Dyson Heydon

Heydon was born in Ottawa, Ontario, Canada, to Muriel Naomi (née Slater) and Peter Richard Heydon (later Sir Peter). His father, a diplomat and public servant from Sydney, had met his mother (a Canadian) while both were on the staff of Richard Casey, the Australian Ambassador to the United States.[2] Heydon was raised in Sydney, attending the Shore School, before going on to receive a BA in history (with the University Medal) from the University of Sydney, where he was a resident of St. Paul's College. He was then awarded a Rhodes Scholarship to attend University College, Oxford, where he received an MA and a BCL and was awarded the Vinerian Scholarship.[3]

A fellow of Keble College, Oxford, teaching public international law in the early 1970s, Heydon was admitted to the New South Wales Bar Association in 1973. At age 30, he became a professor of law at the University of Sydney, the youngest person to reach that position. Heydon was elected dean of the University of Sydney Law School in 1978, serving a one-year term. He left to become a barrister, working at Selborne Chambers, where his colleagues included future High Court colleague William Gummow and New South Wales Supreme Court judge Roderick Meagher.[4] He was appointed a Queen's Counsel (QC) in 1987.[5] In 1999, the Supreme Court of NSW found Heydon negligent in the advice he had given to the NRMA in 1994 concerning its demutualisation. The negligence ruling was overturned on appeal.[6][7]

In 1977, Heydon married Pamela Elizabeth Smith, with Gummow as the best man.[4] They had four children. Pamela Heydon died on 13 June 2017 at the age of 66.[8]

Heydon is also a legal scholar.[9] His 1971 book The Restraint of Trade Doctrine continues in a fourth edition.[10] With Sir James Gobbo and David Byrne, he co-authored the second Australian edition of Cross on Evidence in 1980 and became sole author of subsequent editions.[11] He has also taken over from his former colleague, at Sydney University and on the High Court, William Gummow as one of the editors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies.[12][13] He is also a co-author of Jacobs' Law of Trusts in Australia.[14] In 2019 he published Heydon on Contract.[15] These are mainly doctrinal treatises, designed principally to assist practitioners in their advice and pleadings.

Heydon was appointed a Justice of the Court of Appeal of the Supreme Court of New South Wales in 2000, and appointed a Justice of the High Court of Australia in February 2003.[16] His appointment to the High Court by the Howard Government was generally welcomed, and Attorney-General Daryl Williams noted Heydon's strong work ethic.[4] There was some disapproval, however, because Heydon replaced the only female justice, Mary Gaudron, making the court then all-male, and because of his opposition to judicial activism.[17]

After his first full year on the bench, Heydon was noted for his close alignment in opinions with the Chief Justice Murray Gleeson, as well as Justices Gummow and Kenneth Hayne, in constitutional law cases. He reached the same outcome as the Chief Justice in all but one case and frequently wrote joint judgments with the latter pair.[18]

As he approached the constitutionally mandated retirement age of 70, Heydon's rate of dissent increased markedly, tripling to 47.6 percent from 2010 to 2011.[19] Because of this, as well as his tendency to write a separate opinion for each case (even where he agreed with other justices), he was described by some as "The Great Loner" of the court.[17] He was the sole dissenter in Plaintiff M70/2011 v Minister for Immigration and Citizenship, relating to the Gillard Government's "Malaysian solution" for asylum-seekers, and in Williams v Commonwealth, relating to the federal government's funding of school chaplains. He also dissented in the case of Charles Zentai (writing in favour of his extradition to Hungary), and in the challenge to the Australian government's plain tobacco packaging legislation (writing in favour of British American Tobacco).[20]

On 13 March 2014 Heydon was appointed as the sole Royal Commissioner to lead the Royal Commission into trade union governance and corruption on the recommendation of the Abbott Government.[31][32] The Royal Commission submitted its final report to the Governor-General on 28 December 2015.[33]

Heydon handed down the Commission's interim report in December 2014[33] and found that the Construction, Forestry, Mining and Energy Union (CFMEU) acted in "wilful defiance of the law". Dyson recommended that criminal charges of blackmail be considered against John Setka, the Secretary of CFMEU Victoria, along with charges against a number of other senior CFMEU officials in Queensland and New South Wales for activities that included death threats, extortion, gross neglect, and other "serious criminal matters".[33][34] The Age reported that "Justice Heydon identified key concerns about the use and operation of union election slush funds ..."[35]

As Royal Commissioner, Heydon recommended that fraud charges be considered against former Australian Workers Union officials for their use of a secret slush fund in the 1990s. One of the officials implicated was a former boyfriend of Julia Gillard, a former Labor prime minister. As a lawyer, Gillard had assisted the union by providing legal advice to establish the slush fund. No charges were laid against Gillard. Heydon agreed with counsel assisting Jeremy Stoljar's submission, that her conduct as a solicitor had been "questionable". The report recommended that charges be considered against seven past and present Health Services Union officials for their role in an alleged right of entry scam.[35]

Bill Shorten, the Leader of the Opposition, gave evidence before the Royal Commission in relation to his time as National Secretary of the AWU. During Shorten's appearance before the Commission, Heydon interjected, stating "If I can be frank about it, you have been criticised in the newspapers in the last few weeks and I think it’s generally believed that you have come here in the hope you will be able to rebut that criticism or a lot of it. I’m not very troubled about that, though I can understand that you are, and it’s legitimate for you to use this occasion to achieve your ends in that regard. What I’m concerned about more is your credibility as a witness ... and perhaps your self-interest as a witness as well."[36][37]

In June 2020, an investigation on behalf of the High Court found that Heydon had sexually harassed six associates while a member of the Court. The Chief Justice of Australia, Susan Kiefel, released a statement noting that she, her fellow Justices, and the Chief Executive and staff of the High Court had apologised to the women.[44] The statement also listed the report's recommendations for administrative changes to address the vulnerability of Justices' personal staff, including associates, and improve the handling of such complaints, "all of which we have adopted and acted upon".[44] The same month, the Sydney Morning Herald subsequently published the findings of its own investigation that had dated back two years, which also found Heydon to be a serial sexual harasser of women. It related to that period in Heydon's career as well as to earlier and later periods.[44][45]

Heydon denied the claims and apologised for any "inadvertent and unintended" offence.[46]

Several other women alleged to the Herald that they had also been sexually harassed by Heydon, and the newspaper stated that "Mr Heydon’s predatory behaviour was an 'open secret' in legal and judicial circles." Other allegations stated by the newspaper include allegations of indecent assault made by an unnamed "current judge" (a barrister at the time) as well as by students at Oxford University.[1][47] Three of the associates are planning legal action against the Commonwealth and Heydon, and said they may approach the Australian Human Rights Commission.[48]