Dyson Heydon, Bettina Arndt, George Pell. The list of Order of Australia luminaries under a cloud has been banking up with no resolution in sight.
Given that the power of the governor-general to terminate whole governments has been in the news of late, Inq is taking a case by case look at what powers exist to cancel an Order of Australia.
Governor-General David Hurley has wide discretion to terminate an honour without fear of it being challenged in the courts. There’s just one catch: the governor-general would be taking on people with powerful friends in conservative politics.
Dyson Heydon AC
Dyson Heydon was appointed to the High Court by the Howard government and served on the bench from 2003 to 2013. He was made a Companion of the Order of Australia (AC) in 2004. The AC is awarded for “eminent achievement and merit of the highest degree in service to Australia or humanity at large”.
The case: An independent investigation ordered by High Court Chief Justice Susan Kiefel (AC) found six former judges’ associates were sexually harassed by Heydon. Kiefel said the findings were “of extreme concern to me, my fellow justices, our chief executive and the staff of the court”. They were “ashamed”, she said.
State of play: The Council of the Order of Australia won’t say whether or not it is looking into Heydon’s award, though Prime Minister Scott Morrison said there would be a “proper formal process” to address “those allegations”.
George Pell AC
Then-archbishop of Sydney George Pell received his AC in 2005, also under the Howard government, for services to the Catholic church and “raising debate on matters of an ethical and spiritual nature to education and social justice.”
The case: The Royal Commission into institutional Responses to Child Sex Abuse found Pell’s denials on what he knew of child sex abuse “implausible” and “not tenable”. The Commission found that as far back as 1973 Pell was “not only conscious of child sexual abuse by clergy” but had also “considered measures of avoiding situations which might provoke gossip about it”.
The findings were made public in May this year after Pell was cleared of charges of child sex abuse. Pell also signed off on the so-called Ellis defence, a now-scrapped piece of legal trickery which had the cruel effect of putting the Church’s assets outside compensation claims brought through the courts.
State of play: The Council of the Order of Australia won’t say if it is looking into revoking Pell’s award. The council, it said, “does not comment on individual cases”.
Bettina Arndt AM
Bettina Arndt was given the mid-tier Member of the Order of Australia (AM) award on Australia Day 2020 for “significant service to the community as a social commentator, and to gender equity through advocacy for men”.
The case: All sides of politics bar One Nation called for Arndt to be stripped of her award after she appeared to publicly make excuses for a man who murdered his former partner and their children in Brisbane.
State of play: Six months on, the Council is still considering.
What could the governor-general do?
As we reported in June more than 40 people have been stripped of their honours in the 45-year history of the awards, almost all because of criminal or civil convictions.
Yet a close reading of the constitution of the Order of Australia reveals there are grounds apart from a court conviction and that the governor-general has great discretionary powers at his disposal.
1. If “a court, tribunal or other body exercising judicial or administrative power” has made an adverse finding on the person.
The Royal Commission findings on Pell would seem to apply here, though it is less clear cut in the case of Heydon. According to Crikey’s legal expert Michael Bradley, the High Court’s “independent investigation” is an administrative process only.
“The outcome has validity within the context for which it was made. It has no status outside of that, either way,” he said.
2. If “in the opinion of the governor-general” a person has behaved or acted “in a manner that has brought disrepute on the order”.
This conceivably applies to Pell, Arndt and Heydon. In Heydon’s case, Prime Minister Scott Morrison described the findings of the High Court’s investigation as “very disturbing and very concerning”.
At the same time, though, he referred to them not as findings but as “allegations”.
Michael Bradley’s opinion? “The GG can take the investigation’s findings as a sufficient basis for determining that Heydon has brought the order into disrepute, which would require him to accept that those findings are justified.
“The fact that Heydon hasn’t brought any challenge to the findings makes it difficult for him to argue that they should be ignored (his lawyers’ claims that he was denied procedural fairness are baseless anyway).”
3. If the governor-general is satisfied it “would not have been desirable” to make the award if he had known information that was not available when the decision was made (“whether or not the information existed when the decision was made”).
This “if I knew then what I know now” clause gives the governor-general enormous scope.
Would the governor-general have given Pell the highest award in the land in 2005 had he known Pell had helped the Catholic Church’s cover up of child sex abuse, as the the royal commission effectively found he had?
Would the governor-general have awarded Heydon an honour in 2004 had he known Heydon had begun harassing female staff by that time?
Would the the governor-general have given an award to Arndt after she offered a public excuse for a man who violently killed his family?
It’s up to the governor-general, and there’s likely no appeal
According to Bradley, the governor-general can act with advice from the Council of the Order of Australia “and conventionally would do so”.
The council is a 19-person body chaired by Tony Abbott-appointee and senior Liberal figure Shane Stone (an AC, among many other titles).
“But the GG can also act on his own volition. His discretion isn’t affected by the Council’s advice,” said Bradley.
What’s more, it appears that, unlike decisions of executive government, there is no legal provision to appeal the governor-general’s decision should Pell, Heydon or Arndt object. An awardee has 30 days to respond to a notice that the GG intends to cancel their award but there is no avenue given for judicial review.
The granting of an Order of Australia honour is “a prerogative of the crown, exercising a power [the Queen’s] granted herself under the terms of the instrument by which she created the order,” says Bradley. “She’s delegated the power to the GG but it’s still hers.”
So will the governor-general act free of political influence, to help restore the honour of Australia’s honours? How can the order otherwise reclaim its lost moral authority?
Much is made of Governor-General David Hurley’s integrity, encapsulated in the statement — repeated by another military man, retired lieutenant general David Morrison AO — that “the standard you walk past is the standard you accept”.
It remains to be seen if this standard applies to cardinals, High Court judges and culture warriors.
Next: how Indigenous Australia was erased from the Order of Australia