Diary

Gadfly
Dicey business

It’s as though the entire conservative cause in our weird nation has been deracinated.

The allegations against Dyson Heydon leave much havoc in their wake. His political sponsors, Little Winston Howard and the Mad Monk, look gormless, while he has blotted the escutcheons of luminous institutions from the High Court to the University of Sydney, where he is an emeritus professor.

The New South Wales Bar Association put out a statement expressing its deep concern yet it felt “constrained by circumstances from commenting” on Heydon’s case.

An independent inquiry at the High Court found both Murray Gleeson, then chief justice, and another High Court judge, Michael McHugh, were told in 2005 that Heydon, then aged 62, tried to kiss his female associate, 26.

When Heydon was Abbott’s royal commissioner with riding instructions to unstitch the trade unions, he wanted to attend as guest speaker at a Liberal Party fundraiser.

The furore was deafening, but fortunately the then attorney-general, Bookshelves Brandis, rode to Dicey’s defence, declaring he has an “absolutely stainless reputation for punctilious integrity”.

Early warning signs

We should have been alert to troubling signs as far back as 2003. In that year, Dicey was a judge on the NSW Court of Appeal where he delivered a judgement in a case called Harris v Digital Pulse Pty Ltd.

It concerned whether exemplary damages could be awarded for breach of fiduciary duty – just the sort of thing to get an equity lawyer trembling with excitement.

Heydon was dead against an award of “punitive” damages in such a case. He ended his reasons on a puzzling note:

“In short, equity does not bear the same relationship to the instinct for revenge as the institution of marriage does the sexual appetite.”

Decidedly weird, eh?

Secrets and spies

It’s probable we know by now the decision of the ACT Supreme Court on the attorney-general’s certificate affecting the open justice principle in the Bernard Collaery case.

The Very Reverend Christian Porter is partial to secret trials, secret charges, secret evidence and secret judgements – as we’ve seen in the case of Witness J.

The puzzle has been in what respect has national security been adversely impacted by the revelation that Australia spied on a friendly and relatively impoverished neighbour and then set about harassing the spy who broke ranks on the dirty deed and the lawyer who acted for him. In truth it’s government embarrassment and the protection of ministers such as Bunter Downer that are more pressing concerns.

Sister Susan Connelly has been arranging pickets of citizens outside the court, which has taken in excess of 30 sittings to hear the attorney’s lawyers press the case for a secret trial.

Parts of the media also have been justifiably enraged by the vengeful sham, and there’s much shouting from the rooftops about the process and why Collaery and Witness K should be in court at all.

Which makes the relative silence from the Law Council of Australia, the ACT Law Society and the Labor opposition distressingly eerie.

The Law Council had had a proud record on human rights issues, but its voice about Collaery has been muted, to say the least.

It issued a statement in March about open justice and Witness J’s secret conviction and imprisonment following a review of the National Security Information Act. On June 24 the LCA told your correspondent that while open justice is one of the “fundamental attributes of a fair trial … secrecy or suppression may be appropriate where there are exceptions to open justice”.

There’ll be a bit of chafing around the nether regions with that straddle. The reflex response is that proceedings are ongoing, and we can’t say anything, which is exactly the response Porter is hoping for. The less said, the better.

The Labor Party has been hopeless and its leaders memorably silent about this Star Chamber atrocity. There have been exceptions, such as shadow AG Paul Lynch in NSW, and MPs Graham Perrett from Queensland and Julian Hill from Victoria – all of whom have tried to make waves.

Mail delays

How are those Jolly John Kerr dismissal letters going? It was May 29 when the High Court said they were not private, personal secrets to be held at Her Majesty’s indefinite pleasure.

In fact, the court ordered that a writ of mandamus be issued “to compel the Director-General of the National Archives of Australia to reconsider Professor Jenny Hocking’s request for access to the deposited correspondence”.

David Fricker is the director-general of the archives and a former officer in the Customs Service and later the deputy director-general of ASIO.

He has known about Professor Hocking’s applications for access, hearings and appeals for many years and he is familiar with the contents of the correspondence.

So, what’s the hold-up? A decision by Fricker is to be made “by the end of July 2020”. Initially he wanted 90 days to cogitate about the letters and consider redactions. That was subsequently amended to 60 days.

But redactions – what redactions and why the go-slow?

No one had been expecting the archives to redact these historically important pieces of flowery correspondence, unless perhaps it is Betty Battenberg’s bedside phone number.

The National Archives has talked about “declassification” of the documents, which were not classified in the first place, just withheld.

Already about $2 million of taxpayers’ money has been lavished on the legal struggle to prevent the release of these missives, in which the governor-general opens his wine-soaked veins to the royal flunkies.

Something’s going on and it smells dodgy.

Stacking it on

The nation was rendered speechless with the news that Labor Party people were stacking branches in Victoria.

As one of Gadfly’s field agents remarked, it makes you pine for the stable days when Bill Hartley and George Crawford ran the show.

But the wails of confected indignation coming from the Coalition benches may have temporarily diverted attention from the government’s track record of stacking the Administrative Appeals Tribunal with political hacks, failed candidates and out-of-work former staffers.

Then there’s the stacking of the honour list with fragrant party favourites, such as Father of the Pacific Solution Phil Ruddock; the Mad Monk; Bronwyn Bishop, the most partisan speaker in parliamentary memory; and the closest Labor has to a Liberal, Graham Richardson. Analysis by Crikey’s INQ investigative reporter David Hardaker reveals that for 2019 and 2020, 67 per cent of political gongs went to conservative politicians. When it comes to awards of the top-flight AC and the AO, Liberals and Nationals cleaned up 77 per cent of the prizes.

Shocking as it may seem, Malcolm Trumble also has been accused of branch stacking, in Wentworth.

All this stacking and rorting is accompanied by the introduction of a university humanities tax, using demand-side methods to cripple the enemy. Presumably, in time the extinguishment of arts degrees will leave much political history undisturbed and unwritten.

Thirty years ago, then Education minister John Dawkins turned technical colleges into universities, not always with uniform success. Now we have the current minister, Dan Tehan, turning universities into technical colleges, with the prospect of even less success.

Angles in America

News in from the US of A with no better place to start than the Supreme Court decision in the transgender civil rights case Bostock v Clayton County, Georgia.

This was the unexpected decision where a predominantly deeply conservative court decided to protect LGBTQIA+ people against workplace discrimination.

A good ol’ culture-wars case if ever there was one. Justice Neil Gorsuch’s majority opinion took 33 pages, while the dissent rabbited on for 135 pages.

Samuel Alito, who was joined by alleged groper Clarence Thomas in the minority, thought that a liberal understanding of the legislative text would be that Americans in 1964 could not possibly think that discrimination because of sex would mean discrimination due to sexual orientation. Different stuff entirely.

Primarily the dissenters were concerned about transgender people in bathrooms. Justice Alito warned: “… for women who have been victimised by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm”.

While there’s much to ponder in that observation, we might expect even more alarming trends with news that at least 50 candidates for congress at the 2020 elections, nearly all Republicans, have expressed support for QAnon.

QAnon propagates conspiracy theories such as the world is run by a group of deep state paedophiles, hence Pizzagate; that coronavirus has been created by Barack Obama and the deep state; that John F. Kennedy is still alive and is going to replace Mike Pence on the Republican ticket et cetera.

Quite a lot of evangelical stuff is mixed up with this, hence it is no surprise that one of Schmo’s friends is an adherent of QAnon.

But 50 certified adherents of the cause want to be lawmakers in the congress of our powerful ally – as if the world is not in enough strife.

Tips and tattle: [email protected]

This article was first published in the print edition of The Saturday Paper on Jun 27, 2020 as "Gadfly: Dicey business".

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Richard Ackland
is the publisher of Justinian. He is The Saturday Paper’s diarist-at-large and legal affairs editor.

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