How one of our finest legal scholars was cancelled in the court of #MeToo
Dyson Heydon was not accused of sexual assault, or pedophilia, or gruesome serial murders. Nonetheless, his grave punishment came in fast and furious as progressives sought not only his cancellation, but his obliteration.
A senior judge strolling down York Street in Sydney’s CBD in late February stopped at the window display of Abbey’s Bookshop, Sydney’s famous bookstore. Its No.1 bestseller for nonfiction was not a self-help guide to awaken your truth. Nor was it Michael Lewis’s book about the undoing of democracy. No.1 was Heydon on Contract: Particular Contracts by former High Court justice John Dyson Heydon.
The book, with a price tag of $250, had dropped to second place by the time it was launched at the State Library of NSW in March a few weeks later.
For many years to come, judges, lawyers and law students will benefit from Heydon’s scholarly masterpieces explaining the intricacies of contract law. This latest one is the second volume to his 2019 Heydon on Contract: The General Part.
While many in the legal profession will know at least parts of the story behind the publication of Heydon’s latest volume, it deserves a wider audience.
This is not about a book on contract law. This story concerns the darker instincts of many who mistakenly call themselves “progressive”. To describe their efforts as trying to “cancel” the former High Court judge does not capture the wickedness. Their aim was the obliteration of Dyson Heydon.
In 2020, High Court Chief Justice Susan Kiefel released a statement following an investigation by Vivienne Thom finding Heydon sexually harassed six judges’ associates at the court. Heydon did not take part in the investigation. He has denied the allegations.
Still, if Heydon did engage in harassment, the question became: What should be his punishment? Some appear intent on obliterating in perpetuity Heydon’s legal legacy. It is fortunate that they failed, and that most people do not think as they do.
Former High Court justice Michel Kirby is a legal lion, especially beloved on the left. Scorecards of the High Court’s most “liberal” judges – not Liberal but left-wing liberal – rank Kirby at the top.
Kirby penned the foreword to a book written by one of the High Court’s most unwavering legal conservatives. Words like “magisterial” and “fastidious” and “mastery” leap from these early pages of the book. Heydon’s two volumes on contract “may well be judged as the author’s greatest gift to legal exposition and analysis”, writes Kirby.
In India this week chairing a big international commercial arbitration, Kirby tells Inquirer: “Heydon is a brilliant man with a special talent for synthesising thousands of judicial cases into short, understandable concepts. In the common law system this is a very precious gift.” Heydon’s contract books are invaluable to lawyers who “lack the time or mental inclination or ability to undertake conceptualisation”.
Kirby says he took “mischievous pleasure” in writing the foreword, for the two legal luminaries disagree over many legal issues, including whether the great many and often unruly sources of contract law should be codified for simplicity into a set of principles by parliament – just as India has done.
“I prefer this methodology,” Kirby says, while “Heydon profoundly disagrees … this probably sounds pretty esoteric … But such are the intellectual contests that occupy High Court judges, current and retired.”
The profound respect is captured by Kirby, noting at the end of the foreword that these two volumes “may help to administer the quietus to any lingering dreams of a code of Australian contract law”.
Kirby does not shy away from the scandal that enveloped Heydon.
“As for whatever Justice Heydon may have done (if anything) that redounds to his personal discredit, I leave that to others. He has not been found guilty, after due process, by a judge and jury,” he says.
“My father was a very wise man. He raised his children in the basic Christian traditions of forgiveness and reconciliation. I continue to live my life according to his principles.”
Heydon was not accused of sexual assault, or pedophilia, or gruesome serial murders. Nonetheless, grave punishment came in fast and furious. In her public statement, Kiefel spoke of “the court” being ashamed and “we have made a sincere apology” to the women.
It is rarely noted that Kiefel was speaking on behalf of an employer. Her pronouncements that day were not judicial. But it must have been obvious to the court that her statement would be treated that way. Perhaps that is why, as Inquirer has been told, the High Court at the time was not entirely in support of Kiefel’s statement.
Soon after, Heydon’s publisher Thomson Reuters cancelled all contracts with him. The legal publisher still refuses to publish a second edition of Heydon’s first book on contract – despite high demand for the book. Second-hand copies cannot be located for love or money.
Thomson Reuters did not respond to questions but Inquirer understands the publisher will not licence the copyright to Heydon so that he may seek other avenues for a second edition.
In another shameful chapter to this story, Heydon has been denied access to the law libraries at our courts. Federal Court Chief Justice Debra Mortimer made it clear she did not want Heydon visiting the Federal Court.
Though he was forced to self-publish his second volume on contract law, many people helped to get his most recent book into Abbey’s window display – law students, senior lawyers, barristers, judges, other people in full-time jobs typing chapters after hours and in their holidays.
Heydon chose not to speak to Inquirer for this piece. Nor did distinguished Melbourne King’s Counsel Allan Myers, who launched Heydon’s book in March.
But Inquirer has been told by others that Myers did not mince words, describing the book as a “heroic achievement” and taking aim at Kiefel and Thomson Reuters. Myers used heroic in the Homeric sense. Just as Homer’s heroes faced interference from the gods of Mount Olympus who mirrored “vices and vanities” of mere mortals, so it was for Heydon, forging ahead alone, against the odds and as the controversy exploded, to complete his legal magnum opus.
Heydon’s previous book on contract is frequently cited by our most senior judges. Myers expressed confidence that would continue with the latest volume.
Kirby attended the launch too, along with many other eminent judges and lawyers. The tremendous turnout, a mark of respect for Heydon, included former High Court judges Ian Callinan and Virginia Bell, Acting Chief Justice Julie Ward of the Supreme Court of NSW, Justice Mark Leeming (NSW Court of Appeal), Justice Elisabeth Peden (Supreme Court of NSW), Federal Court judges Michael Lee and Ian Jackman, former chief justice of the Federal Court James Allsop, former NSW Court of Appeal justice Tony Meagher, former justices John Sackar and Carolyn Simpson from the NSW Supreme Court and former Federal Court justice Peter Jacobson.
No one with an ounce of logic or goodwill could have anticipated what followed, or comprehend the desire in some quarters to repeat the worst excesses of the #MeToo movement.
Legal academic Gabrielle Appleby described the “re-embrace of Heydon” at the book launch as a “kick in the guts for women”. Writing in a Nine newspaper, the vociferous supporter of the voice pointed the finger at Abbey’s Bookshop for hosting the launch.
A quick call to the store would have revealed Abbey’s did not host the launch of Heydon’s book. But if it did, what on earth is wrong with a bookshop launching its top-selling book?
Appleby’s outrage was not yet spent. “As I understand, Heydon has also recently attended, at the invitation of a sitting judge, Sydney’s Federal Court building for Friday night drinks. Lawyers Weekly reports its own rumours: it has heard the Law Society has allowed Heydon ‘free access’ to its library for ‘several months’, despite not being a member.”
Professor Appleby, please avert your eyes from a forthcoming review of Heydon’s book in the Australian Bar Review.
Others may wish to know, however, that Federal Court Justice Ian Jackman describes Heydon’s two volumes as “undoubtedly … the finest legal scholarship ever published in Australia”.
Jackman tells Inquirer this week that admirers of Heydon’s writing often share their “favourite phrases from the books”. Should we shame them, too?
One could fill pages exposing the darker instincts of those who imagine they are progressive. But life is too short. Suffice to make these observations.
Appleby directs her outrage at Heydon, the “black letter” judge. The “legalist” Heydon believes in the rule of law, she says, quoting him also in a speech years ago where he said that black-letter judges should possess two traits: “a firm grip on the law” and “total probity”.
The only shock here is that the rule of law may not shine as brightly as it should for an academic trained in the law. As Kirby said, no court, no judge or jury following due process, found Heydon guilty of a crime. For how long is he to be punished by other self-appointed wardens of morality?
Forever? And in what fashion? Appleby has a suggestion.
“The legal profession can’t decry the conduct but not wrestle with this intellectual and precedential legacy,” she writes. Oh, but they can. And they should, because rational people can hold more than one idea in their head, for example, deploring sexual harassment and respecting tremendous contributions to the law.
One wonders whether a murderer who later contributes to society might be treated better than Heydon has been.
In Great Australian Dissents, published in 2016, Appleby describes Heydon’s dissent in Monis v The Queen “as a precisely executed performance, and a ‘great’ dissent, left to wait for the next generation of courageous counter-heroes”.
Shall we pulp the book or will ripping out Appleby’s chapter on the former High Court judge’s dissenting judgment satisfy the obliterators?
In 2024, ACT Chief Justice Lucy McCallum told a forum she had recently re-read Heydon’s judgment in AK v The State of WA where he quoted Lord Devlin’s comments about the importance of juries. In 2021, Devlin’s daughter claimed her late father had sexually assaulted her.
McCallum then said: “Knowing what I now know about … the allegations against both Mr Heydon and Lord Devlin and the nature of those allegations, I re-read that whole passage (by Heydon) … which was interesting in itself and probably worth a whole day’s separate research and discussion.”
What kind of separate research and discussion? How does McCallum imagine that allegations against a judge, unproven in a court of law, be used to reinterpret their legal judgments? If, for example, Heydon formed part of a 4:3 majority in a High Court judgment, should we treat that issue as not settled any more?
The absurdity is outdone only by the danger. If we are to open a Pandora’s box of interest in what judges do off the bench, how far do we go? Should we check whether the messy private lives of some judges are ever reflected in their judicial pronouncements? Do we revisit rumours and accusations about former judges to re-evaluate their judgments? The Magna Carta was written by a bunch of 13th-century barons. If some behaved as heathens, should we reconsider that document’s celebrated place in history as the foundation of the rule of law, a fair trial and other basic rights?
Heydon’s monumental legal and intellectual contributions won’t be diminished by legal minions. Still, we must keep eternal watch on the legal left’s slide into zealotry.
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