Former High Court judge, outspoken conservative and (according to the High Court itself) sexual harasser “Dirty” Dyson Heydon AC is obsessed with “probity”. In a 2002 speech, he used the term — meaning “the quality of having strong moral principles, honesty and decency” — several times:
It is largely judges, not jurors, who now decide disputes. In fulfilling that task, judges … need two things above all. One is a firm grip on the applicable law. The other is total probity.
Yesterday afternoon it was revealed that the married father of four had been found to have sexually harassed six young female judges’ associates (claims he’s denied through his lawyers).
These highly-prized positions are held by the cream of the crop of recent graduates.
(Heydon, once described by legal journalist Richard Ackland as looking like “Methuselah, with parchment flesh” got the nickname “Dirty Dyson” when he played rugby at Oxford, supposedly for always leaving the playing field covered in mud.)
According to The Sydney Morning Herald, High Court Chief Justice Susan Kiefel apologised to the young women after an independent inquiry in 2019 upheld all their claims against Heydon. The 77-year-old former Rhodes Scholar has denied the allegations but apologised if any of his conduct has caused offence. More women have contacted the SMH to add their stories to the scandal.
The issue for legal scholars and the general public is: does the former judge’s behaviour and character change how we view his judgments?
In his 2002 speech he said that “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 practice it may be assumed that very few judges are consciously biased.”
Can’t we now assert that Heydon does not see women as his equal, and therefore he is biased against them?
It is a fundamental principle of law that the mere appearance of bias is sufficient to overturn a judicial decision: “justice must not only be done, it must be seen to be done”. In a 2013 interview, Heydon said his view was that a man should not be prosecuted for sexually assaulting his wife in the 1960s.
“No one in 1962 thought rape was a crime … it’s a fundamental principle that not even parliament should enact criminal laws which are retrospective,” he said in the interview, given to mark his retirement from the High Court.
In “Australian Feminist Judgments, Writing and Rewriting Law”, a group of distinguished feminist legal scholars looked at whether the gender of judges makes a difference.
They concluded that “being a woman” could have at least some influence on the decision making process.
“Individuals who have experienced a form of discrimination are likely to have a different view of the impact of discrimination; if they have experienced raising children they may have a different view of workplace demands or if they have felt fear of the threat of random violence when making their way home from work they may view victims of crime in a different way.
“It may also be true that even without those personal experiences, women know how women are more likely to react or behave in a given situation and so can bring a different perspective to bear to the judicial process.”
Academics don’t study what it means to be a male judge, of course, because that is the default position.
Feminist legal scholar Dr Kcasey McLoughlin wrote a paper about judicial diversity and the High Court in 2017.
In it, she says that “appointments that undermine the homogeneity of the court are steps in the right direction in disrupting the notion that judging is the preserve of men … And then, for feminists, there might even be more space to think about strategies for securing the appointment of judges who are not only aware of the importance of equality and the gendered nature of law, but also, willing and able to articulate that awareness.”
Heydon commenced his 2002 speech, to the old white males of Quadrant magazine, with the statement that “the rule of law operates as a bar to untrammelled discretionary power”.
For the sake of all the women who have been harassed by an officer of the most senior court in the land, let’s hope that is the case.
NOTE: This article has been updated to clarify when and where Heydon commented on sexual assault in the 1960s.