Dyson Heydon: If it looks like a Milkshake Duck...

Step forward, former justice Dyson Heydon, pillar of the legal establishment, email refusenik and public Christian conservative

It’s just as well an Australian — cartoonist Ben Ward — coined the expression “Milkshake Duck” because it would seem Australia is the first country to evince the phenomenon with someone who isn’t internet famous.

Yes, former justice Dyson Heydon, Milkshake Duck.

Since mid-2016, when Ward came up with the gag (“The whole internet loves Milkshake Duck, a lovely duck that drinks milkshakes! *5 seconds later* We regret to inform you the duck is racist”), Milkshake Ducks usually have been people who become internet famous for some funny or moving statement, only to be revealed by Twitter users’ predilection for cancellation to have done something in the past that makes them — as kids these days say — “problematic”.

I thought Britain had achieved ultimate Milkshake Duck when a touching photograph of an elderly white man wearing a sign saying “Racism is a virus, we are the Vaccine” and a young black woman chatting amiably at a recent Black Lives Matter march in London went viral. The old chap looked like a member of the Greatest Generation, talking about the Blitz or fighting fascism for realsies. The young woman — strikingly beautiful, with elaborately styled hair — could have been his protege. The picture featured on ITV and caromed all over the press. The Great British Public patted itself on the back.

Except the old man in the picture was Jim Curran, a Holocaust denier with anti-Semitic mates on both left and right — everyone from the Palestine Solidarity Campaign to KKK Grand Wizard David Duke. It took the internet less than a day to establish this. Is there a milkshake duck level above Milkshake Duck? I wondered. Custard Goose, perhaps, or Parfait Swan?

Step forward, former justice Dyson Heydon, pillar of the legal establishment, email refusenik and public Christian conservative. You have achieved Parfait Swan, knocking Black Lives Matter and Curran into second place.

As recently as October 2018 — in a long article dedicated to the defence of Christianity’s role in public life — Heydon felt empowered to say the following:

“The advent of Christ revealed different values. He showed a concern for the ill, the socially marginal, the outsider, the destitute. He opposed self-righteousness and hypocrisy. He had no concern to associate with wealth, power or celebrity. His associates were humbler. Many of them were women. He saw little children as heirs to the Kingdom of Heaven. He encouraged a search for the beam in one’s own eye before identifying the mote in someone else’s. He encouraged his followers not merely to love their friends and neighbours but also to forgive their enemies.”

And now we learn — allegations pouring forth across the land, not only from former associates but also members of the Bar, fellow judges and academics at Oxford University — of a pattern of sexual predation and general moral incontinence.

We’re all depressingly familiar with the phenomenon whereby individuals who bask in the eternal sunshine of their spotless virtue turn out to be anything but.

In more recent times it has been male feminists who’ve fallen from grace: their constant declaiming from the rooftops of what a good person they are revealed to be so much eyewash or even a cover for sexual harassment and rape. Harvey Weinstein played this game, ostentatiously attending US feminism’s Women’s March.

Heydon is a reminder of what the world used to be like when it comes to moral signalling — before male feminists, it was god-botherers of various stripes who turned out to be bent as a nine-bob note — with a side serving of the “Bill Cosby effect” as more women come forward, emboldened by those who first went over the top.

Apart from the fact Heydon isn’t in Weinstein or Cosby’s league (something I think must be stated), most people don’t understand what an associate does and how imperilled an individual in that role is to bullying and intimidation. I, too, was once an associate, and what has filled my email in-tray and direct messages in the past week as former colleagues of mine spill the beans would turn many people’s hair white. One young woman was continuously abused not only by her judge but also the secretarial staff (who’d all been there longer than her, of course). A number noted that female judges were often worse than males for reducing associates of both sexes to tears.

“I did not witness sexual harassment but was told by leading members of the Bar the names of the many judges who only ever hire attractive female applicants, so that there was no point (me) applying. There was also a list of female judges that do the opposite with young attractive male associates,” another ex-associate wrote.

That said, he also went on to note that “being a Lothario has no relationship to the quality of your professional work. I would say the judge who I was most impressed with, and who was fantastic both in how he treated litigants and his judgments, was squarely within the only hires big-boobed pretty-faced (associates) category.”

Associateships, especially those at superior courts (High Court; state supreme courts), are enormously prestigious. They amount to a judicial apprenticeship, and traditionally are doled out to people with firsts and a raft of achievements to their name. The relationship is close, even intimate. A talented young lawyer learns rules of court and the law of evidence backwards, how to do legal research with practitioners rather than passing exams in mind, and advocacy skills — all while being paid rather better than articled clerks or trainee solicitors. The judge gets a brains trust for a research assistant and editor.

The hiring process is, however, rather opaque. When I went through the system, I simply sent applications to individual judges whose judgments I’d read and liked. I went to about a half-dozen interviews (all one-on-one, no HR or secretaries in evidence).

There is notoriously no one to whom to complain if the relationship you have with your Judge goes south, something the High Court is now attempting to remedy. I use the capital there advisedly, too: in chambers, a judge is never referred to by his first name or as “Justice So-and-so”. He is always called “Judge”.

I worked for a smart, decent judge (justice Peter Dutney QC of the Queensland Supreme Court), had the benefit of proper advocacy training, and saw so many trials that I was able to put my knowledge of criminal procedure to use when writing Kingdom of the Wicked. If there’s any complaint at all, it’s that Dutney maybe used me to write and edit a fair bit — but then so did senator David Leyonhjelm (and for the same reason). It’d be a shame if new workplace regulation prevented associates from having good experiences like mine.

There’s also the fact Heydon’s behaviour is being described as “an open secret”. Maybe. I went to Oxford with Rachael Collins — one of the alleged main victims — and it never got back to me (lots of other things did get back to me). There are three current members of the High Court bench who overlapped with Heydon. Among those who’ve retired, I struggle to imagine Michael Kirby staying silent. Former chief justice Robert French has disclaimed all knowledge, and I believe him. And yet: I recall Rachael as a “true bill”, a sincere Catholic and person of utmost integrity.

This is why we have to remember — even though it has the imprimatur of the highest court in the land — the internal inquiry that made the initial and I suspect most damning allegations against Heydon was not a court, not subject to the rules of evidence, and conducted by a person who is not a lawyer. The presumption of innocence is still on foot, and he denies the allegations. Surely, now the ACT Director of Public Prosecutions and Australian Federal Police have involved themselves, there will be criminal charges brought. That said, many of the offences — at least as described in newspapers — strike me as summary and likely time-barred.

Meanwhile, scholars such as University of Melbourne law professor Katy Barnett — who specialises in similar legal areas while abjuring “cancel culture” — wonder what this means for Heydon’s historic judgments. “He writes on equity and trusts,” Barnett says. “That’s all about power, for me, and about appropriate exercise of power over the vulnerable.”

More broadly, the problem of people thinking what you do doesn’t matter as much as what you believe is real. It’s simply impossible to advocate a course of conduct if you can’t live up to your own standards. This doesn’t kill off the preachy vegan who wears leather shoes or the public Christian who bangs like a dunny door in a gale — or the idea of veganism qua veganism and Christianity qua Christianity.

It does mean, however, that particular preachy vegan and that particular public Christian have ruled themselves out of public advocacy tout court. They’ve become the hypocritical quintessence of Milkshake Ducks.

Helen Dale won the Miles Franklin Literary Award for her first novel, The Hand That Signed the Paper, and studied law at Oxford. Her most recent novel is Kingdom of the Wicked.