With his credibility as trade union royal commissioner in question, Dyson Heydon’s past rulings speak volumes about the man he is.By Richard Ackland.
Judging Dyson Heydon
Dyson Heydon is an intensely private man who has lived much of his life as a public figure.
The current circumstances in which he finds himself are personally excruciating. Why he took on this grubby job for such a grubby government must be one of his inconsolable regrets. Or at least you’d hope so.
Abbott and Co were keen to get him because he brought to the royal commission the imprimatur of the High Court. His findings would be judicial, independent, final, beyond appeal.
Except that’s not the case. A royal commissioner is not a judge, but a part-time public servant, not independent of the government. The government writes the terms of reference, and if clever enough writes them in a way that determines the outcome. The royal commissioner is a creature of the government with no constitutional protections for independence. The High Court must be wincing in horror at the reflected muck on its escutcheon.
In his professional and private life Heydon’s contact with unions and workers would have been next to negligible. He was never a trial judge, so he did not have the daily grind of weighing evidence and assessing character and determining issues of fact. He was utterly remote from the very requirements for someone conducting an inquiry into trade unions.
He’s much happier discussing the lives of the dukes of Marlborough, 19th-century literature, English generals and forgotten battles.
The son of Sir Peter Heydon, a diplomat who served in various posts, Dyson was born in Canada. It was then off on the pathway to grace: Shore school, St Paul’s at the University of Sydney, the university medal in history, Rhodes Scholarship, the Vinerian Scholarship, fellow of Oxford’s Keble College, professor of law at Sydney by the age of 30, a time at Allen Allen & Hemsley, the bar, the bench and then onto Grub Street for the Abbott crowd.
Throughout, he developed a brittle, pedantic, precious way of expression. He put other lawyers on edge, particularly those from Melbourne who rejoice in intellectual rivalry with barristers north of the Murray.
As Melbourne barrister Geoffrey Gibson observed about Heydon: “He is the author of works in the wantonly superior and acerbic style that some elevated lawyers in Sydney appear to find satisfying.”
He looks like Methuselah, with parchment flesh. He’s old, white and male.
A journalist looking in from outside can’t pretend to understand him, so it’s to his judgements and speeches we should turn most conveniently to discover the extent, if at all, that the inner Dyson is different to the what-we-see Dyson.
Unless he’s been pulling our leg for a very long time, the sort of Australia he envisages is as visionary as that of Joh Bjelke-Petersen’s, although with a finer grasp of the separation of powers and the law of promissory estoppel.
Take some of the most important political cases to come before the High Court in his time, where he ended up on the wrong side of history and, as it turned out, on the wrong side of the law. He was locked in as an arch dissenter.
On refugees, on Keynesian economic prescriptions, on religious instruction, on law-and-order measures, on the rights of corporations he applied a legal interpretation that saw Australia as something akin to an outfit run by the editors of Quadrant or the H. R. Nicholls Society.
In Pape v Commissioner of Taxation (2009), the case that challenged the Commonwealth’s power to introduce stimulus measures to counteract the global financial crisis, Heydon produced a minority judgement suggesting that the GFC should not be cause for unnecessary alarm. It might even be a false scare to allow the government to grab more power.
“The truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of ‘emergencies’, ‘crises’, ‘dangers’ and ‘intense difficulties’, of ‘scourges’ and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty pandemics, obesity and global warming, as well as global financial affairs … The great maxim of governments seeking to widen their constitutional powers would be: ‘Never allow a crisis to go to waste.’ ”
When it came to the national school chaplaincy program (Williams v the Commonwealth, 2012) Heydon, in the minority on the expenditure question but with the majority on the religious observance question, again delved into language:
“In ordinary speech a ‘chaplain’ is the priest, clergyman or minister of a chapel; or a clergyman who conducts religious services in the private chapel of an institution or household. Those who are ‘school chaplains’ under the NSCP’s auspices fall outside these definitions. Their duties in schools are unconnected with any chapel. They conduct no religious services.”
It’s heartening that private chaplains for households is an idea that had not lost its currency for the judge.
On “plain packaging” of cigarettes Heydon’s minority reasons, against the Commonwealth’s health policy, are something that would make the Institute of Public Affairs blush. Here the constitutional issue was whether the acquisition of property, other than on just terms, gave the Commonwealth a benefit. Heydon is sure that the Commonwealth did benefit, so the acquisition without just terms was unconstitutional.
He said that, in effect, the Tobacco Plain Packaging Act tells the proprietors of tobacco companies: “You have been controlling your intellectual property and your chattels with a view to making profits in your business; I want to stop you using the intellectual property in very large measure, and command you as to how you are to use what is left of your property, not with a view to making profits in your business, but with a view to damaging them by making the products you sell unattractive; I will therefore take over control of your intellectual property and chattels from you.”
And bugger the damage you are causing to the nation’s health.
Most intriguingly he believes that the Commonwealth has a “hatred” of the “just terms” provision in the constitution. He reached for Kipling’s “Recessional” (1897) and portentously wrote:
“After a ‘great’ constitutional case, the tumult and shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in parliament remains forever. Solicitors-general go. Solicitors-general come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s.51(xxxi) [acquisition of property on just terms] may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.”
The companies still want their money back and are giving the judge’s proposition another run in investor-state dispute settlement proceedings under an Australia–Hong Kong investments treaty.
In the 2011 “Malaysia Solution” case, the majority High Court judges found that the immigration minister could not make a valid decision about sending asylum seekers to that country because it is not a signatory to the Refugee Convention and so it would be unable to recognise refugee status in accordance with international law.
Yet Heydon kept his faith that the Malaysians would do the right thing by our refugees: “What matters is the achievement of results in fact, not the identification of formal structures conforming to the ideal standards of an Abbé Sieyès which may or may not achieve them.”
On questions of government control orders, bills of rights, and permanent detention of people without charge, his strict adherence to the law, peppered with appropriate historical allusions, got the issue over the line with outcomes that surprised no one.
In the current context, where there has been an allegation of bias against Heydon, the royal commissioner himself helped us out with an understanding of what’s required.
Here he is delivering his famous High Court job application speech at the 2004 Quadrant dinner. On the question of judicial probity he said:
“Probity may be affected by conscious bias for or against a particular litigant or class of litigants. The law compels judges who have such a bias or may reasonably be thought to have such a bias to disqualify themselves, and in the practice it may be assumed that very few judges are consciously biased.”
Lawyers for the ACTU could not have put it better themselves.
This article was first published in the print edition of The Saturday Paper on Aug 22, 2015 as "Judging Heydon".
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