In chambers last week the Dyson Heydon affair occupied many hours of debate. The allegations were shocking but the Chief Justice’s intervention equally so.
Some colleagues took the view that the Chief Justice’s personal and public intervention was a step too far. That I am unable to put my name to this article for fear of serious professional reprisal is telling. That there is a robust debate occurring behind closed doors, because it is not possible to have an open debate, points to how wrong the Chief’s intervention was.
There is furious agreement that sexual harassment of an associate by a judge is appalling. It was as wrong ten years ago as it is now. The Chief Justice was correct to say that it was a terrible thing to occur in the High Court of Australia. Given the tsunami of allegations that have come to light in the past week it is an understatement to say that Mr Heydon probably did not always conduct himself with decorum. But let’s get some perspective. The allegations are what lawyers describe as low-level sexual harassment. The pattern of conduct is that a proposition generally occurs at or after an event where alcohol has been consumed. An inappropriate touch might occur. The advance is refused, and Mr Heydon retreats, apparently for good. There is no real suggestion of sexual assault. So we are not dealing with an alleged crime. We are dealing with inappropriate conduct that causes offence to the woman involved. For a young female associate it could be particularly distressing. There was no debate around this. Where the debate began was the process that had been undertaken by the High Court.
It is common for employers faced with a workplace dispute of a private nature to carry out an internal investigation usually conducted by an external consultant or lawyer. The object is to find some facts in amongst the accusations and denials so that steps can be taken to resolve the dispute and hopefully, avoid litigation. The investigations are usually informal, confidential and legally privileged. It is almost unheard of for such an inquiry to occur when the parties involved are no longer employed at the workplace, let alone many years later. There are good reasons for this. But the best reason is that there is no generally available legal remedy for old sexual harassment claims. All avenues of legal redress have time limits. For example, the Australian Human Rights Commission has an indicative six-month time limit on sexual harassment claims (which can be extended if the case demands it). This time limit was reduced by the federal government in 2017, down to six from 12 months. The policy reason behind the relatively narrow window in which to file a complaint is sound: the complaints are about a breach of civil law which regulates conduct that merely causes offence, hurt or upset feelings.
The time limits recognise that victims of harassment may and often do change their minds about the significance of the events at a later stage, and that it is undesirable for such matters to hang around for years. The legislature has determined it is appropriate that such matters be dealt with close to the time that the incidents occurred.
So this is the first problem. The allegations are historic and in the ordinary case the HRC would not extend the time limit for matters which allegedly occurred so very many years ago. Why then would the HRC make a special case for Mr Heydon? The answer is that it shouldn’t. But now that the complaints have been given the endorsement of the highest judicial office in the land, the HRC will be under enormous pressure to find a reason to extend the time for the complainants. Why would the HRC open up an investigation about events that took place many years ago, which would not ordinarily be opened up? And more to the point, why would the High Court risk being seen as actively playing a part in this? Was it inadvertent or deliberate?
This brings us to the second problem. Bias. No student of history or politics would be surprised to hear that the internal politics of the highest court in the land can be fraught. Some courts are more harmonious than others. The Gleeson and French Courts on which Mr Heydon served had their share of internal disputes. The Chief Justices were highly regarded jurists and outstanding managers. But there were justices sitting on both Courts who reportedly despised each other. It is notorious that Mr Heydon is not on good terms with a number of the justices with whom he sat, including the now Chief Justice. So there is no avoiding the question of bias, either actual or apprehended.
This raises serious questions about the fairness and integrity of the process, but no one can publicly say so because the profession has been silenced.
Faced with complaints that were likely to become public, it was incumbent on the Court to publicly express sympathy with the complainants, but in a neutral way. It could have announced the implementation of new processes to ensure this could not happen again, without convicting Mr Heydon.
The announcements could have been made through the Court’s manager, but never the Chief Justice. Instead the Chief has waded in personally, poured fuel on an intense fire and given tacit approval to a diabolical media witch-hunt — which has clearly been in the planning for months — such that book burnings will surely follow. Worse, it has left a former chief justice and another justice exposed to unfair and inappropriate public speculation and criticism about which they can only remain silent.
Mr Heydon was never going to emerge from sexual harassment allegations without acute public and private humiliation. But the Chief Justice has deployed her power in a way that is unprecedented, resulting in Mr Heydon’s personal destruction and banishment from polite society. The intervention almost ensures he will not receive fair or equal treatment under the law.
Many lawyers believe this should have been handled differently. It is regarded by some as a capitulation to the fashionable and illiberal #MeToo movement, which has been able to extract new rules seemingly designed just for Mr Heydon. The Chief Justice’s words and deeds leave the Court exposed to the rare charge that it has undermined its own integrity. It is a concerning development for the rule of law and the profession.
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