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Dyson Heydon

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John Dyson Heydon KC (born 1 March 1943) is an Australian former judge and barrister who served on the High Court of Australia from 2003 to 2013 and the New South Wales Court of Appeal from 2000 to 2003, and previously served as Dean of the Sydney Law School. He retired from the bench at the constitutionally-mandated age of 70 and went on to chair the Royal Commission into Trade Union Governance and Corruption between 2014 and 2015, an appointment that was politically controversial due to his avowed conservatism and connections with the governing conservative party.

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

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

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Heydon was born in Ottawa, Canada, to Muriel Naomi (née Slater) and Peter Richard Heydon (later Sir Peter). His father, a diplomat and public servant from Sydney, met his mother (a Canadian) while both were on the staff of Richard Casey, the Australian Ambassador to the United States.[2] Heydon was raised in Sydney, attending the Shore School, before going on to receive a BA in history (with the University Medal) from the University of Sydney, where he was a resident of St. Paul's College. He was then awarded a Rhodes Scholarship to attend University College, Oxford, where he received an MA and a BCL and was awarded the Vinerian Scholarship.[3]

In 1967, Heydon became a fellow of Keble College, Oxford and, after graduating in 1968, he began teaching at the University of Ghana in 1969. In 1973 he returned to Australia and was admitted to the New South Wales Bar Association in 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 the University of Sydney Law School in 1978, serving a one-year term. He left to become a barrister, working at Selborne Chambers, where his colleagues included future High Court colleague William Gummow and New South Wales Supreme Court judge Roddy Meagher.[4] He was appointed a Queen's Counsel (QC) in 1987.[5] In 1999, the Supreme Court of NSW found Heydon negligent in the advice he had given to the NRMA in 1994 concerning its demutualisation. 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 book The Restraint of Trade Doctrine continues in a fourth edition.[11] In 1975, he published Cases and Materials on Equity, the ninth edition of which came out in 2019.[12] With Sir James Gobbo and David Byrne, he co-authored the second Australian edition of Cross on Evidence in 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's Equity: Doctrines and Remedies.[14][15] He is also a co-author of Jacobs' Law of Trusts in Australia.[16] In 2019 he published Heydon 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 the Court of Appeal of the Supreme Court of New South Wales in 2000, and appointed a Justice of the High Court of Australia in February 2003.[18] His appointment to the High Court by the Howard government was generally welcomed, and Attorney-General Daryl Williams noted 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 Justice Murray Gleeson, as well as Justices Gummow and Kenneth 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 the constitutionally mandated retirement 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 in Plaintiff M70/2011 v Minister for Immigration and Citizenship, relating to the Gillard government's "Malaysian solution" for asylum-seekers, and in Williams v Commonwealth, relating to the federal government's funding of school chaplains. He also dissented in the case of Charles Zentai (writing in favour of his extradition to Hungary), and in the challenge to the Australian government's plain tobacco packaging legislation (writing in favour of British 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, Sir Anthony Mason and Sir Gerard 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 Minister John 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 English Law Quarterly Review argued 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 than poppy or mandragora or all the drowsy syrups of the world".[a][4] His judgments went against the continued expansion of the implied freedom of political communication—notably in Rowe v Electoral Commissioner, where, according to James Allan, he "betrays real anger at where the majority judgments are taking constitutional interpretation" instead of Heydon's preference for originalism.[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 the Abbott government.[33][34]

Heydon handed down the Commission's interim report in December 2014[35] and found that the Construction, Forestry, Mining and Energy Union (CFMEU) acted in "wilful defiance of the law". Dyson recommended that criminal charges of blackmail be considered against John 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 Age reported 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 former Australian Workers Union officials for their use of a secret slush fund in the 1990s. One of the officials implicated was an ex-boyfriend of Julia 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 present Health Services Union officials 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 Sir Garfield Barwick Address, an event organised by a branch of the Liberal 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, the ACTU, 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 the Governor-General on 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 the High Court found that Heydon had sexually harassed six female associates while he was a member of the Court. The Chief Justice of Australia, Susan Kiefel apologised 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, the Sydney Morning Herald published 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 the Order 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 play Othello, Act III, Scene 3.

References

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  1. ^ a b McClymont, Kate; Maley, Jacqueline (22 June 2020). "High Court inquiry finds former justice Dyson Heydon sexually harassed associates". Sydney Morning Herald. Archived from the original on 22 June 2020. Retrieved 22 June 2020.
  2. ^ Nethercote, J.R. (1996), "Heydon, Sir Peter Richard (1913–1971)", Australian Dictionary of Biography, Australian National University, archived from the original on 1 March 2014
  3. ^ "NSW Rhodes Scholars 1904—2009". The University of Sydney. Archived from the original on 10 October 2012. Retrieved 6 March 2012.
  4. ^ a b c d e McClymont, Jacqueline Maley, Kate (26 June 2020). "Dyson's 'dirty deeds': the public v private face of 'sexual harasser'". The Age. Archived from the original on 27 June 2020. Retrieved 27 June 2020.{{cite web}}: CS1 maint: multiple names: authors list (link)
  5. ^ Richard Ackland. "Judging Dyson Heydon" Archived 25 September 2015 at the Wayback 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. Archived from the original on 24 September 2015. Retrieved 18 August 2015.
  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. Archived from the original on 23 June 2020. Retrieved 22 June 2020.
  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. ISBN 9780409348347. Archived from the original on 29 June 2020. Retrieved 27 June 2020.
  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. ISBN 9780409351903. Archived from the original on 29 June 2020. Retrieved 27 June 2020.
  14. ^ Heydon, J. D.; Leeming, M. J.; Turner, P.J. (2014). Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5 ed.). Chatswood, NSW: LexisNexis. ISBN 9780409332261. Archived from the original on 27 June 2020. Retrieved 27 June 2020.
  15. ^ "Book review: Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th Edition)" (PDF). Archived (PDF) from the original on 17 May 2017. Retrieved 14 March 2018. (2015 Autumn) Bar News: Journal of the NSW Bar Association 63.
  16. ^ Heydon, J. D.; Leeming, M. J. (2016). Jacobs' Law of Trusts in Australia (8 ed.). Chatswood, NSW: LexisNexis. ISBN 9780409343502. Archived from the original on 30 June 2020. Retrieved 27 June 2020.
  17. ^ Heydon, J. D. (2019). Heydon on Contract. Pyrmont, NSW: Thomson Reuters. ISBN 9780455500201. Archived from the original on 27 June 2020. Retrieved 27 June 2020.
  18. ^ a b "Justice Heydon appointed to High Court" (transcript). AM (ABC Radio). Australia. 18 December 2002. Archived from the original on 24 February 2012. Retrieved 11 February 2010.
  19. ^ a b John Barron (19 August 2015). "Dyson Heydon: Who is the royal commissioner being urged to resign over Liberal links?" Archived 23 August 2015 at the Wayback 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. Archived from the original on 29 June 2020. Retrieved 27 June 2020.
  21. ^ "Justice Heydon triples his dissent rate for 2011". Timebase. Australia. 12 August 2011. Archived from the original on 17 September 2011. Retrieved 21 October 2011.
  22. ^ Michael Pelly (19 October 2012). Heydon The Great Loner pens his legacy Archived 1 November 2012 at the Wayback 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 University and UNSW Australia. Archived from the original on 25 August 2015. Retrieved 28 August 2015.
  24. ^ Heydon, Dyson (2003). "Judicial Activism: the Death of the Rule of Law". Quadrant (January–February): 9. Speech to a Quadrant dinner on 30 October 2002. Reprinted: Heydon, Dyson (2004). "Judicial Activism: the Death of the Rule of Law". Otago Law Review. 10: 493. Archived from the original on 14 August 2019. Retrieved 22 June 2020.
  25. ^ "The dicing of Heydon's job application". Justinian. 16 February 2004. Archived from the original on 26 March 2012. Retrieved 3 September 2011.
  26. ^ Heydon, Justice Dyson (7 April 2003). "How judicial activism results in the death of the rule of law in Australia". Online Opinion. Archived from the original on 14 May 2011. Retrieved 11 February 2010.
  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. Archived from the original on 12 March 2016. Retrieved 21 August 2015.
  29. ^ Dixon, Rosalind; Williams, George (29 March 2015). The High Court, the Constitution and Australian Politics. Cambridge University Press. p. 67. ISBN 978-1-316-27678-5. Archived from the original on 15 September 2020. Retrieved 24 October 2016.
  30. ^ Woods, Robert (20 August 2015). "Dyson Heydon's extreme view of judicial independence on display". Sydney Morning Herald. Archived from the original on 27 September 2015. Retrieved 22 June 2020.
  31. ^ McIntyre, Joe (2016). "In Defence of Judicial Dissent". Adelaide Law Review. 37 (2): 431–459. Archived from the original on 2 July 2020. Retrieved 2 July 2020.
  32. ^ Allan, James (2012). "The Three 'Rs' of Recent Australian Judicial Activism: Roach, Rowe and (No)'Riginalism". Melbourne University Law Review. 36 (2): 743. Archived from the original on 29 June 2020. Retrieved 27 June 2020.
  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 from the original on 11 February 2014. Retrieved 10 February 2014.
  34. ^ "Letters Patent" (PDF). Royal Commission into trade union governance and corruption. 13 March 2014. Archived from the original (PDF) on 12 March 2015.
  35. ^ a b c "Homepage". Royal Commission into Trade Union Governance and Corruption. Archived from the original on 11 August 2015. Retrieved 18 August 2015.
  36. ^ "Interim Report" (PDF). Royal Commission into Trade Union Governance and Corruption. December 2014. Archived from the original (PDF) on 12 March 2015. Retrieved 18 August 2015.
  37. ^ a b Schneiders, Ben; Patty, Anna (19 December 2014). "Royal commission takes aim at CFMEU, recommends charges against senior officials". The Age. Archived from the original on 24 July 2015. Retrieved 24 June 2020.
  38. ^ Whitbourn, Michaela (13 August 2015). "Sir Garfield Barwick address attracts a bevy of Liberal luminaries". Sydney Morning Herald. Archived from the original on 14 August 2015. Retrieved 13 August 2015.
  39. ^ Hunt, Elle (31 August 2015). "Dyson Heydon: I read emails only after they have been printed out for me". Guardian. Archived from the original on 30 June 2020. Retrieved 29 June 2020.
  40. ^ Benns, Matthew (22 August 2015). "Unions say Royal Commissioner Dyson Heydon should stand down due to being 'partisan against ALP'". Daily Telegraph. Australia. Archived from the original on 19 September 2020. Retrieved 28 August 2015.
  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. Archived from the original on 23 August 2015. Retrieved 28 August 2015.
  42. ^ Heydon, Dyson (31 August 2015). "Reasons for ruling on disqualification application" (PDF). Royal Commission into trade union governance and corruption. Archived from the original (PDF) on 31 August 2015. Retrieved 31 August 2015.
  43. ^ Cox, Lisa; Patty, Anna; Whitbourn, Michaela (31 August 2015). "Trade Union Royal Commission: Dyson Heydon stays on as Commissioner". Sydney Morning Herald. Archived from the original on 2 September 2015. Retrieved 31 August 2015.
  44. ^ Keany, Francis (30 December 2015). "Trade union royal commission findings: Malcolm Turnbull says report shows widespread malpractice in unions". ABC News. Australia. Archived from 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. Archived from the original on 1 July 2020. Retrieved 19 April 2016.
  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. Retrieved 22 June 2020.
  47. ^ Maley, Jacqueline; McClymont, Kate (24 June 2020). "'Dirty Dyson': former judge Heydon's nickname at Oxford amid fresh harassment claims". Sydney Morning Herald. Archived from the original on 24 June 2020. Retrieved 24 June 2020.
  48. ^ Chrysanthos, Natassia (25 June 2020). "'The stakes are so high': Inside the two-year Heydon investigation". Sydney Morning Herald. Archived from the original on 26 June 2020. Retrieved 25 June 2020.
  49. ^ Knaus, Christopher (22 June 2020). "Former high court justice Dyson Heydon sexually harassed staff, inquiry finds". The Guardian. Archived from the original on 22 June 2020. Retrieved 22 June 2020.
  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. Archived from the original on 1 July 2020. Retrieved 1 July 2020. Contains a further harassment allegation.
  51. ^ Estcourt, David (23 June 2020). "'Visceral fear': Lawyers threaten Heydon with Human Rights Commission". Sydney Morning Herald. Archived from the original on 24 June 2020. Retrieved 23 June 2020.
  52. ^ "Settlement of claims made against former High Court Justice Dyson Heydon". Our ministers – Attorney-General's portfolio. Retrieved 14 February 2022.
  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. Retrieved 14 February 2022.
  54. ^ Naomi Neilson (14 February 2022). "Dyson Heydon victims secure settlement". Lawyers Weekly. Momentum Media. Retrieved 14 February 2022.
  55. ^ Maiden, Samantha (14 February 2022). "Judge's victims given secret six-figure payout". news.com.au. Retrieved 14 February 2022.
  56. ^ "Order of Australia - Notice of Resignation - October 2022". Federal Register of Legislation (Commonwealth Gazette). 25 November 2022. Retrieved 25 November 2022.
  57. ^ Remeikis, Amy (25 November 2022). "Former high court judge Dyson Heydon resigns as member of the Order of Australia". The Guardian. Retrieved 26 November 2022.
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