You are not getting it. He hasn’t been convicted of a crime. As soon as he is, by all means he should lose his Honours but until then…..
You can’t have “Rule of Law” (but only when it suits you).
No, you’re not getting it. You’re applying the high standard of proof required in criminal cases to a non-criminal situation.
Every civil case in Australia is decided on balance of probabilities – which is a lower standard of proof than what is required in criminal law. Or is that not ‘Rule of Law’ to you?
The evidence is not strong enough to imprison Heydon under ‘beyond all reasonable doubt’, but it is strong enough (according to the independent investigation of the High Court) to consider him a person of Ill-repute who should be stripped of his AC. Even politicians resign after a scandal that would not result in a criminal conviction.
Heydon was placed on a pedestal when he was given his AC. All we’re doing now is kicking him off the reputational pedestal he does not deserve – nothing to do with criminal law.
So the allegations are not a criminal matter yet he is decried in public with no actual valid formal constitutionally acceptable legal process to either confirm or otherwise that his actions were unlawful and therefore abhorrent to society?
As stated in the article “the law prescribes behaviours, and expressions, which are abhorrent to society and therefore uses law as the threshold for termination and cancelation” which is the Benchmark or it is indeed a Kangaroo Court of the Media and Public Opinion. Let’s just go straight to lynching shall we? The role of a Judge means that legal decisions can be quite unpopular as they can, and do, impact others in similar situations negatively. If what Vacuum Heydon has allegedly done isn’t a crime, then the law needs to be adjusted.
We are all arguing for an ICAC with teeth to be applied to our Politicians yet we are quite happy to believe that a High Court Judge is guilty of a “no-crime”, without due process, and that we should remove his Honours yet not prosecute him? Even the outcome of an ICAC investigation has to follow the legal process and prove their “findings”.
Removal of his “Honours” without a definitive “Guilty” verdict will do nothing to restore the reputation of the High Court or the OA. It is quite meaningless and nothing more than Cancel Culture.
I’m all in favour of him receiving a suitable criminal penalty and his “Honours” removed if proven guilty but if the case against him is that weak….
‘Unlawful’ and ‘abhorrent’ are two circles of a Venn diagram – sometimes they overlap, often they don’t. You are treating them as conceptually identical, ie. it can’t be abhorrent if it’s not (proven to be) unlawful. That is incorrect. Much behaviour is abhorrent without necessarily being unlawful. Your example of ICAC’s supports this argument – ICAC’s were set up precisely because many examples of corruption are not necessarily illegal and would not be uncovered by criminal legal proceedings or principles.
Heydon’s reputation has not been trashed by ‘a kangaroo court of the media and public opinion’, but by a rigorous independent investigation set up by the High Court.
Again, an “Independent Investigation”, like a Police Investigation, is not Judge, Jury and Executioner but is presented in the Kangaroo Court of the Media and Social Media as such.
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.
Political connections and privilege will always prevail and this is a prime example. It has got nothing to do with your so called due process.
Call me after actual charges have been laid, his court case is finalised and he is found guilty. Far too much trial by media.
Rubbish. The Order of Australia is not a jury verdict – it is a reputation award, for outstanding service and achievement. It is inconceivable that Heydon would have been nominated by the OA assessors, had they had access to the Vivienne Thoms report, or indeed any honest admission from Heydon himself, of the welter of charges that he knew lay against him.
Once the story broke, Chief Justice Susan Kiefel did what little she could, to restore the devastated reputation of the High Court. By way of contrast, Governor-General Hurley and Awards Council Chair Stone prefer to get down in the gutter with Heydon. After all, they are all blokes, are they not, standing up against mere women?
For heavens sake, Heydon behaved so appallingly at the 2013 UC ball, to current ACT Liberal Opposition Leader Elizabeth Lee and other senior women present, that he had to be thrown out. What more evidence do you want?
No guilt or Innocence has been proven in a Court of law. Only allegations and a “Special Investigation” unsupported by an actual Guilty verdict. His reputation and these allegations/Special Investigation are expressly linked and they should be either proven or dismissed in Court. An Investigation is not a Judgement at law.
If he is found guilty in a court of law, then there is absolutely no doubt of his guilt and his reputational fall is therefore proven.
What are you frightened of? That he will be proven innocent?
The Kangaroo Court of the Media and Public Opinion cannot judge anyone if the actions alleged are actually in breach of the law. The continued publication and public debate of such matters in said Kangaroo Court can be determined to be prejudicial to a “defendent”.
The removal of his “Honours”, without a criminal conviction, is meaningless (meaningless anyway really). Either he committed a crime and is a confirmed sleaze bag or…..