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Dyson Heydon

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The Honourable
Dyson Heydon
KC
Justice of the High Court of Australia
In office
1 February 2003 – 28 February 2013
Nominated byJohn Howard
Appointed byPeter Hollingworth
Preceded byMary Gaudron
Succeeded byPatrick Keane
Personal details
Born(1943-03-01)1 March 1943(age 81)
Ottawa, Ontario,Canada
NationalityAustralian
Parent(s)Muriel Heydon (née Slater)
Sir Peter Heydon
Alma mater
OccupationBarrister, Judge, Academic

John Dyson HeydonKC(born 1 March 1943) is an Australian former judge and barrister who served on theHigh Court of Australiafrom 2003 to 2013 and theNew South Wales Court of Appealfrom 2000 to 2003, and previously served as Dean of theSydney Law School.He retired from the bench at the constitutionally-mandated age of 70 and went on to chair theRoyal Commission into Trade Union Governance and Corruptionbetween 2014 and 2015, an appointment that was politically controversial due to his avowed conservatism and connections with the governing conservative party.

In 2020, an independent investigation conducted for the High Court found that he had sexually harassed six femaleassociates.Further allegations were reported by theSydney Morning Herald.[1]

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Heydon was born inOttawa,Canada, to Muriel Naomi (née Slater) andPeter Richard Heydon(later Sir Peter). His father, a diplomat and public servant fromSydney,met his mother (a Canadian) while both were on the staff ofRichard Casey,theAustralian Ambassador to the United States.[2]Heydon was raised in Sydney, attending theShore School,before going on to receive aBAin history (with the University Medal) from theUniversity of Sydney,where he was a resident ofSt. Paul's College.He was then awarded aRhodes Scholarshipto attendUniversity College, Oxford,where he received anMAand aBCLand was awarded theVinerian Scholarship.[3]

In 1967, Heydon became a fellow ofKeble College, Oxfordand, after graduating in 1968, he began teaching at theUniversity of Ghanain 1969. In 1973 he returned to Australia and was admitted to theNew South Wales Bar Associationin 1973. At age 30, he became a professor of law at the University of Sydney, the youngest person to reach that position. Heydon was elected dean of theUniversity of Sydney Law Schoolin 1978, serving a one-year term. He left to become a barrister, working at Selborne Chambers, where his colleagues included future High Court colleagueWilliam Gummowand New South Wales Supreme Court judgeRoddy Meagher.[4]He was appointed aQueen's Counsel(QC) in 1987.[5]In 1999, theSupreme Court of NSWfound Heydon negligent in the advice he had given to theNRMAin 1994 concerning itsdemutualisation.The negligence ruling was overturned on appeal.[6][7]The appeal judgment set a precedent on professional negligence.[8]

In 1977, Heydon married Pamela Elizabeth Smith, with Gummow as the best man.[4]They had four children. Pamela Heydon died on 13 June 2017 at the age of 66.[9]

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Heydon is also a legal scholar.[10]His 1971 bookThe Restraint of Trade Doctrinecontinues in a fourth edition.[11]In 1975, he publishedCases and Materials on Equity,the ninth edition of which came out in 2019.[12]With SirJames Gobboand David Byrne, he co-authored the second Australian edition ofCross on Evidencein 1980 and became sole author of subsequent editions.[13]He has also taken over from his former colleague, at Sydney University and on the High Court, William Gummow as one of the editors of Meagher, Gummow and Lehane'sEquity: Doctrines and Remedies.[14][15]He is also a co-author ofJacobs' Law of Trusts in Australia.[16]In 2019 he publishedHeydon on Contract.[17]These are mainly doctrinal treatises, designed principally as information to assist practitioners in their advice and pleadings.[citation needed]

Judicial career

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Heydon was appointed a Justice of theCourt of Appealof theSupreme Court of New South Walesin 2000, and appointed a Justice of the High Court of Australia in February 2003.[18]His appointment to the High Court by theHoward governmentwas generally welcomed, and Attorney-GeneralDaryl Williamsnoted Heydon's strong work ethic.[4]There was some disapproval, however, because Heydon replaced the only female justice,Mary Gaudron,making the court then all-male, and because of his opposition to judicial activism.[19]

After his first full year on the bench, Heydon was noted for his close alignment in opinions with the Chief JusticeMurray Gleeson,as well as Justices Gummow andKenneth Hayne,in constitutional law cases. He reached the same outcome as the Chief Justice in all but one case and frequently wrote joint judgments with the latter pair.[20]

As he approached theconstitutionally mandatedretirement age of 70, Heydon's rate of dissent increased markedly, tripling to 47.6 percent from 2010 to 2011.[21]Because of this, as well as his tendency to write a separate opinion for each case (even where he agreed with other justices), he was described by some as "The Great Loner" of the court.[19]He was the sole dissenter inPlaintiff M70/2011 v Minister for Immigration and Citizenship,relating to theGillard government's "Malaysian solution"for asylum-seekers, and inWilliams v Commonwealth,relating to the federal government's funding of school chaplains. He also dissented in the case ofCharles Zentai(writing in favour of his extradition to Hungary), and in the challenge to the Australian government'splain tobacco packaginglegislation (writing in favour ofBritish American Tobacco).[22]

Judicial philosophy

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Heydon was known as a conservative judge, and spoke out against what he termed "judicial activism".[23]His publicly expressed views, set out while a senior New South Wales judge, criticised the evolution of the High Court under the two immediately preceding Chief Justices, SirAnthony Masonand SirGerard Brennan,[24]were described by contemporaneous commentators as a "job application"[25]for appointment to the High Court by the government of Liberal Party Prime MinisterJohn Howard.[18][26]Heydon did not join any majority decision in his last year on the High Court, and in a 2013 article in the EnglishLaw Quarterly Reviewargued that "compromise is alien to the process of doing justice according to law".[27][28][29][30]Legal academics have also noted several cases in which Heydon was the lone dissenter, starting his judgments with the words "I dissent", which was described by Gabrielle Appleby as "pugnacious and irrefutably terse".[31]Heydon's time on the High Court cemented his reputation as a leading "black-letter lawyer", meaning that he strictly followed the traditional interpretation of the law. On retiring from the High Court in 2013, he said he wore this reputation as a "badge of honour".[4]

Heydon tended to take a conservative approach to human rights. He commented that, "The odour of human rights sanctity is sweet and addictive. It is a comforting drug stronger thanpoppyormandragoraor all the drowsy syrups of the world ".[a][4]His judgments went against the continued expansion of theimplied freedom of political communication—notably inRowe v Electoral Commissioner,where, according toJames Allan,he "betrays real anger at where the majority judgments are taking constitutional interpretation" instead of Heydon's preference fororiginalism.[32]

Royal Commission into trade union governance and corruption

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Main article:Royal Commission into trade union governance and corruption

On 13 March 2014, Heydon was appointed to conduct a Royal Commission into trade union governance and corruption on the recommendation of theAbbott government.[33][34]

Heydon handed down the Commission's interim report in December 2014[35]and found that theConstruction, Forestry, Mining and Energy Union(CFMEU) acted in "wilful defiance of the law". Dyson recommended that criminal charges ofblackmailbe considered againstJohn Setka,the Secretary of CFMEU Victoria, along with charges against other senior CFMEU officials in Queensland and New South Wales for activities that included death threats, extortion, gross neglect, and other "serious criminal matters".[35][36]The Agereported that "Justice Heydon identified key concerns about the use and operation of union election slush funds... "[37]

He also recommended that fraud charges be considered against formerAustralian Workers Unionofficials for theiruse of a secret slush fundin the 1990s. One of the officials implicated was an ex-boyfriend ofJulia Gillard,a former Labor prime minister. As a lawyer, Gillard had assisted the union by providing legal advice to establish the slush fund. No charges were laid against Gillard, although Heydon agreed with counsel assisting Jeremy Stoljar's submission, that her conduct as a solicitor had been "questionable". The report recommended that charges be considered against seven past and presentHealth Services Unionofficials for their role in an alleged right of entry scam.[37]

In 2015, while the Royal Commission was still sitting, Heydon agreed to deliver the SirGarfield BarwickAddress, an event organised by a branch of theLiberal Party.He later withdrew, saying he had overlooked the political connection.[38]As part of his explanation, Heydon said that he did not use a computer and could not send or receive emails himself.[39]On 21 August, theACTU,AWU and CFMEU all made applications for Heydon to step down on the ground of "apprehended bias".[40][41]On 31 August, Heydon rejected the applications in detail, saying, "The mere fact that a person agrees to deliver a speech at a particular forum does not rationally establish that the person is sympathetic to, or endorses the views of, the organiser of that forum".[42][43]

Heydon submitted his final report to theGovernor-Generalon 28 December 2015, finding "widespread and deep-seated" misconduct by union officials in Australia. It referred 40 people and organisations to authorities, including police, Directors of Public Prosecution, the Australian Securities and Investments Commission and the Fair Work Commission, and it recommended the establishment of an independent body to investigate union records and finances.[44][35]Only one conviction resulted from the process, while five other union officials either had their charges dropped or had been found not guilty.[45]

Sexual harassment findings and allegations

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In June 2020, an investigation on behalf of theHigh Courtfound that Heydon had sexually harassed six femaleassociateswhile he was a member of the Court. TheChief Justice of Australia,Susan Kiefelapologised to the women on behalf of the Court, and announced new measures to protect judges' personal staff, and to improve the handling of complaints.[46]The same month, theSydney Morning Heraldpublished the results of its own investigation in which several women alleged that they had been sexually harassed by Heydon. The newspaper also said that "Mr Heydon's predatory behaviour was an 'open secret' in legal and judicial circles."[1][47][48]

Heydon denied the claims and apologised for any "inadvertent and unintended" offence.[49]He did not apply to renew his practising certificate with the New South Wales Bar Association upon its expiry on 30 June 2020.[50]

Three of the associates sought compensation from the Commonwealth and Heydon.[51]In February 2022 the Commonwealth Attorney-General[52]and the associates' lawyers[53]announced that the three had settled with the Commonwealth, with terms not to be disclosed (although some reports refer to a "six figure" amount). Neither announcement said whether the settlement dealt with the trio's claims against Heydon personally.[54][55]

On 14 October 2022, Heydon resigned from theOrder of Australia(having previously been appointed as a Companion).[56][57]

Footnotes

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  1. ^"Not poppy, nor mandragora, Nor all the drowsy syrups of the world" is a quotation from Shakespeare's playOthello,Act III, Scene 3.

References

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  1. ^abMcClymont, Kate; Maley, Jacqueline (22 June 2020)."High Court inquiry finds former justice Dyson Heydon sexually harassed associates".Sydney Morning Herald.Archivedfrom the original on 22 June 2020.Retrieved22 June2020.
  2. ^Nethercote, J.R. (1996),"Heydon, Sir Peter Richard (1913–1971)",Australian Dictionary of Biography,Australian National University,archivedfrom the original on 1 March 2014
  3. ^"NSW Rhodes Scholars 1904—2009".The University of Sydney. Archived fromthe originalon 10 October 2012.Retrieved6 March2012.
  4. ^abcdeMcClymont, Jacqueline Maley, Kate (26 June 2020)."Dyson's 'dirty deeds': the public v private face of 'sexual harasser'".The Age.Archivedfrom the original on 27 June 2020.Retrieved27 June2020.{{cite web}}:CS1 maint: multiple names: authors list (link)
  5. ^Richard Ackland."Judging Dyson Heydon"Archived25 September 2015 at theWayback Machine–The Saturday Paper,22 August 2015. Retrieved 26 August 2015.
  6. ^[2000] NSWCA 374(21 December 2000),Court of Appeal(NSW, Australia).
  7. ^Banham, Cynthia (18 September 2002)."Heydon appointed High Court judge".The Sydney Morning Herald.Australia.Archivedfrom the original on 24 September 2015.Retrieved18 August2015.
  8. ^Dal Pont, Gino (2017).Lawyer's Professional Responsibility(6th ed.). Law Book Co. pp. 180–184.
  9. ^"Death Notice: Pamela Elizabeth HEYDON".Sydney Morning Herald.Archivedfrom the original on 23 June 2020.Retrieved22 June2020.
  10. ^Transcript of the Ceremonial Swearing in of Heydon J[2003] HCATrans 562(11 February 2003).
  11. ^Heydon, J. D. (2018).The Restraint of Trade Doctrine(4 ed.). Chatswood, NSW: LexisNexis.ISBN9780409348347.Archivedfrom the original on 29 June 2020.Retrieved27 June2020.
  12. ^Heydon, J. D.; Leeming, Mark (2019).Cases and Materials on Equity and Trusts(9 ed.). Chatswood, NSW: LexisNexis.
  13. ^Heydon, J. D. (2019).Cross on Evidence(12 ed.). Chatswood, NSW: LexisNexis.ISBN9780409351903.Archivedfrom the original on 29 June 2020.Retrieved27 June2020.
  14. ^Heydon, J. D.; Leeming, M. J.; Turner, P.J. (2014).Meagher, Gummow & Lehane's Equity: Doctrines & Remedies(5 ed.). Chatswood, NSW: LexisNexis.ISBN9780409332261.Archivedfrom the original on 27 June 2020.Retrieved27 June2020.
  15. ^"Book review: Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th Edition)"(PDF).Archived(PDF)from the original on 17 May 2017.Retrieved14 March2018.(2015 Autumn)Bar News: Journal of the NSW Bar Association63.
  16. ^Heydon, J. D.; Leeming, M. J. (2016).Jacobs' Law of Trusts in Australia(8 ed.). Chatswood, NSW: LexisNexis.ISBN9780409343502.Archivedfrom the original on 30 June 2020.Retrieved27 June2020.
  17. ^Heydon, J. D. (2019).Heydon on Contract.Pyrmont, NSW: Thomson Reuters.ISBN9780455500201.Archivedfrom the original on 27 June 2020.Retrieved27 June2020.
  18. ^ab"Justice Heydon appointed to High Court"(transcript).AM (ABC Radio).Australia. 18 December 2002.Archivedfrom the original on 24 February 2012.Retrieved11 February2010.
  19. ^abJohn Barron (19 August 2015)."Dyson Heydon: Who is the royal commissioner being urged to resign over Liberal links?"Archived23 August 2015 at theWayback Machine– ABC News. Retrieved 26 August 2015.
  20. ^Lynch, Andrew; Williams, George (2005)."The High Court on Constitutional Law: The 2004 Statistics".University of New South Wales Law Journal.28(1): 14.Archivedfrom the original on 29 June 2020.Retrieved27 June2020.
  21. ^"Justice Heydon triples his dissent rate for 2011".Timebase.Australia. 12 August 2011. Archived fromthe originalon 17 September 2011.Retrieved21 October2011.
  22. ^Michael Pelly (19 October 2012).Heydon The Great Loner pens his legacyArchived1 November 2012 at theWayback Machine–The Australian.Retrieved 26 August 2015.
  23. ^Appleby, Gabrielle; Roberts, Heather (21 August 2015)."Bias and the 'black-letter' judge: who is Dyson Heydon?".The Conversation.Australian National UniversityandUNSW Australia.Archivedfrom the original on 25 August 2015.Retrieved28 August2015.
  24. ^Heydon, Dyson (2003). "Judicial Activism: the Death of the Rule of Law".Quadrant(January–February): 9.Speech to aQuadrantdinner on 30 October 2002. Reprinted:Heydon, Dyson (2004)."Judicial Activism: the Death of the Rule of Law".Otago Law Review.10:493.Archivedfrom the original on 14 August 2019.Retrieved22 June2020.
  25. ^"The dicing of Heydon's job application".Justinian.16 February 2004.Archivedfrom the original on 26 March 2012.Retrieved3 September2011.
  26. ^Heydon, Justice Dyson (7 April 2003)."How judicial activism results in the death of the rule of law in Australia".Online Opinion.Archivedfrom the original on 14 May 2011.Retrieved11 February2010.
  27. ^Heydon, J. D. (2013). "Threats to Judicial Independence: The Enemy Within".Law Quarterly Review.129:205.
  28. ^"Push for judicial individualism admirable".UNSW Newsroom.Archivedfrom the original on 12 March 2016.Retrieved21 August2015.
  29. ^Dixon, Rosalind;Williams, George (29 March 2015).The High Court, the Constitution and Australian Politics.Cambridge University Press. p. 67.ISBN978-1-316-27678-5.Archivedfrom the original on 15 September 2020.Retrieved24 October2016.
  30. ^Woods, Robert (20 August 2015)."Dyson Heydon's extreme view of judicial independence on display".Sydney Morning Herald.Archivedfrom the original on 27 September 2015.Retrieved22 June2020.
  31. ^McIntyre, Joe (2016)."In Defence of Judicial Dissent".Adelaide Law Review.37(2): 431–459.Archivedfrom the original on 2 July 2020.Retrieved2 July2020.
  32. ^Allan, James (2012)."The Three 'Rs' of Recent Australian Judicial Activism: Roach, Rowe and (No)'Riginalism".Melbourne University Law Review.36(2): 743.Archivedfrom the original on 29 June 2020.Retrieved27 June2020.
  33. ^Abbott, Tony (Prime Minister);Abetz, Eric (Minister for Employment);Brandis, George (Attorney-General)(10 February 2014)."Royal Commission into trade union governance and corruption"(Press release). Canberra: Commonwealth of Australia. Archived fromthe originalon 11 February 2014.Retrieved10 February2014.
  34. ^"Letters Patent"(PDF).Royal Commission into trade union governance and corruption.13 March 2014. Archived fromthe original(PDF)on 12 March 2015.
  35. ^abc"Homepage".Royal Commission into Trade Union Governance and Corruption. Archived fromthe originalon 11 August 2015.Retrieved18 August2015.
  36. ^"Interim Report"(PDF).Royal Commission into Trade Union Governance and Corruption. December 2014. Archived fromthe original(PDF)on 12 March 2015.Retrieved18 August2015.
  37. ^abSchneiders, Ben; Patty, Anna (19 December 2014)."Royal commission takes aim at CFMEU, recommends charges against senior officials".The Age.Archivedfrom the original on 24 July 2015.Retrieved24 June2020.
  38. ^Whitbourn, Michaela (13 August 2015)."Sir Garfield Barwick address attracts a bevy of Liberal luminaries".Sydney Morning Herald.Archivedfrom the original on 14 August 2015.Retrieved13 August2015.
  39. ^Hunt, Elle (31 August 2015)."Dyson Heydon: I read emails only after they have been printed out for me".Guardian.Archivedfrom the original on 30 June 2020.Retrieved29 June2020.
  40. ^Benns, Matthew (22 August 2015)."Unions say Royal Commissioner Dyson Heydon should stand down due to being 'partisan against ALP'".Daily Telegraph.Australia.Archivedfrom the original on 19 September 2020.Retrieved28 August2015.
  41. ^Bourke, Latika (19 August 2015)."ACTU confirms it will move to have Dyson Heydon disqualified at the unions royal commission on Friday".Sydney Morning Herald.Archivedfrom the original on 23 August 2015.Retrieved28 August2015.
  42. ^Heydon, Dyson (31 August 2015)."Reasons for ruling on disqualification application"(PDF).Royal Commission into trade union governance and corruption.Archived fromthe original(PDF)on 31 August 2015.Retrieved31 August2015.
  43. ^Cox, Lisa; Patty, Anna; Whitbourn, Michaela (31 August 2015)."Trade Union Royal Commission: Dyson Heydon stays on as Commissioner".Sydney Morning Herald.Archivedfrom the original on 2 September 2015.Retrieved31 August2015.
  44. ^Keany, Francis (30 December 2015)."Trade union royal commission findings: Malcolm Turnbull says report shows widespread malpractice in unions".ABC News.Australia.Archivedfrom the original on 16 September 2020.
  45. ^Paul Karp (23 March 2016)."Fifth set of criminal charges from union royal commission taskforce dropped".Guardian Australia.Archivedfrom the original on 1 July 2020.Retrieved19 April2016.
  46. ^"Statement by the Hon Susan Kiefel AC, Chief Justice of the High Court of Australia"(PDF).High Court of Australia.22 June 2020.Archived(PDF)from the original on 22 June 2020.Retrieved22 June2020.
  47. ^Maley, Jacqueline; McClymont, Kate (24 June 2020)."'Dirty Dyson': former judge Heydon's nickname at Oxford amid fresh harassment claims ".Sydney Morning Herald.Archivedfrom the original on 24 June 2020.Retrieved24 June2020.
  48. ^Chrysanthos, Natassia (25 June 2020)."'The stakes are so high': Inside the two-year Heydon investigation ".Sydney Morning Herald.Archivedfrom the original on 26 June 2020.Retrieved25 June2020.
  49. ^Knaus, Christopher (22 June 2020)."Former high court justice Dyson Heydon sexually harassed staff, inquiry finds".The Guardian.Archivedfrom the original on 22 June 2020.Retrieved22 June2020.
  50. ^Maley, Jacqueline; McClymont, Kate (1 July 2020)."Heydon no longer a barrister, amid allegation he 'used his public standing' to lure woman".Sydney Morning Herald.Archivedfrom the original on 1 July 2020.Retrieved1 July2020.Contains a further harassment allegation.
  51. ^Estcourt, David (23 June 2020)."'Visceral fear': Lawyers threaten Heydon with Human Rights Commission ".Sydney Morning Herald.Archivedfrom the original on 24 June 2020.Retrieved23 June2020.
  52. ^"Settlement of claims made against former High Court Justice Dyson Heydon".Our ministers – Attorney-General's portfolio.Retrieved14 February2022.
  53. ^MauriceBlackburn.com.au."Sexual harassment victims of High Court Judge Dyson Heydon reach historic settlement with Morrison Government - Maurice Blackburn".www.mauriceblackburn.com.au.Retrieved14 February2022.
  54. ^Naomi Neilson (14 February 2022)."Dyson Heydon victims secure settlement".Lawyers Weekly.Momentum Media.Retrieved14 February2022.
  55. ^Maiden, Samantha (14 February 2022)."Judge's victims given secret six-figure payout".news.com.au.Retrieved14 February2022.
  56. ^"Order of Australia - Notice of Resignation - October 2022".Federal Register of Legislation (Commonwealth Gazette).25 November 2022.Retrieved25 November2022.
  57. ^Remeikis, Amy (25 November 2022)."Former high court judge Dyson Heydon resigns as member of the Order of Australia".The Guardian.Retrieved26 November2022.
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