Dyson Heydon

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The Honourable Justice
John Heydon
AC QC
Heydonjustice.jpg
Justice of the High Court of Australia
In office
1 February 2003 – 28 February 2013
Nominated by John Howard
Appointed by Peter Hollingworth
Preceded by Mary Gaudron
Succeeded by Patrick Keane
Royal Commissioner of the Royal Commission into trade union governance and corruption
Assumed office
13 March 2014
Nominated by Tony Abbott
Appointed by Quentin Bryce
Personal details
Born (1943-03-01) 1 March 1943 (age 72)
Ottawa, Canada
Nationality Australian
Parents Muriel Heydon (née Slater)
Sir Peter Heydon
Alma mater
Occupation Barrister, Judge, Academic

John Dyson Heydon AC QC (born 1 March 1943) is a former Justice of the High Court of Australia, the highest court in the Australian court hierarchy, who served from 2003 to 2013. A graduate of the University of Sydney and the University of Oxford (attending the latter as a Rhodes Scholar), Heydon had previously served as Dean of the Sydney Law School and as a Justice of the New South Wales Court of Appeal. He retired from the court at the constitutionally mandated age of 70, and has gone on to chair the Royal Commission into trade union governance and corruption.

Early life[edit]

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, had met his mother (a Canadian) while both were on the staff of Richard Casey, the Australian Ambassador to the United States.[1] 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. 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.[2]

A fellow of Keble College, Oxford, teaching public international law in the early 1970s, Heydon 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 was appointed a Queen's Counsel (QC) in 1987.[3] In 1999, the Supreme Court of NSW found Heydon negligent in the advice he had given to the NRMA in 1994 concerning its demutualisation. This was overturned on appeal.[4][5]

Heydon is also a legal scholar[6] and, with Sir James Gobbo and David Byrne, co-authored the second Australian edition of Cross on Evidence in 1980 and became sole author of subsequent editions. He has also written The Restraint of Trade Doctrine and has taken over from his former colleague William Gummow as one of the editors of Meagher, Gummow, and Lehane's Equity: Doctrines and Remedies.[citation needed]

Judicial career[edit]

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.[7] His appointment to the High Court, by the Howard Government, was met with some disapproval, as he was replacing the only female justice at the time, Mary Gaudron. The court was then all-male (for the first time since 1987) until the appointment of Susan Crennan in November 2005.[8]

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.[9] 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 "The Great Loner" of the court.[8] 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).[10]

Post-judicial career[edit]

After standing down from the High Court, Heydon gave a speech to the free-market think tank Centre for Independent Studies in June 2013. Speaking about a new law on charities, he asked, "Is it an illustration of the fact that the tendency of the Rudd government to do non-substantive things like make speeches, and appoint committees and hold summits and so forth, survived even after Mr Rudd ceased to be prime minister?"[11][12]

Royal Commissioner[edit]

On 13 March 2014 Heydon was appointed as the sole Royal Commissioner to lead the Royal Commission into trade union governance and corruption on the recommendation of the Abbott Government.[13][14] The Royal Commission is due to submit its final report to the Governor-General by 31 December 2015.[15]

Heydon handed down the Commission's interim report in December 2014[15] 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 a number of other senior CFMEU officials in Queensland and New South Wales for activities that included death threats, extortion, gross neglect, and other "serious criminal matters".[16][15] The Age reported that "Justice Heydon identified key concerns about the use and operation of union election slush funds..."[17]

As Royal Commissioner, Heydon 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 a former 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. Heydon agreed with counsel assisting Jeremy Stoljar's submission, that her conduct as a solicitor had been "questionable". The report recommended seven past and present Health Services Union officials should be considered for charges for their role in an alleged right of entry scam... .[17]

Bill Shorten, the Leader of the Opposition, gave evidence before the Royal Commission in relation to his time as National Secretary of the AWU. During Shorten's appearance before the Commission, Heydon interjected, stating "If I can be frank about it, you have been criticised in the newspapers in the last few weeks and I think it’s generally believed that you have come here in the hope you will be able to rebut that criticism or a lot of it. I’m not very troubled about that, though I can understand that you are, and it’s legitimate for you to use this occasion to achieve your ends in that regard. What I’m concerned about more is your credibility as a witness … and perhaps your self-interest as a witness as well."[18][19]

Application for recusal[edit]

During his term as Royal Commissioner, Heydon was invited to deliver the 6th Sir Garfield Barwick Address, a fundraising event organised by a branch of the Liberal Party,[20][18][21] on the assumption that the Commission would have completed its inquiries. Heydon confirmed his availability to give the address.[22] The Abbott government extended the term of the Royal Commission in October 2014,[23] and when Heydon was reminded of the address in March 2015, he confirmed his ongoing interest.

Heydon later declared that he "overlooked" the fact that the event is organised by the Liberal Party, and that he had been asked to give the address only if the Royal Commission had finished. Heydon said "I overlooked the connection between the person or persons organising the event and the Liberal Party which had been stated in the email of 10 April of 2014," and said "I also overlooked the fact my agreement to speak at that time had been conditional on the work of the commission being completed before that time."

On 14 April 2015,[24][25][26] the NSW Bar Association announced that Heydon would deliver the 6th Annual Sir Garfield Barwick Address.[27] Heydon was sent information about the event on 12 June 2015, with attachments declaring the event a Liberal Party fundraiser.[28] Heydon stated that he did not read the attachments.[29] It was later agreed that the Liberal Party would not be mentioned on advertisements in public Bar Association publications.[30] On 13 August, journalists obtained flyers for the event, announcing that it was a Liberal Party fundraiser.[31]

Heydon's assistant confirmed on 13 August at 9:23 am that Heydon would attend, saying "He does not wish to answer any questions after his address. If there is any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of the Royal Commissioner." Fairfax Media reported that they contacted the commissioner's office at 9:35 am.[32] A spokesman for Heydon said that he made a decision not to attend the fundraiser, but this was before being contacted by the media about the Liberal Party flyers. Heydon adjourned the royal commission when the invitation came to public light, saying "Another problem has arisen that I need to attend to."[33]

There were calls later that day from Labor parliamentarians for Heydon to withdraw from the Royal Commissioner role on the grounds of the appearance of bias, reiterating earlier allegations of the political intent of the commission, while Prime Minister Tony Abbott defended Heydon's role and the justification for the Royal Commission.[34] Abbott said that "Someone who knows [Heydon] very well and who's no great friend of this government Julian Burnside QC, has said this morning that he's a man of honour".[35] Burnside said "Heydon is an honourable man. I give him the benefit of the doubt. Maybe he is honourable enough to step down."[35]

On 17 August 2015, The Sydney Morning Herald reported that Heydon was on the panel that awarded Tony Abbott his Rhodes scholarship.[36]

On 21 August 2015 the ACTU, AWU and CFMEU all made applications in the Commission for Heydon to step down.[37][38] Heydon, who has heard submissions on his suitability to preside over the Royal Commission, announced he would determine the outcome of the calls to disqualify himself from the inquiry on 28 August, although his ruling was postponed following the ACTU requesting further documents referred to in an article in The Australian newspaper.[39]

On Monday 31 August, Heydon dismissed the applications for him to stand down, publishing his reasoning on the royal commission's website.[40] In a 208-paragraph ruling,[41] Heydon rejected the contentions that there was anything in his acceptance of the invitation to give the Sir Garfield Barwick Lecture which gave rise to a reasonable apprehension of bias. The decision included the following statement:[42]

'...the applicants have not articulated why, and there is no rational basis for concluding, that a fair-minded observer might, acting reasonably, apprehend any predisposition against the Labor Party or the unions in a speaker who merely agrees to give a legal speech at an event with the characteristics last described. 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. The point is demonstrated by the facts and reasoning in Helow v Home Secretary [2008] 1 WLR 2416, where it was held that the fact a judge was a member of an international association of Jewish lawyers did not have the consequence that the judge should be taken to endorse every view or opinion expounded by that association. On the legal argument presented by the applicants, given the highly political nature of the matters which can come before the courts, no sitting judge could give a legal lecture to an organisation which has a political affiliation. Yet many distinguished judges have done so in the past without qualms on their part and without being subject to any reasonable criticism. This must immediately place a serious question mark over the applicants’ legal argument.'

Judicial philosophy[edit]

Heydon was known as a conservative judge, and has spoken out against what he terms "judicial activism".[43] His publicly expressed views, made while a New South Wales judge, were described by contemporaneous commentators as a "job application"[44] for appointment to the High Court by the government of Liberal Party Prime Minister John Howard.[7][45] Heydon did not join any majority decision in his last year on the High Court, and in a 2013 Law Quarterly Review article called for judicial individualism, arguing "compromise is alien to the process of doing justice according to law".[46][47][48][49]

References[edit]

  1. ^ 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 
  2. ^ "NSW Rhodes Scholars 1904—2009". The University of Sydney. Retrieved 6 March 2012. 
  3. ^ Richard Ackland. "Judging Dyson Heydon"The Saturday Paper, 22 August 2015. Retrieved 26 August 2015.
  4. ^ "Heydon v Nrma Ltd & Ors; Bateman & v Nrma Ltd & Ors; Morgan & Ors v Nrma Ltd & Ors [2000] NSWCA 374 (21 December 2000)". AustLII. 
  5. ^ Banham, Cynthia (18 September 2002). "Heydon appointed High Court judge". The Sydney Morning Herald. Australia. 
  6. ^ "Transcript of the Ceremonial Swearing in of Heydon J [2003] HCATrans 562". AustLII. 
  7. ^ a b "Justice Heydon appointed to High Court" (transcript). AM (ABC Radio) (Australia). 18 December 2002. Retrieved 11 February 2010. 
  8. ^ a b John Barron (19 August 2015). "Dyson Heydon: Who is the royal commissioner being urged to resign over Liberal links?" – ABC News. Retrieved 26 August 2015.
  9. ^ "Justice Heydon triples his dissent rate for 2011". Timebase. Australia. 12 August 2011. Retrieved 21 October 2011. 
  10. ^ Michael Pelly (19 October 2012). Heydon The Great Loner pens his legacyThe Australian. Retrieved 26 August 2015.
  11. ^ "Dyson Heydon slammed Rudd, Gillard governments as 'non-substantive' in 2013 speech". Sydney Morning Herald. 19 Aug 2015. 
  12. ^ Graham Richardson (21 August 2015). "Dyson Heydon’s past behaviour fails the smell test". The Australian. The attacks made by Heydon on the Gillard and Rudd administrations in a speech delivered two years ago were harsh and hard. Many Australians would agree with them — but all Australians with the merest hint of fair-mindedness in them would also agree they were clearly partisan. 
  13. ^ Abbott, Tony; (Prime Minister); Brandis, George; (Attorney-General); Abetz, Eric; (Minister for Employment) (10 February 2014). "Royal Commission into trade union governance and corruption" (Press release). Canberra: Commonwealth of Australia. Retrieved 10 February 2014. 
  14. ^ "Letters Patent" (PDF). Royal Commission into trade union governance and corruption. 13 March 2014. 
  15. ^ a b c "Homepage". Royal Commission into Trade Union Governance and Corruption. Retrieved 18 August 2015. 
  16. ^ "Interim Report" (PDF). Royal Commission into Trade Union Governance and Corruption. December 2014. Retrieved 18 August 2015. 
  17. ^ a b Schneiders, Ben; Patty, Anna (19 December 2014). "Royal commission takes aim at CFMEU, recommends charges against senior officials". The Age. 
  18. ^ a b "Trade Union Royal Commission: Justice Dyson Heydon withdraws from Liberal fundraiser". News.com.au. 13 August 2015. 
  19. ^ Rapana, Jessica (9 July 2015). "Bill Shorten union royal commission: live updates". The Australian. Retrieved 28 August 2015. 
  20. ^ https://media.crikey.com.au/wp-content/uploads/2015/08/heydon1.png
  21. ^ "Sir Garfield Barwick address attracts a bevy of Liberal luminaries". The Sydney Morning Herald. 13 August 2015. 
  22. ^ "Unions to decide in 24 hours on push to remove Dyson Heydon". Australian Financial Review. 17 August 2015. 
  23. ^ Wroe, David (7 October 2014). "Abbott government extends royal commission into trade unions". Sydney Morning Herald. 
  24. ^ "For the diary: Sir Garfield Barwick Address". 14 April 2015. Archived from the original on 13 August 2015. The 6th Annual Sir Garfield Barwick Address will be delivered by the Hon Dyson Heydon AC QC at a dinner to be held at the Castlereagh Boutique Hotel, 169 Castlereagh Street, Sydney on Wednesday, 26 August 2015, at 6.00pm for 6.30pm. 
  25. ^ "Labor demands Dyson Heydon resign as union royal commissioner". AFR. The event has been organised since April 14, although Dyson Heydon was initially invited several years earlier, and sources said the NSW Bar Association was alerted only on Wednesday night about the possible conflict. Just hours later, Justice Heydon pulled out. 
  26. ^ Bourke, Latika (17 August 2015). "Dyson Heydon was sent Liberal Party fundraising flyer months before he cancelled speech". Sydney Morning Herald. 
  27. ^ "Dyson Heydon and the long Liberal Party history of the Garfield Barwick address". Australian Financial Review. 14 August 2015. 
  28. ^ https://media.crikey.com.au/wp-content/uploads/2015/08/heydon2.png
  29. ^ Anna Patty (17 August 2015). "Royal commissioner Dyson Heydon claims he 'overlooked' connection to Liberal Party". Sydney Morning Herald. 
  30. ^ "Royal commissioner Dyson Heydon took 24 hours to withdraw from Liberal fundraiser". The Sydney Morning Herald. 
  31. ^ "Labor calls on union corruption royal commissioner to resign over Liberal links". ABC News (Australia). 13 August 2015. 
  32. ^ "Union corruption royal commissioner Dyson Heydon billed as star of Liberal Party fundraiser". The Sydney Morning Herald. 
  33. ^ "Unions royal commissioner Dyson Heydon to pull out of Liberal party fundraiser amid Labor backlash". Nine news. 13 August 2015. 
  34. ^ "Tony Abbott digs in to defend Dyson Heydon over Liberal party fundraiser". Guardian Australia. 
    "Trade union royal commissioner Dyson Heydon billed to speak at Liberal fundraiser". Guardian Australia. 13 August 2015. 
  35. ^ a b "Lawyer who Tony Abbott relied on to defend Dyson Heydon actually says royal commissioner should quit". Sydney Morning Herald. 14 Aug 2015. 
  36. ^ Health Aston (17 August 2015). "Dyson Heydon was on panel that awarded Tony Abbott his prized Rhodes Scholarship". Sydney Morning Herald. 
  37. ^ Benns, Matthew (22 August 2015). "Unions say Royal Commissioner Dyson Heydon should stand down due to being ‘partisan against ALP’". The Daily Telegraph (Australia). Retrieved 28 August 2015. 
  38. ^ Bourke, Lattika (19 August 2015). "ACTU confirms it will move to have Dyson Heydon disqualified at the unions royal commission on Friday". The Sydney Morning Herald. Retrieved 28 August 2015. 
  39. ^ Hurst, Daniel (27 August 2015). "Dyson Heydon again delays ruling on union commission amid tip-off claims". Guardian Australia. Retrieved 28 August 2015. 
  40. ^ "Trade Union Royal Commission: Dyson Heydon stays on as Commissioner". The Sydney Morning Herald. 31 August 2015. Retrieved 31 August 2015. 
  41. ^ Heydon, Dyson (31 August 2015). "Reasons for ruling on disqualification application" (PDF). Royal Commission into trade union governance and corruption. Retrieved 31 August 2015. 
  42. ^ "Reasons for Ruling on Disqualification Application dated 13 August 2015" (PDF). The Hon Dyson Heydon AC QC (Australia). 31 August 2015. Retrieved 30 January 2016. 
  43. ^ 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). Retrieved 28 August 2015. 
  44. ^ "The dicing of Heydon's job application". Justinian. 16 February 2004. Retrieved 3 September 2011. 
  45. ^ Heydon, Justice Dyson (7 April 2003). "How judicial activism results in the death of the rule of law in Australia". Online Opinion. Retrieved 11 February 2010. 
  46. ^ "Push for judicial individualism admirable". UNSW Newsroom. 
  47. ^ Rosalind Dixon; George Williams (29 March 2015). The High Court, the Constitution and Australian Politics. Cambridge University Press. p. 67. ISBN 978-1-316-27678-5. 
  48. ^ "LawCite". austlii.edu.au. 
  49. ^ "Dyson Heydon's extreme view of judicial independence on display". The Sydney Morning Herald.