Former high court justice Dyson Heydon (Image: AAP/Joel Carrett)

What, you’re surprised that The Australian is running a full scale defence of Dyson Heydon?

He is a white (tick), conservative (tick), powerful (swoon, tick) man (duh) who’s been accused of serial sexual offending (come in spinner).

From Heydon himself, via his lawyers, a denial of any wrongdoing, expression of regret for any misunderstandings and some passive-aggressive jabs at the legal process by which his reputation was undone.

Heydon has no obligation to front the media. He will apparently be dragged into legal proceedings, as three of the alleged victims have said they will be suing for sexual harassment.

According to his defenders, the opportunity to face his accusers is exactly what Heydon wants, should get and has been denied so far. In the absence of that, they say, he has been denied justice altogether.

A number of other things are being said: the investigation that found his six accusers to be telling the truth was carried out without the benefit of his evidence (which he chose not to give); the investigation was conducted by a “public servant”, not a lawyer; it was an administrative process only, not a legal one. Consequently, nothing conclusive can be taken from what has happened and been reported. He has not been proven guilty of anything, therefore we are obliged to presume his innocence. Otherwise, we are just burning him at the stake.

Wrong. Here’s where things really stand.

The starting point is a complaint, made by two former associates to their employer at the time, the High Court, that they had been sexually harassed by Heydon.

Following some negotiations with the complainants’ lawyers regarding its terms of reference, Chief Justice Susan Kiefel established an independent investigation of the complaints and appointed former inspector general of intelligence and security Vivienne Thom to conduct it.

Thom interviewed the complainants and other witnesses, put the allegations directly to Heydon and allowed him opportunity to respond.  She then formed her conclusions on her assessment of the evidence, and reported her findings to the chief justice. As reported, Kiefel then issued her public acceptance of the findings, acknowledging that the court believed the complainants to be telling the truth, and apologised to them for the court’s failure to protect them.

That is a textbook case study of how an employer should deal with allegations of this kind. It is critical to understand this: sexual harassment, under Australian law, is not a crime. It is a civil wrong, creating a cause of action on which the victim can sue for compensation. The conduct involved could be a crime as well, but not necessarily.

It may potentially have other consequences for an employer, as they may have failed to provide an adequately safe workplace. That, however, is disconnected from the victim’s rights.

In the employment context, when an employer is faced with an allegation of this kind, it cannot simply call the police and wash its hands of the matter. Its responsibility is triggered immediately and will not be satisfied until it has appropriately dealt with and resolved the allegation within the context of the workplace and employment relationship. That means that it must investigate.

Independence and impartiality are essential to an effective investigation. That’s why this one was outsourced. It is not a judicial process, and has nothing to do with crime. It is administrative, but that does not make it non-legal nor its consequences non-meaningful.

The employer must determine whether the allegations are true. The investigation’s purpose is to provide that answer. The evidence must be collected and weighed, and a conclusion reached on the balance of probabilities. From that, consequences follow.

While it is true that Heydon has not been found guilty beyond reasonable doubt of committing any crimes and is entitled to the presumption of innocence in that respect, that has relevance only to the allegations of actual criminal offending that have arisen. Most of what has been alleged and reported falls short of a crime, and will never be tested in a criminal court.

What has been determined so far, by an independent umpire, is that Heydon sexually harassed six young women in the workplace. That doesn’t mean he did it for sure, any more than a jury’s verdict would. The law delivers answers to contested questions, not objective truth. The force of those answers is contextual.

Here, the context is the workplace of the High Court and nothing more. Within that, the question of whether those six women were victims of sexual harassment has been answered conclusively and the consequences have been delivered.

If the victims want further vindication of their allegations and other consequences such as damages, then they have to pursue them in a different context. If the alleged victims want the law to prove them right, then that will be a matter for police complaint, investigation and prosecution.

Heydon has not been denied anything. He chose not to participate in the workplace investigation and he’s stuck with the consequences of its conclusion. There are plenty of other places and times in which aspects of this mess can still be fought out, and he remains free to take those on.

To the suggestion that his reputation has been shattered: yes it has.

But that is because he has been found, following a due and fair process, to have done things that deserve exactly that result.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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