Former High Court justice John Dyson Heydon AC QC presided
over the federal Royal Commission into Trade
Union Governance and Corruption.
This commission was in existence for six hundred and sixty-five
days from 13 March 2014 to 28 December 2015 and, there were a total of one hundred and eighty-nine hearings days in the capital cities of five states.
The cost to taxpayers was reported as in excess of $45.9 million. Heydon's own contract as a royal commissioner is estimated as worth between $1.5-$2 million of this.
Heydon’s “Introduction and Overview” to
this final report ran to one hundred and sixteen pages in which he used the
qualifying word “may” one hundred and twenty-two times, based on a word check count.
Throughout the report the language used
by Heydon was sometimes highly coloured and its pages contain a number of bold assertions that do not appear to be supported by hard fact.
After all that time and money, Heydon made
seventy-nine
law reform and/or 'political' recommendations, as well as referring two
unions, two companies, thirty-five union members and and six other individuals to either the Fair Work Commission, Australian Securities and Investments Commission, state industrial relations commissions, police, public prosecutors, or a number of other federal and state agencies, for further consideration.
With the Australian Bureau of Statistics recording 1.57 million persons who were members of a union in their main job in August 2014, only finding thirty-seven 'suspect' unionists (or 0.00235% of est. union population) is not what might be called a good look for this very expensive royal commission which examined over five hundred witnesses. Especially as its findings assert the existence of an endemic culture of corruption within unions.
As one of the previous referrals flowing from
the royal commission police taskforce resulted in a
prosecution which was dropped by the ACT Director of Public Prosecutions in
October 2015 with no evidence offered, one wonders how many of those final referrals
will also dwindle away into nothing.
So what manner of man is Dyson Heydon and how have others viewed him over time?
Commencing In December 2015 and working backwards to 1999, here is a small selection of opinions:
He joins a short line of
judges who have delivered similar decisions against unions such as the defunct
Builders Labourers Federation, the Painters and Dockers, and the Construction,
Forestry, Mining and Energy Union.
But only Mr Heydon
achieved the singular honour of shooting himself in the foot with his own royal
commission.
On August 31 this year,
he administered the kiss of life to himself to save his own royal commission.
For 18 days he'd been
drowning in a whirlpool of his own making. For much of that time Australia had
been wondering how the former High Court of Australia justice could save
himself and breathe life back into his Royal Commission into Trade Union
Governance and Corruption.
It emerged Mr Heydon had
agreed in April to deliver the 6th Sir Garfield Barwick Address, a fundraising
event organised by a branch of the Liberal Party, and had
"overlooked" the political aspect of his dining companions.
The matter bubbled away
while Mr Heydon continued to conduct his hearings.
On August 17, Fairfax
Media reported that Mr Heydon, a former Rhodes Scholar, was on the panel that
awarded then prime minister Tony Abbott his Rhodes scholarship.
Unions went ballistic.
Four days later the
ACTU, AWU and CFMEU all made applications in the commission for Mr Heydon to
step down.
His opponents saw it as
a question of propriety. Mr Heydon, and the government who appointed him, saw
it purely in legal terms.
Known as a loner with a
love for black letter law, an aversion to computers and an apparent fear of
emails, Mr Heydon, 72, served as a justice of the High Court of Australia
between 2003-2013 after being a justice of the NSW Court of Appeal.
Previously he'd been
dean of the Sydney Law School. He'd retired from the High Court at the
constitutionally mandated age of 70 and picked up the trade union royal
commission as a retirement gig.
The Sydney Morning Herald, 15 August 2015:
There is no doubt that
Heydon was and is a brilliant legal mind, with a very firm grip on the
applicable law. His distinguished legal and judicial career is credit to that.
Heydon’s legal
brilliance did not guarantee, however, that he was influential while on the
High Court. His approach was increasingly out of step with the court’s other
members, particularly in the areas of implied rights and limits on government
power, which he was reluctant to extend. His dissent rates would eventually
earn him the moniker the “Great
Dissenter”, and his frustration became increasingly evident in the tone of
his judgments.
As a judge, Heydon also
exhibited a particularly visible form of independence. Constitutional law
academics Andrew Lynch and George Williams have referred to
this as his pronounced “individualism”. By 2012, the year prior to his
retirement, Heydon wrote every one of his judgments alone, even when he joined
the result of the other justices.
Also in 2012, Heydon
delivered another
speech that caused a stir in the legal profession. It went part of the
way to explaining his individualism. He referred to what he thought was one of
the most dangerous threats to judicial independence: the pressure on judges to
participate in joint judgments and the elevation of consensus as a value over
individual intellectual integrity.
There is a degree of sad
irony that, as royal commissioner, Heydon has found himself steeped in
controversy alleged to be undermining public confidence in the integrity of the
justice system. Heydon prided himself throughout his judicial career – and
rightly so – on the robust independence and intellectual integrity he brought
to the role.
It is important to be
clear that the claim made against Heydon is one of apprehended bias only. The test
for apprehended bias is whether a “fair-minded lay observer” might
reasonably apprehend that Heydon’s impartiality has been compromised by his
conduct.
It might seem
incongruous for a member of the general public to understand why
Heydon is being asked to apply the test to himself. There is a whiff of
apprehended bias in the very idea.
It is true that this
practice accords with the ordinary
legal process for apprehended bias claims. A person against whom an
apprehended bias claim is made is expected to apply the test objectively by
reference to the standards of the fair-minded lay observer. According to a
traditional black-letter approach, the individual’s personal feelings will
simply not enter the decision.
But can, as Heydon has
argued throughout his judicial career, legal tests really be objectively
applied by reference only to the law in the books – and unaffected, consciously
or subconsciously, by the individual judges’ background, interest, values and
morals? This question has given rise to some of the great ongoing debates of
legal philosophy.
As already should be
clear, I am sceptical about the possibility of there being a definitive and
cogent account of the common law's operation in line with traditional claims
and ambitions. Nevertheless, I was excited to be told on my arrival in
Australia that there was a recent paper that attempted to do just that. I
eagerly obtained this essay by a former academic and now Justice of the
Australian High Court, Dyson Heydon. The title of his paper, Judicial Activism
and The Death of The Rule of Law, should have immediately tipped me off to what
was to follow.' Still, knowing little of Heydon personally or professionally
and knowing almost as little about Australian recent judicial history, I set to
reading the written version of his speech to the Quadrant Dinner in October
2002. The author was clearly a polished and sophisticated fellow who peppered
his talk with witty asides and sprightly anecdotes. Yet, beneath the gloss and
erudition, the paper offered a very radical and almost anachronistic account of
the common law. Indeed, my first reaction was to think that the date on the
paper must be wrong as it read like something from 1902 rather than 2002.
Heydon offered a rendition of the Rule of Law and the common law that was as
fundamentalist in its formalism as any I could remember reading in any century,
let alone the 21st century. For Heydon, judges can only fulfil their judicial
duties by scrupulously attending to the law's formal structure alone: almost
any consideration of the law's moral or political content is anathema. While I
would normally recommend that such an audacious and frankly improbable proposal
be ignored, the fact that it is espoused by the most recent appointee to the
High Court means that it warrants serious debunking and outright rejection…..
In his incendiary
jurisprudential intervention, Dyson Heydon makes it clear from the outset that
the whole project of modern jurisprudence is mistaken and a betrayal of the
common law tradition. Identifying proudly and explicitly with 'hanging judges'
of yore, he idolises 'that evil old man in scarlet robe and horse hair wig,
whom nothing short of dynamite will ever teach what century he is living in,
but who will at any rate interpret the law according to the books and ... is a
symbol of the strange mixture of reality and illusion, democracy and privilege,
humbug and decency, the subtle network of compromises, by which the nation
keeps itself in its familiar shape'. This is stirring and disturbing stuff. Heydon
leaves no doubt that '[interpretation of] the law according to the books must
be scrupulously adhered to by judges as this is the most effective 'bar to
untrammelled discretionary power? Depicting judges as wild ideological animals
who, if left unharnessed, will wreak political mayhem on an unsuspecting
public, he offers an ideal judge who is 'an independent arbiter not affected by
self-interest or partisan duty, applying a set of principles, rules and
procedures having objective existence and operating in paramountcy to any other
organ of state and to any other source of power'. This means that so powerful and reliable is
'the disinterested application ... of known law drawn from existing and
discoverable legal sources independently of the personal beliefs of the judgeI6
that it can hold in check herds of rogue officials. Moreover, so tamed and
tethered, these institutional pets can be trusted to have supreme power in the
polity….
For Heydon, the recent
history of Australian common law is a morality play in which the dark hordes of
judicial activism have begun to eclipse the established forces of legal enlightenment.
Rallying the judicial troops around a battle-cry of 'Back To The Future', he
urges that time is well past to repel such interlopers and to return the common
law to its traditional grandeur. Unless swift action is taken, the common law
is destined to be sullied by those 'using judicial power for a purpose other
than that for which it was granted, namely doing justice according to law in
the particular case'? In this scenario, the initial assault of the dark
activists forces can be traced back to the 1970s and the villains of the piece
are Anthony Mason and Lionel Murphy. Inveigling their way in to high judicial
office, these usurpers professed allegiance to the common law, but only better
to hijack it for their own political purposes. With some wit and savvy, these
ne'erdo-wells began to abandon the orthodoxies of the common law and replace it
with new credos of their own design: 'the soignt, fastidious, civilised,
cultured and cultivated patricians of the progressive judiciary - our new
philosopher-kings and enlightened despots - are in truth applying the values
which they hold, and which they think the poor simpletons of the vile multitude
... ought to hold even though they do not'." Presumably aided by a duped
band of other High Court judges, the terrible two set about abandoning old
tried-and-true rules and replacing them with newfangled and controversial
doctrines which were little more than rough distillations of their own
political agendas. Indeed, if Heydon is to be believed, Australian common law
is quickly going to political hell in a judicial handcart. It is only with a
return to traditional legal values and judicial methods that such an
ignominious fate can be avoided…..
From the Strewth column
in The Australian, 20 December 2002:
DYSON Heydon may
have snared a prized position on the High Court following his controversial
speech contra judicial activism. He appears, however, to have peeved a few of
the blokes he pinged in the diatribe that some suggest was pivotal to his
appointment. Strewth hears former chief justices, and knights of the realm,
Gerard Brennan and Anthony Mason, will not be attending Heydon's
swearing-in when Mary Gaudron, pictured, retires in February. In the fraternity
that is the old boys' association of the High Court it is customary for all
manner of former judicial officers, friends, relatives and other hangers-on to
front for the boys' own initiation ceremony. So the absence of the two
immediate past chief justices will be conspicuous. Heydon made some
fairly pointed personal remarks about the Mason-era court of 1987-95, and did a
demolition job on the 1992 Mabo case in which Brennan wrote the lead judgment.
Yesterday Mason refused to comment on Heydon's attack on him, or whether
he would attend the swearing-in, and Brennan's chambers also delivered a firm
"no comment". Gezza and Tone aren't the only people cheesed off.
Journalist David Solomon
writing in The Courier Mail article A law
unto themselves, 19 December 2002 issue, p.15:
Heydon is the
fourth appointment made by the Howard Government, so its nominees to the bench
now constitute a majority of the court. In just three terms in office the
Government has been able to put its own stamp on the court, to reverse the more
liberal tendencies of the High Court under Chief Justice Sir Anthony Mason
(though he was first appointed to the court by the McMahon government in 1972,
and some of the appointees of the Hawke or Keating governments were far from
radical in their approach to the law).
This Government made no
secret of its intention of using its appointments to the High Court to change
its jurisprudence. Following the Wik decision in 1996, when the court
unexpectedly held that native title could exist in remote areas covered by
pastoral leases in Queensland, then deputy prime minister Tim Fischer declared
the Government would appoint "three capital-C conservatives" to the
court. It did so during the next year. And Dyson Heydon is the
fourth.
John Dyson Heydon can't
sleep. It has nothing to do with his appointment as a judge of the High Court.
It's a habit of his years at the New South Wales bar.
He tends to begin his
day at 3 am, writing judgments, writing books, reviewing military history.
He is not alone in the
small hours. The 59-year-old works in the company of Napoleon (a marble bust),
the Duke of Wellington (a statue), and a library full of history. He can
recount any battle in detail."
His life has been as
orderly as his library since the time he swapped his rugby days as "Dirty Dyson"
(always covered with mud), to become a professor of law and a barrister….
Married to Pamela for 25
years, and father of Victoria, Christina, Alexandra and Nicholas, Justice
Heydon, QC, is the very model of a modern North Shore citizen. He lives at
Turramurra, and has a weekender at Robertson, NSW….
Valerie Lawson in The Sydney Morning
Herald article Silence on QC's rush to judgment, 11 February 2000 issue, p.7:
The State Government and
the legal profession yesterday stonewalled questions on the controversial
appointment of Mr Dyson Heydon, QC, to the NSW Court of Appeal.
Neither the
Attorney-General, Mr Shaw, nor the Chief Justice, Justice Jim Spigelman, would
comment.
But while the legal
profession publicly praised Mr Heydon's "eminence" lawyers
privately found it peculiar that he will be sworn in on Monday just three
months before his own appeal over a $7 million judgment against him is due to
be heard by the Court of Appeal.
The question on
everyone's lips was: what's the rush?
The State Government and
the legal profession yesterday stonewalled questions on the controversial
appointment of Mr Dyson Heydon, QC, to the NSW Court of Appeal.
Neither the
Attorney-General, Mr Shaw, nor the Chief Justice, Justice Jim Spigelman, would
comment.
But while the legal
profession publicly praised Mr Heydon's "eminence" lawyers
privately found it peculiar that he will be sworn in on Monday just three
months before his own appeal over a $7 million judgment against him is due to
be heard by the Court of Appeal.
The question on
everyone's lips was: what's the rush?
Dyson Heydon, QC,
arrived in a particularly dilapidated wig. He and a couple of Sydney law firms
were ordered last week to pay $21 million damages to the NRMA. The big question
at the Sydney Bar these days is: how much was Heydon's cover? As he passed
along the lines of his black-robed colleagues, they offered shy pats of
reassurance. He barely flinched. *Heydon and the law firms won on appeal on 21 December 2000 at which time he was a Justice in the NSW Court of Appeal*
Last but not
least is Dyson Heydon’s view of many of his fellow judges and of all of us found at the Barnold Law blog, 2 September 2009:
Heydon sniffed in
relation to Australian Capital Television v Commonwealth (1992) 177
CLR 106 that
the soigné,
fastidious, civilised, cultured and cultivated patricians of the progressive
judiciary – our new philosopher-kings and enlightened despots – are in truth
applying the values which they hold, and which they think the poor simpletons of the vile multitude – the great
beast, as Alexander Hamilton called it – ought to hold even though they do not.
The trouble is that persons adhering to different values or different
perceptions of need or different aspirations tend to be at risk of being
ruthlessly waved out of all decent society as enemies of the people. [my red bolding]
