On Monday of this week Dyson Heydon, Rhodes scholar, High Court judge and once-in-a-generation legal mind, joined a fellow silk for lunch at the country’s oldest gentlemen’s establishment, The Australian Club, on Macquarie Street, a short stroll from his Phillip Street chambers.
Heydon knew, by then, that The Sydney Morning Herald was expecting a reply by 4pm about the High Court’s independent investigation into his alleged sexual harassment of six female associates, and allegations of indecent assault in other settings.
But Heydon and his companion gave no indication to fellow diners that his high-toned reputation was about to be shattered. After two bottles of Merlot, the pair departed.
At 3.30pm Hugh Scott from the law firm Speed and Stracey sent a legalistic response to the Herald, emphatically denying all the accusations, on Heydon’s instructions.
Within an hour, the Herald published its expose, giving the lie to the public image of Heydon, the eminent jurist who quotes Trollope and has an encyclopaedic knowledge of the Napoleonic Wars; the man who said, in 2002, that judges need two things above all: “One is a firm grip on the applicable law. The other is total probity”.
Now, Heydon faced headlines which use no honorifics, but instead referred to his reported nickname, Dirty Dyson.
The moniker was first acquired on the Sydney University rugby field in the 1970s and was later re-purposed by Heydon’s colleagues, juniors and students to refer to his alleged propensity to grope and grab the women who crossed his path.
Heydon denied all the accusations through his lawyers, saying: “In respect of the confidential inquiry and its subsequent confidential report, any allegation of predatory behaviour or breaches of the law is categorically denied by our client.
“The inquiry did not afford any opportunity for representatives of the person complained of to confront those complaining or to cross-examine them.
“Our client says that if any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused. We have asked the High Court to convey that directly to the Associate complainants.
“As to the balance of your claims our client denies emphatically any allegation of sexual harassment or any offence.”
In October 2017, Heydon, four-years retired from the High Court, had given a speech at the Australian Catholic University in Adelaide where he lambasted “modern elites”, those “tyrants of tolerance” who “do not feel any gratitude to Almighty God for their entitlements and rights”.
“As the world we are in becomes more attractive, the less need is there for contemplating the possibility of some other more perfect world, and the less adherence there is to a strict morality,” Heydon thundered.
But this call for morality was impossible to square off with the picture that emerged this week, of an alleged opportunistic predator who used his privilege as an invisibility cloak, and wore his judicial purism as a mask.
The reaction to the revelations in the legal community has been “seismic”, according to one top silk at the NSW Bar. “No one did any work today,” she said on Tuesday, when the Herald broke the story.
Prime Minister Scott Morrison called the allegations “very disturbing and very concerning” and former Opposition leader Bill Shorten, who in 2015 was called to appear before the trade unions royal commission Mr Heydon headed, led calls for Heydon to be stripped of his Companion of the Order of Australia.
On Thursday, Heydon’s profile had been quietly removed from the website of Eight Selborne, the chambers that had been his professional home, when not serving on the bench, since the 1980s.
His name was also scrubbed from the website of the Magna Carta Institute, where he had previously been listed as a Governing Committee member.
Questions are now being asked about who knew of Heydon’s alleged misconduct, following the Herald’s revelations that Justice Michael McHugh, and Chief Justice Murray Gleeson, now retired, were both allegedly made aware of one sexual harassment complaint against Heydon while on the court. Mr Gleeson reportedly told The Australian Financial Review that “the accounts relayed to you are false”. Mr McHugh declined to comment on those allegations.
John Dyson Heydon, 77, may not be modern, but he is elite. He doesn’t just belong to the Establishment, he sits at its apex.
His father, Sir Peter Heydon, was private secretary to Robert Menzies, and was a close friend to Sir Owen Dixon, High Court chief justice from 1952 to 1964, and a model of strict legalism the younger Heydon would later emulate.
Sir Peter had an esteemed diplomatic career and met his wife Muriel Naomi during overseas service. Their son John Dyson was born in 1943 in Ottawa, in his mother’s native Canada. Two sisters followed.
Sir Peter’s postings meant his son had a cosmopolitan and peripatetic upbringing, attending seven schools overall, in Canberra, London, Rio de Janeiro and Wellington, before eventually returning to Sydney, where he boarded at the upper-crust Anglican Shore School while his father served as High Commissioner in India. On returning to Australia, his father ascended to become secretary of the Department of Immigration.
“There was a kind of legal atmosphere in the house, there were legal books,” Heydon said of his childhood, during an interview with the ABC’s Richard Aedy in 2013. “It was more or less understood … that I would do Arts/Law at Sydney University.”
And so he did, rooming at St Paul’s College, Australia’s oldest university college. He captained the football and cricket teams, edited the college magazine and helmed the college’s theatrical group, Mummers. He was a brilliant student, winning four prizes, and in 1963 he won a coveted Rhodes scholarship to Oxford University, worth £900 a year. He would study law.
“John said he was ‘feeling fairly nervy’ until the announcement was made,” reported the Herald on October 15, 1963. “‘He at once telephoned his father in Canberra to give the news to the family.”
Years later, in 1980, Heydon would sit on the panel that awarded a young Tony Abbott his Rhodes scholarship, a fact that would come to light when Abbott was prime minister and appointed Heydon to head the controversial Royal Commission into Trade Union Governance and Corruption.
In 1964, Heydon took first-class honours in arts and the Sydney university medal in history, and left for Britain. At some point after that, he dropped his first name, John, and became known by his middle name, Dyson. At Oxford, he played cricket and rugby and won law prizes.
In 1967 he became a fellow of Keble College and upon graduation in 1968, he began lecturing, even doing a stint at the University of Ghana in 1969. In 1973 he returned home to take up a professorship at Sydney University. At 30, he was the youngest-ever law professor in Australia. He was also admitted to the NSW Bar that year. In 1977 he married Pamela and the couple went on to have three daughters and a son.
In 1978 he served as Sydney University dean of law, again, the youngest ever to hold that post, and three years later, he left the university to commence full-time practice at the bar. It took him just eight years to be appointed Queen’s Counsel in 1987.
During his years at the bar Heydon had a famously ascetic work routine, rising at 3.30am to catch the 4.30am train from Turramurra, arriving at his chambers just after 5am. He worked under the gaze of a marble bust of Napoleon and a statue of the Duke of Wellington surrounded by shelves of legal and history books.
He had rooms at Selborne Chambers, where he was one of the “gang of three” who later ended up judges – the others being Roddy Meagher and William Gummow. The latter was best man at Heydon’s wedding to Pamela.
Weekends were spent at the family’s Wild’s Meadow home in the NSW Southern Highlands, which is where his wife Pamela died in 2017, aged 66, reportedly after an aneurysm and a fall down the stairs. Heydon kept the Southern Highlands antique dealers afloat with his purchase of exquisite shelves for his extensive library, contained in a separate building from the main house. It is said to contain some 20,000 books.
Accounts of Heydon’s personality are mixed – to his friends he was a witty mimic, to others his gossip about barristers and judges was malicious and tinged with cruelty. His jokes, as seen in public speeches and toasts, seem often to involve putting down the intelligence of others.
A farewell speech upon his elevation from the Court of Appeal to the High Court lauded his “unrestrained commentary on the idiosyncrasies and inadequacies of members of the High Court”.
Others give tender praise. His former High Court colleague Ian Callinan described Heydon as “the most erudite person I know”, “a man of the highest rectitude and a prodigious worker” and a “man of great humanity”. A speech given at Heydon’s farewell from the NSW Court of Appeal lauded his “quiet, maudlin sense of humour and [his] underlying compassion” and “personal warmth”.
Peter Kurti is a director at the Centre for Independent Studies, and the former rector of St James King Street, the parish church of the Sydney bar. He is friendly with Heydon – for the last few years they have occasionally lunched together at the Australian Club.
Kurti was “dismayed” to read the revelations about Heydon published this week.
“He’s a very private man,” Kurti says. “I have always found him to be a person of great integrity, who wears his vast learning very lightly, somebody whose mind is sharp and acute and very quick to grasp the complexity of problems.”
The one thing no one debates is the brilliance of Heydon’s legal mind. He has written many authoritative books, still used by lawyers and students, including The Restraint of Trade Doctrine and Economic Torts, as well as scores of academic papers.
Heydon’s bar career was suitably distinguished, although he was known more for his fierce intellect than his beautiful oratory. A finding of professional negligence made against him by the NSW Supreme Court in 1999 did not prevent his appointment to the NSW Court of Appeal as a judge in 2000 by Bob Carr’s Labor government.
The Court of Appeal brought in interstate judges to hear Heydon’s own appeal against the professional negligence claim, and it was granted.
The road was clear for higher ascension.
In 2002 he delivered a famous speech at a dinner for the conservative Quadrant magazine, in which he railed against “judicial activism”. He lambasted judges who used their legal pedestal to advance “some political, moral or social program”.
The speech was widely called a “job application” for the soon-to-be-vacant High Court post, although Greg Craven, then law dean of Notre Dame University, called this theory “absolute drivel”.
If it was a job pitch, it worked. A few months later, prime minister John Howard appointed him a judge of the High Court. This week Howard told the Herald in a statement that “Dyson Heydon was an excellent Judge of the High Court of Australia”.
Heydon’s High Court appointment was controversial, and not just because he replaced the one woman on the High Court, Mary Gaudron, returning the seven-member bench to an all-male squad.
In June 2003 The Australian Financial Review raised an eyebrow as it noted a passage the newly-appointed 59-year-old judge had written in the 1984 edition of his seminal textbook, Evidence: Cases and Materials, about evidence given by children. “Children sometimes behave in a way evil beyond their years. They may consent to sexual offences against themselves and then deny consent. They may completely invent sexual offences,” Heydon had written.
The AFR noted that “because the process for selecting judges for the High Court takes place in secret, it may never be known whether the government was aware of Heydon’s views”.
But these were mere quibbles. The new judge was lauded.
“It has been said about Your Honour that you have always taken on a workload that should have been outlawed by some post-Dickensian Factory Act,” joked then-attorney-general Daryl Williams at Heydon’s swearing-in.
Bret Walker, SC, recalled attending Heydon’s lectures at Sydney University. “There was no pretence on your honour’s part that there was any intellectual, cognitive, academic, scholarly or legal equality of interchange between lecturer or lectured,” Walker laughed.
The Great Dissenter
While on the High Court, Heydon developed a public reputation for being a judicial loner, with his rate of dissent increasing as time went on. He wrote his own judgments, even when he concurred with his fellow judges, partly because he thought their grammar was lacking. He was called the Great Dissenter.
Privately, he had a different reputation. Heydon began harassing his young female associates, according to the High Court inquiry conducted by independent consultant Vivienne Thom.
High Court associateships are treasured prizes among law graduates, an opportunity to be mentored by a great legal mind, and a jewel in the CV that sets the young person on a path to a brilliant career.