Opinion

Paul Bongiorno
Injustices at the High Court

The shorthand title was the trade union royal commission – and the highest-profile targets were a former Labor prime minister, Julia Gillard, and the then Labor leader, Bill Shorten. And everybody knew it.

Undaunted by the howls of foul play from the opposition and the criticism of commentators, then Liberal prime minister Tony Abbott had high praise for the man he hand-picked for the job six years ago, former High Court judge Dyson Heydon.

This week, the appointment came back to further tarnish the reputation of what was a highly controversial exercise. Sooling the law onto your political opponents is rarely a good look, and sets a precedent your opponents may one day follow.

At the time, Abbott attempted to cloak his hardball political play in the aura of Heydon’s virtue. The former judge had been long known to Abbott, and was on the panel that awarded him a Rhodes Scholarship to Oxford in the 1980s.

As criticism of the royal commission began, then attorney-general George Brandis said Heydon had an “absolutely stainless reputation for punctilious integrity”. Abbott said “there is no more distinguished person in the legal profession than Justice Dyson Heydon”.

Heydon’s rise to the High Court is sometimes linked to a 2002 speech, which was given under the auspices of the reactionary magazine Quadrant and seen as a job application for the vacancy created by the departure of Justice Mary Gaudron. In the speech Heydon outlined what he thought were the qualities judges needed. “One is a firm grip on the applicable law,” he said. “The other is total probity.” His sneering attack on the “judicial activists” who infested the court of Chief Justice Anthony Mason certainly impressed then prime minster John Howard – and he was given the job. Flash forward to 2014 and, according to The Advertiser, Heydon was being offered a $780,000 annual salary for his role on the royal commission.

This week, however, the chief justice of the High Court, Susan Kiefel, took some of the shine out of his “stainless reputation for punctilious integrity”. A court-initiated inquiry by the former inspector-general of intelligence and security Vivienne Thom found Heydon had sexually harassed six young female associates when he was on the court. Heydon denies all allegations.

Kiefel was uncompromising in her statement, released on Monday. She said the six women “have been believed”. And, unequivocally: “We’re ashamed that this could have happened at the High Court of Australia.”

Lawyers for Heydon told The Sydney Morning Herald that “if any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused”.

It’s clear “Handsy Heydon” – a nickname reported in the Herald investigation – either doesn’t get it or doesn’t want to. Apparently the former high-flying judge was also called “Dirty Dyson” by students at Oxford University, where he lectured after his retirement from the bench. A complaint was made about his conduct while there and his visiting professorship was not renewed.

What is significant here is that the all-male preserve of the upper echelons of the law has been finally busted. Kiefel was appointed to the High Court in the final months of the Howard government, and appointed as our first woman chief justice by the Turnbull government three years ago. She had a reputation as a black-letter lawyer in the mould of Heydon, but as is now clear she is light years away from any outdated patriarchy whose first instinct is to doubt the credibility of victims of sexual assault, male or female.

It is hardly surprising that the most outspoken Labor critic of Heydon this week was one of the former royal commissioner’s targets, Bill Shorten. Back then, Heydon called into question Shorten’s credibility as a witness and warned him against being “evasive”. Former prime minister Julia Gillard kept her dignified silence – even after the commissioner had preferred the evidence of one of her hostile union critics with a questionable reputation. At the time she said she believed she had been dealt with unfairly.

Heydon’s impartiality came under heavy scrutiny in the midst of the inquiry, when it was revealed he was to be the guest speaker at a Liberal Party fundraiser. His explanation – that he was unaware of the purpose of the dinner – was not especially convincing. But in a 67-page response he rejected Labor and union calls for him to recuse himself for apprehended bias.

In a series of interviews on Tuesday, Shorten was hardly Robinson Crusoe in greeting the harassment findings as “shocking”. He praised the courage of the complainants and noted the “massive power imbalance”. His bitterness at the Abbott-era royal commission was palpable. On Channel Nine’s Today show he said the “witch-hunt” was a waste of time. “Now it turns out that the witch-hunter in chief has got his own baggage.”

Shorten suggested that, if there is court action or further revelations, Heydon shouldn’t get to keep his earnings from the royal commission. He echoed a tweet from his Labor colleague Julie Collins, who called for the former judge to be stripped of his Order of Australia honour. Labor leader Anthony Albanese preferred to focus on workplace reforms with protocols to give staff protection from bullying and harassment, as did shadow attorney-general Mark Dreyfus. But by midweek Albanese agreed Heydon was not worthy of his gong.

The current Liberal prime minister, Scott Morrison, made no attempt to defend the former judge. He said the allegations were “obviously very disturbing” and “incredibly serious”. He foreshadowed a “proper formal process” and said questions of honours could be addressed depending on this process. If it were the seventh year of the Abbott government, that sort of response would have been much harder to get.

Shorten’s royal commission trauma appears to have prompted him to want to inflict similar pain on the Morrison government over its scandalous handling of the robo-debt fiasco. On Tuesday, Shorten and Albanese called for a royal commission into the “wrong and illegal” demands for repayments from thousands of Australians determined by an automated process.

At their Parliament House news conference they were asked why this was different from the Coalition’s royal commissions. Of particular relevance was the Royal Commission into the Home Insulation Program, popularly known as the pink batts inquiry. In 2013 it was the first big announcement of the newly installed Abbott government. Abbott said it was to keep faith with the families of the four dead men killed installing the batts. It was the ninth inquiry into the scheme and found nothing substantially new, except that it managed to humiliate the man Abbott vanquished at the election, Kevin Rudd.

By contrast, one estimate coming out of the bureaucracy is that, of the 2000 people who have died after receiving robo-debt notices, as many as 800 were suicides. There is no way of checking this, but it is one reason Labor is calling for a royal commission. It would also give protection to whistleblowing public servants who might detail the inner workings of the scheme and the government’s handling of queries that were undoubtedly raised.

Shorten says it took the hapless minister, Stuart Robert, 1000 days to finally respond to an Administrative Appeals Tribunal question mark over the legality of the scheme as it evolved. He “took out the trash” late on a Friday last month. The government will now repay $721 million to about 373,000 people. Other questions – about interest owed and how permanent the debt waiver is – remain. But by any measure the scale of the hurt from this robo-debt imbroglio adds weight to the gravity of Labor’s call. That, and the fact that not one ministerial head has rolled.

Morrison dismissed the need for a royal commission, “because we’re fixing the problem”. But by the time of Abbott’s pink batts probe that problem had well and truly been fixed, too.

The precedent has been set for a future Labor administration to put Morrison and Robert in the dock. They will just need to find a commissioner who actually has an “absolutely stainless reputation for punctilious integrity”.

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732

This article was first published in the print edition of The Saturday Paper on Jun 26, 2020 as "A vacuum of justice".

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Paul Bongiorno is a columnist for The Saturday Paper and a 30-year veteran of the Canberra Press Gallery.