Justice Dyson Heydon’s ‘shame’ far from isolated

One of the most high-profile barristers in Australia is calling for a federal judicial commission to deal with complaints.

Dyson Heydon’s conduct has been branded ‘the legal profession’s dirtiest secret’. Picture: Adam Taylor

One of the most high-profile barristers in Australia is calling for the Morrison government to establish a federal judicial commission to deal with complaints, saying allegations of predatory behaviour are far from isolated, after an independent inquiry found High Court judge Dyson Heydon sexually harassed six female­ associates during a decade on the bench.

Arthur Moses SC, a top Sydney silk and former president of the Law Council of Australia, led the push for a new commission as the lawyer representing some of the alleged victims branded Mr Heydon’s conduct “the legal profession’s dirtiest secret”.

Mr Moses said a federal judic­ial commission should be set up to handle complaints against judges that “strike at the very heart of public confidence in the administration of justice”, in the absence of a formal process other than a vote of parliament to remov­e judges for misconduct.

“This is not an isolated issue and we have to be honest about that, in order to prevent the abuse of power by a lawyer or judge,” Mr Moses said.

“Such unlawful conduct by lawyers and judges needs to be confronted and eliminated, not the subject of excuses.”

A day after Chief Justice Susan Kiefel said the High Court believed the accounts of all six women and was ashamed at what happened to them, following a court-ordered inquiry by former inspector-general of ­intelligence and security Vivi­enne Thom, it was widely acknowledged in Australia’s legal profession that predatory sexual behaviour involving male judges and senior colleagues was a persisten­t problem that needed to be stamped out.

Mr Moses said Chief Justice Kiefel had demonstrated she was “a true leader” in dealing with the allegations, but it should not have to depend on the integrity of the person holding her office to determine the quality of an investigation, or what action was taken.

 

Another former Law Council president, Fiona McLeod SC, said the Heydon allegations created a “remarkable opportunity” for the legal profession to shift its culture to one of zero tolerance, and she urged those aware of bad behaviour to stop staying silent­.

“Despite all the work that’s been done over the decades the problem is persistent, widespread and resistant to change,” she said. “Partly that’s an issue of culture and the (close) relationship senior judges and senior barristers have with those working with them.”

She said judges and silks who’d engaged in predatory behaviour should be worried: “What’s happened in the past has been the culture of ‘I’ll have a quiet word to the offender’, and it hasn’t worked.”

Josh Bornstein, the lawyer from legal firm Maurice Blackburn representing three of the former­ associates accusing Mr Heydon of sexual harassment, confirmed his clients would seek compensation from the former judge and the commonwealth.

Mr Bornstein claimed the conduct was known about in legal circles, but no action had been taken against the former judge, while his clients endured significant harm and trauma. “He is obviously one of the most powerful people in the legal profession,” he said. “That unfortunately has led to the situation where his conduct was the legal profession’s dirtiest secret.”

Scott Morrison said the allegations were “very disturbing and very concerning” but stopped short of committing to a judicial commission. As ex-Labor leader Bill Shorten urged that Mr Heydon be stripped of his Companion of the Order of Australia, the nation­’s highest honour, the Prime Minister said “a proper, formal process” would address the allegations.

Mr Heydon is making no comment but his solicitors, Speed and Stracey, categorically denied the allegations on his behalf and said he had told them any conduct had caused offence, the result was “inadvertent and unintended”.

Chief Justice Kiefel ordered an inquiry after complaints from alleged­ victims in March last year, relating to the period from 2003 to 2013 when Mr Heydon sat on the High Court bench.

Simon Bronitt, dean of the law school at the University of Sydney where Mr Heydon was last employe­d in 1981, expressed solid­arity and support “for the victims who have been abused by former High Court Justice Dyson Heydon”. He commended the courage of Chelsea Tabart, one of the women named and “one of our best and brightest students”, and the other female judges’ associates, for “righting these wrongs”.

“They no longer need suffer in silence,” Professor Bronitt said. “The failure of many institutions in our community to prevent this type of abuse, to provide real remedies for those affected, and to prevent revictimisation by the legal process itself, must be addressed.”

Ms McLeod said sexual harassment was “ongoing” in courts, law firms and at the bar. “At some stage the Attorney-General should weigh in and say ‘if you are not going to maintain a safe workplace, I will create a judicial commission so there can be conse­quences for independent judicial officers’,” she said.

Former NSW Bar president Jane Needham SC said she had not been aware of concerns about Mr Heydon’s behaviour but alleg­ations within the legal profession did not surprise her, and there was no real structure making it easy for people to complain. She said she was aware of bad behaviour by other judges, silks and law firm partners because people had come to her for advice. Most did not want her to intervene, fearing they would be viewed as “complainers”.

Former High Court chief justice Robert French endorsed Chief Justice Kiefel’s stand, saying sexual harassment could not be tolerated, but he said chief judges had limited powers to deal with bad behaviour. Mr French, now chancellor of the University of Western Australia, said he had not been aware of concerns about Mr Heydon’s behaviour.

Opposition legal affairs spokesman Mark Dreyfus said a federal judicial commission was needed to handle complaints and make recom­mendations. The fact so few judges had ever been removed from office showed how difficult it was for parliament to act, he said.

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