It is not likely that Mr John Setka of the CFMEU has ever felt the need to tell a journalist that that he has often felt the need to express his dissent in the minutes of the union because he did not like the writing style of the other organizers and officers of the union – that he does, for example, have a real aversion to split infinitives, dangling participles, or a perceptible but unwarranted variation in the number of a noun that some others tolerate to avoid treading on the toes of those who get exercised over what is called sexism. These are some of the things that Mr Dyson Heydon, QC discussed on the ABC when reflecting on his time as a justice of the High Court of Australia. That court is our highest court, and by and large its members have served us well. It is a reputation devoutly to be preserved.
There was always going to be a problem in Mr Heydon continuing to do just that when he accepted the invitation of the current Prime Minister to go down into the world of Mr Setka and the phantoms of the enemies of Julia Gillard, the outgoing PM, and our first woman PM. Julia Gillard had been targeted by members of the press, especially the Murdoch press, about allegations of what had passed between her as a solicitor and a boyfriend twenty years ago. Yes, you heard – twenty years ago; more than three times longer than the standard limitation period fixed by the law for permitting civil claims to be raised.
The employees of Mr Murdoch, and their unattractive political sponsors like Senators Abetz and Brandis, to this day put their hands on their heart and say that they have pursued this issue in the public interest because what Julia Gillard did twenty years ago reflects on her fitness to hold office as Prime Minister. Well, if they are prepared to say that with a straight face, they will also be the shrillest in objecting to any suggestion that this kind of personal denigration could only have been wrought on a woman. However that may be, the attack on Julia Gillard, especially after she had lost office, appeared to many Australians to reach new lows, even by our standards, of partisan political bitchiness and moral vacuity in Canberra.
The CFMEU is what is called a militant trade union. It has succeeded to the position of the BLF as the Aunt Sally of choice for hardened and unlovely champions of the class war like Senators Abetz and Brandis. The public inquiry headed by Mr Heydon, and named after him, was predictably branded as a witch hunt, and we have no problem in imagining what the reprisals will be like, but it was always hard to see how anyone like Mr Heydon could get down into this gutter and come out with a reputation enhanced, or even preserved.
Mr Heydon has impeccable credentials as a member of the Establishment, or at least as close as Sydney can get to any such thing. He was educated at Shore School before going on to win the University Medal at Sydney University. He was a Rhodes Scholar – well the whole nation is coming to terms with the fool’s gold that that distinction may hide – but his winning the Vinerian Prize at Oxford is a good sign of a very bright and concentrated academic mind, if not a driven one.
Whether that can translate into good judgment and common sense is another question, especially when those early academic prizes are followed by the active pursuit of an academic career. Mr Heydon was a Fellow of Keble College Oxford before becoming a professor in Sydney and the Dean of the Law School. He is the author of works in the wantonly superior and acerbic style that some elevated lawyers in Sydney appear to find satisfying. He never sat as a trial judge, being appointed straight to a court of appeal and then to the High Court. I do not know if he ever appeared in a criminal trial or before a jury.
Mr Heydon was happy to tell those listening to the ABC that he wears as a badge of honour the title of conservative black letter lawyer. He acknowledged that others regard that term as an insult. Mr Heydon is not therefore averse to taking sides, and being seen to do so. South of the Murray, the Sydney black letter lawyers, the ‘whisperers’, are thought to have tickets on themselves and to be too brittle for their own good. Some of the sniping that they engage in looks downright bitchy, and you can see it in print, and in works that assert claims to scholarly merit. They can engage in behaviour that looks anything but conservative.
Mr Heydon showed some of these traits while he was on the High Court. His Honour rejected the wisdom of our ancestors that dissenting judgments should be discouraged if not banned. Some see dissent as heroic; others see it as a nuisance. But too much division and dissent debases the coinage of the court as a whole, and can leave a recidivist dissenter like Mr Heydon sounding like the boy who cried wolf.
His Honour was hardly pursuing his colleagues with terms of endearment if he told them what he told the ABC – that some of his colleagues don’t mind split infinitives or dangling participles ‘so at that low level one doesn’t want to agree…..They don’t write grammatically as I understand Anglo-Australian grammar.’ Well, so much for humility, tact, and team spirit. And people who beg to differ on those grounds do not do so out of any felt inferiority to those around them. Mr Heydon has the hallmarks of an anal intellectual snob.
By the time his time on High Court had expired, Justice Heydon had become a compulsive dissenter, and he could express his views in language that was at best curious. In the case about packaging cigarettes, his Honour said:
After a ‘great’ constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s. 51 (xxxi) , may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.
Putting to one side the imputation to a polity of a visceral emotion, which would have entertained medieval Schoolmen, is this what we expect from the justices in our ultimate constitutional court – to speak of the hatred of the Commonwealth of a part of the Commonwealth Constitution? What do these people do to each other up there is that bleak suburban fastness of Canberra? What sort of masonry lies buried here? Where is the calm repose of the dispassionate jurist?
Mr Heydon was appointed to the High Court by Prime Minister John Howard, who is the mentor of the Prime Minister who appointed him to conduct this royal commission. This could be called keeping it in the family, although few Australians will reflect with equanimity on the suggestion of Mr Abbott that he is the political love child of John Howard and Bronwyn Bishop.
The government was aware that its bona fides were in issue – to put it softly – in this royal commission. They had to find a safe pair of hands, a man beyond reproach. How could you do better and more safely than with a former High Court judge who glories in his black letter conservatism? All that would have been enough for a government that puts slogans where thinking should be, and which puts political advantage over principle.
Well, it was never likely that Mr Heydon would, like Sir Garfield Barwick, be described as the hit man of the Establishment, but there were obvious difficulties in his appointment to this political task. With the best will in the world, Mr Heydon would have no idea of the world of people like Mr John Setka or Ms Kathy Jackson of the Health Services Union. You do not learn about them at Shore or Keble College, Oxford. You might as well ask Mr Setka to give advice to Mr Heydon’s club in Sydney, the Australian Club, on the etiquette surrounding the inviting of ladies to lunch at that club. (You don’t.) It is not as if Mr Heydon has spent time knocking back beers at a South Sydney boozer talking to people with pictures on their arms and with a bit of previous in their cupboards about the contribution of the blackfellas to the latest flag of the Bunnies. This is one factor in appearances when appearances count. It rather savours of two of the chaps from Oxford getting together to advance the interests of those who share their view of the world over the interests of those who are not so well off. Put differently, what member of the CFMEU or any other union target could give a bugger what somebody like Dyson Heydon, QC said about them? This is not just class that we speak of – it is caste.
But it was not just the sheltered, cloistered upbringing of Mr Heydon that made this appointment inappropriate – it was his lack of experience as a trial judge. Royal commissioners are not judges and they do not exercise a judicial function. They are part-time public servants conducting an inquiry and they are anything but independent of those who give them the job. But it is useful in many contentious inquiries to appoint someone who has judicial or at least forensic experience in determining issues of fact arising from conflicts between witnesses, and to do so with a person who is as distant from the fray as possible. Neither of those ends was achieved here.
Nor would Mr Heydon have the faintest idea of what might be involved in running the office of a solicitor, which was at the heart of the query about Julia Gillard and her boyfriend. Had Mr Heydon ever practised as a solicitor, it is inherently unlikely that a firm of which he was a member would have acted for a union, let alone one as punchy as the CFMEU. But even if he had acted as a solicitor for the big end of town, he would have been able to smile in a more informed way on some of the more banal suggestions about the conduct of Julia Gillard as a solicitor. They were and are being made by people who do not know what they are talking about.
When judges are sitting in court, they observe a fiction that says that they are not affected by what they read in newspapers, but it must have been apparent to Mr Heydon that the job he was being asked to do had more wrinkles than my aging kelpy cross. Most Australian lawyers know the kind of juristic mayhem that can flow when the industrial and criminal laws combine. There are two words that cause veils to descend over people’s eyes when they are mentioned in an Australian court – one is tax; the other is industrial.
The BLF kept fighting lawyers (including me) in feed for more than a generation. A rogue outfit like the BLF pushes the legal system beyond its snapping point. Judges find themselves saying things that they instantly regret, but they feel provoked and pushed. The BLF provoked a Labor government to pass a law of proscription and annihilation that would have made Adolf Hitler blush. But what appeared to be the case to someone who had got to act on both sides of a long running kind of civil war was that the more that governments lashed out at those in charge of these outfits, the more thoroughly were their members locked in behind them. You get a similar reaction if you say something rude about the Collingwood Football Club. Class and faith (bigotry) are as thick as blood.
And was there not something just downright bloody unseemly about getting a former High Court judge to inquire into the conduct of a former Prime Minister as a solicitor more than twenty years ago, and after her time in office had expired? Is this really all that the people of Australia can expect from those who claim the right to run this bloody country?
The website of this inquisition instigated by Mr Abbott – there were others – describes it as a ‘Royal Commission into Trade Union Governance and Corruption’. That title might be thought to beg the main question. Can you envisage an inquiry into ‘Corruption in Parliament’ or ‘News Limited Governance and Corruption’? Of course, Julia Gillard is not mentioned in the terms of reference, but those terms do have the air of Paris in 1791 about them. They start by referring to governance arrangements and financial management of unions, and say that the inquiry can extend to whether unions ‘are used, or have been used, for any form of unlawful purpose’ – like getting a parking ticket. Then five unions are targeted by name. Then there is the Law of Suspects, or the Julia Gillard clause, a duty to inquire into ‘the activities of any other person or organisation in respect of which you consider that there are credible allegations of involvement in activities mentioned’ above. In the name of heaven, is this our idea of the rule of law?
Well, no one would call either Senator Abetz or Senator Brandis subtle when the flame of their hatred for trade unions and the Labor movement is aroused. Nor is it hard to see which way reprisals might go. Just substitute trading corporations for trade unions, name members of the News Group, and then subject their accountants and lawyers to a snow job. Just think of the fun you might have with, say, a casino operator. Mr Heydon and his staff could get quite an education into what happens in the swish cloud capped offices of advisers to the better people. It could be a real eye-opener to many people to have observed how rivers of money flowed over unopened files from political donors to politicians who had the yes or no on the only ticket in town, especially if those moneys followed routes that suggested that they had not passed too closely under the gaze of Her Majesty’s Exchequer. We could even do the same to the likes of Google or Amazon – but we of course would not have the balls for that.
A royal commission, as the name suggests, is a manifestation of royal power. Her Majesty, through her advisers and officers, good monarchists all down here, is proceeding against her Australian subjects, named or otherwise, to achieve a political objective. The Domesday Book was a good case. The Queen is in a way going against or sending against some of her subjects. All of her ancestors have promised not to do that ‘except by lawful judgment of his peers or by the law of the land’ since clause 39 appeared in Magna Carta in 1215, but ancient rights must give way to current grubby political imperatives.
So, the Vinerian Scholar entered into this royal commission and into territory that would be less familiar to him than Mars – or the home of the South Sydney bunnies. He also came with a propensity to pedantic dissent from the mainstream, and a capacity to say things that put your teeth on edge. He looks like an unsettling nerd out of sync with the rest of us, a flat white made flesh, the lone Ranger sans Tonto, more of a protected species than a living national treasure.
This royal commission got off to a very bad start. Word got out that Senator Brandis – known as ‘Bookshelves’ for his propensity to maintain a library at our expense – had claimed nearly $1700 for travel expenses attending a wedding. How could attending a wedding relate to his occupation as a politician? Some said that the Senator had appeared to enjoy himself greatly on the dance floor at the reception. But this was no ordinary wedding. The groom was a shock jock, and the Senator and his Prime Minister like to be on good terms with shock jocks. More than that, the Senator said that he saw his attendance at this wedding as a chance to collaborate with the said shock jock on the abuse of expense accounts in the Health Services Union. The HSU was the initial main target of the forces of righteousness – it involved a crooked MP from the other side and was offering a dissident who was promising the world to those who wished to destroy the union. The Senator said that he had done nothing wrong, but that he had decided to repay the money anyway. He thought that any uncertainty should be resolved in favour of the taxpayer.
This tends to be a hallmark of members of this government – they say one thing, and then they do the opposite. They are incapable of owning up to lapses, and God knows that none of us is incapable of lapsing; Adam and Eve saw to that. That just leaves the question of the views of the man who is now our Attorney General on the sanctity of marriage. In defending his right to be indemnified for the cost of attending the wedding, the Senator had said that what mattered was the purpose of the travel, and not the nature of the event. Even some tax lawyers might blush at that, but appearances, we know, can be deceptive. Just when you thought that the Senator was there to celebrate the union into one of a man and a woman under God, he was pursuing a high matter of state on our behalf. The Senator, an exemplar of eternal vigilance, was investigating false expenses claims. Snoops like the Senator could put the FBI clean out of business.
And so Justice Heydon, as he now was not, became exposed to a part of Australia that he had apparently not even suspected, a crude demi monde where people in positions of trust dishonestly took advantage of their positions to benefit themselves at the expense of others who were not so fortunate.
Two of the worst examples were a man called Thompson and a woman called Jackson. Each of them caused revulsion across the nation as representing a moral slide that people see across the whole of our public life. Thompson, a member of parliament, has since been dealt with by the criminal law. To the amazement of many, and the dismay of some – including me – Thompson was not sent to jail. (Well, by tradition in this country, no one ever goes to jail because of a royal commission. Another rather anal former judge called Cole, who was not the working man’s friend, ran a huge show into building unions that saw trainloads of dollars head to the legal part of town, and when the tumult and shouting had died, Her Majesty’s prisons received no new guests.)
Kathy Jackson might fairly be described as sui generis. If she has any kind of moral compass at all, it is hard to detect. She is yet to be charged, but she is facing civil claims to recover amounts she applied to her own benefit. She claims that she has not been well. Unfortunately, she was one of the main drivers used to get this inquiry up and running, and she has shown herself to be as unreliable a source as you could find.
The high light of this low life came when this witness, Kathy Jackson, took exception to being examined by a barrister whom she had slept with. Mr Heydon did not have much trouble rejecting this application – its juristic foundation was at best obscure – but there was at least some exquisite irony in the fact that the relevant disqualifying behaviour was of a sexual nature and was said to have occurred some twenty years beforehand, the period that we give as a rule of thumb to measure the span of one generation in human life. And the source date for the start of the conspiracy theories against Julia Gillard. Monty Python was up and about in Mr Heydon’s commission.
Perhaps fortunately – perhaps not: it might depend on whether you take sides and if so which – the awful tawdriness of the parade before Mr Heydon was eclipsed by the frightful failures of politicians elsewhere. Senator Arthur Sinodinos was the hope of the side of the new government, the special protégé of Mr Abbott’s mentor, but his unfamiliarity with the real world made him a soft target for seduction and left him with the reputation of a greedy man of no judgment whatsoever. His ministerial aspirations are shot. In the meantime, a whole cricket team of MPs in New South Wales were getting rubbed out for being on the take. If the allegations against the CFMEU now recalled those gainst the BLF thirty years ago, the stupidity and greed of people like Thompson and Jackson looked all too recognizable as being par for the course among people who mistakenly regarded themselves as being their superiors. It all just looks like a wasteful case of déjà vu.
And the main attack failed; the pursuit of Julia Gillard has been finally pronounced to have been what all but the bent or demented always believed it to have been. Mr Heydon said:
Findings are made that Julia Gillard did not commit any crime and was not aware of any criminality on the part of these union officials.
There was a time when a good trial judge would have just stopped there because he or she had just disposed of the relevant issue. But Mr Heydon went on to opine that part of her legal work ‘must be regarded as a lapse of professional judgment, but nothing more sinister.’
The introduction of the degree of comparison might suggest that in the opinion of the author, the error of judgment was in itself ‘sinister’. If you look that word up, you will get ‘prejudicial, unfavourable, darkly suspicious.’ Mr Heydon also used the lesser epithet of ‘questionable.’ Could it be that this long quest would just end with a question? How would it have gone down if a lesser lawyer, say a solicitor, had dared to question, en passant, Mr Heydon’s professional judgment as a barrister or judge?
Well, given the acquittal of the main target, were the losers graceful if not perhaps contrite? Good God no, this is Mr Rupert Murdoch’s Australia. The leader of the pack said this:
If the facts had been established beforehand, Ms Gillard would not have become PM. Supine sections of the media, a law firm cover-up, and strident attacks on those who tried to investigate ensured little of substance leaked out until 2012. But public accountability eventually worked. The royal commission’s findings, rightly, have the most force.
There you have one of the advantages of being God or Rupert Murdoch – you do not have to say sorry, and you can rewrite history. And you can talk bullshit forever.
Mr Dennis Shanahan was as ever keen to put the case for the PM, but even he had to make an awful concession.
From the beginning, Tony Abbott’s Royal Commission into Trade Union Governance and Corruption looked like political payback from the new Coalition government.
When Julia Gillard came into the focus of the inquiry it looked even more like it and made it almost impossible for the government to argue otherwise.
You will notice that we are speaking of appearances, but in Canberra that is as deep as you get. Outside of the PMO, that is as close to the horse’s mouth as you will get – even if Mr Shanahan was being a little coy when he said that the main purpose of the inquiry was ‘shedding light on corrupt union behaviour.’ That kind of corruption is as old as that of our parliamentarians. It starts with Genesis.
One report in The Age began:
Beyond the question of just what has been achieved by using a royal commission to pursue Julia Gillard is one that will not be answered for a decade or two. It is whether we have witnessed a turning point in Australian history, where a political system based on Westminster has morphed into one that operates in Washington.
Another report in the same paper was less friendly:
What do you do when your star witness in a politically motivated inquiry turns out to be an alleged thief who may have stolen more than $1 million? Just ignore it. The credibility of the Royal Commission…should suffer a serious blow from its glaring omissions on the allegedly corrupt behaviour of Kathy Jackson and how it has treated her throughout these hearings.
(The report does, however, refer to outstanding litigation on these issues.)
Libel lawyers never tire of telling juries about how we can never know how far the poison of a libel has reached, and the AFR has a perfect example of the harm that we have inflicted on Julia Gillard:
The interim report highlights howling gaps in the rules on union slush funds, with a sidelong glance at former Prime Minister Julia Gillard’s veracity as a witness in relation to one of them.
For the Abbott government, the commission is a rare bright spot – another year of hearings, a final report and likely prosecutions. This should be a stick with which to beat Labor, which remains in denial, all the way to the 2016 election – provided the government doesn’t overplay its hand.
Now all that kind of stuff is the staple of what passes for politics and journalism in this country – a less than elevating rough and ready blow by blow account of a shit fight. But that ugliness has been fed here by the lack of experience of this commissioner in trying controverted issues of fact. Mr Heydon is quoted in the press as saying:
Normally cross-examination of a non-expert witness is a contest between a professional expert who is familiar with every detail of the case and a relatively unwary member of the public who is not. But Julia Gillard had twenty years’ knowledge of the case and immense determination to vindicate her position. She was, so to speak, a professional expert on her own case.
Two reports in The Age quoted the same words, as if there was something wrong about them. There was. Mr Heydon, that is not how trial courts work. It may look that way to those in the proverbial ivory tower of Keble College Oxford or the High Court of Australia, but it is not what happens day to grinding day in any court in the land. The mystique of cross-examination is grossly over-rated, and as an artful technique it is nearly dead. You grope your way hoping not to get smacked or ambushed. The days when you are ‘familiar with every detail of the case’ do not happen often, if at all. If you have to listen to others do it, you try to help them reach the point, and sometimes just watch as people go over the precipice; you have to help them reach the point, because other litigants are waiting their chance to get this job done so that they can get on with their lives. Sir John Starke was the leading cross-examiner of his day, and he told me, more than once, that he always felt relief if when he sat down he was no worse off than when he started.
All that, apparently, has not been the experience of Mr Heydon, QC. We are not talking about what some call the sporting theory of justice. Rather, Mr Heydon looks on cross-examination as a kind of dressage contest where points are awarded for form, deportment, and style. The problem with treating the witness box as the scene of sport or even a contest is that the white hats may not do as well as the black hats. The black hats normally have the money behind them.
What Mr Heydon appears to be talking about is not cross-examination but the ghastly ersatz routine that is killing it. Counsel charge a fortune to read anything they can lay their hands on. They then bring their computer or wheelbarrow to court, smile wanly at the witness, and say; ‘Now, Sunshine, you and I are going on a little journey.’ They then proceed to circumnavigate the world, mostly to no effect, except to enhance their bank balance. Documents are flagged or tabbed to act as prompts or cues, and you neither see nor hear any real cross-examination at all. The process is tailor-made for the novice at one end and the truth-dodger and game-player at the other. We saw it all on live TV at the Leveson Inquiry. It was a boring as it was fruitless. I wonder if in truth Mr Heydon has ever seen a witness cross-examined at all.
But there is an aura of complete unreality about this. Many Australians thought that Lindy Chamberlain had not reacted as you would expect of a mother who had just lost a child. What is the prescribed text-book reaction of a mother who has lost a child and then been falsely accused of murdering her own child? It was, I suppose, the view of Julia Gillard that she had been falsely accused of criminal conduct more than twenty years ago by those in the employ of a world famous muck-raker and then exposed to a public inquisition on those charges by a vengeful and unprincipled gaggle of politicians who recruited a former High Court judge to lend their ghastly abuse of process a veneer of decency. What might be a matter of comment is that she did not just offer to slap their impertinent faces. It is fatuous to comment on the determination of the target to vindicate her position, and it passes belief that the tribunal could refer to the passage of twenty years as anything but a burden and barrier for the person in the dock. For all we know, she may have been weighed down by warnings of what might happen if she split an infinitive or dangled a participle.
All that the commissioner had to say was what he said under ‘findings’, but Mr Heydon, in spite of the difficulties that he thought that he faced in making any finding on this contest, involving one strong-willed witness who happened not to be a ‘relatively unwary member of the public,’ felt the need to refer to ‘a lapse of professional judgment, but nothing more sinister.’
It is like a throwaway within a throwaway, and with a level of condescension that would have brought a glow to the cheek of Lady Catherine de Bourgh. I hope I may be forgiven for referring to something that I wrote about an incident that happened to me nearly thirty years ago when I first started to hear and determine cases involving issues of both fact and law, but I find it instructive. It was in 1985 and the case involved a big tough earthmover from Gippsland who at one time threatened to belt a rather longwinded lawyer for the crown who had almost no idea about cross-examination. I thought that this guy was not beyond playing games with the tribunal – me! – and I thought I might let him know that. I prepared a draft of my decision.
…..I thought as a matter of courtesy, or, perhaps, comity, I should submit it to my President, a nice man, a judge called Alwynne Rowlands. He called on me and said that I had some journalistic flair, but that I might want to reconsider one remark I had made about the taxpayer. ‘He will have to live with this for the rest of his life.’ That was wonderfully good advice, and I have tried to recall and follow it. We should try to avoid casual, unnecessary injury, and the most important person in court is the loser.
What the President was suggesting was the forbearance of the ninety-fourth sonnet, and there is much to be said for it in those that have the power to hurt.
And, again according to the press, Mr Heydon then allowed himself to get sucked in to party political talk when he remarked of one submission on behalf of Julia Gillard that ‘It is a strange submission to be advanced on behalf of a former politician belonging to the Australian Labor Party tradition – a tradition of social democracy.’ It would have been preferable for the commission to have avoided any appearance of making party political points, whether of a darkly droll ad hominem nature or not. We need our judges to be above that sort of stuff. Political parties are as popular as churches, and Mr Heydon is not the kind of man that you might associate with a tradition of social democracy, whatever he may have meant by that protean term.
The reception of Mr Heydon’s remarks from the warriors in the trenches on either side was to be expected. Senator Abetz told The Australian that the report made ‘a very, very strong case’ – that was an interesting word, ‘case’ – that the labour movement was not tainted ‘by the odd rotten apple in the barrel’ and that there were in fact ‘many, many rotten apples at the very highest levels of the trade union movement.’ That is the way that people like Senators Abetz and Brandis talk. It is not Vinerian prize-winning – it is mind-turningly dull.
The CFMEU in its turn responded in kind:
Like previous royal commissions, the Heydon commission is politically motivated to produce outcomes to justify the introduction of anti-union laws. This is clear from the prejudiced and biased findings of the royal commission that reflect the ideological bent of the Abbott government and their hatred of unions.
In short, for those who go in for this kind of class war, it is as you were, and for the rest of us, nothing will ever change or get better. And the lawyers have made another killing on a pointless gravy train.
We are used to all this from our politicians. But this time they got a judge involved, a former judge, and one from our highest court. Except for a few desperates rusted on, as we now say, at either end, Australians are resigned to seeing government in the hands of unprincipled oafs like those who set up this sad flop. But they are not resigned to, and they should never be asked to accept, their judges being dragged into this kind of nasty, petty nonsense. On the whole, our judges are seen as being clean. Our judges, especially our superior court judges, have a high reputation, but that reputation will not withstand debasement by judges being used in this kind of politics.
I have tried to set out the reasons why I do not think that Mr Heydon was the right lawyer to conduct this inquiry, quite apart from his previous position as a High Court judge. He is too remote from the world and he has not had enough experience in resolving issues at first hand. These reasons were apparent to those advising the government, but they nevertheless went ahead, and Mr Heydon, perhaps from a misplaced sense of noblesse oblige, acceded to their request. It is difficult to avoid the inference that the government chose to go ahead with the appointment in spite of all the difficulties because they were set upon giving to their inquiry the gloss of the seal – the cachet, if you prefer – of the High Court of Australia – and there you have the whole bloody problem. We have drawn the courts, and our best one, into the political gutter.
A distinguished English judge was the late Lord Devlin. (He was also considered to be the Rolls Royce of trial judges, and it was said that he retired early because he was sick of the dry sodality of appellate work.) Lord Devlin once made a remark to the effect that English governments forever showed the very high regard that they and the English people had for their judges by their so frequent attempts to impose upon the judges to help them out of a political spot by giving their name and office to the conduct of a sensitive public inquiry*. This is why sensible and decent courts forbid that practice. That ban should extend to retired judges because the danger of communal reputational damage is just the same.
It would be tart to say that mistakes of professional judgment have been made here, and of a quite sinister kind, but is not the ordinary Australian, perhaps if you like ‘the relatively unwary member of the public’, not just a little ashamed at what is going on here? An Australian, as it happens a woman, has reached the highest form of electoral office that this nation can bestow; she is then made the subject of a sustained scheme by one of the world’s most powerful press head-kickers to blacken her name and run her out of office; she then has to face the indignity of being subjected to a public trial and humiliation at the instance of political opponents whose want of principle and character, and commitment to our basic political tenets, are becoming daily more apparent; and then their nominated inquisitor acquits her of the charges gainst her, but just gives her a backhander to go on with? Why would any sane Australian tell their children or grandchildren to do anything other than stay as far away from that cess-pit as possible? What can we say to these people, apart from what that now famous Boston attorney said to Senator McCarthy: ‘Have you no sense of decency, Sir, at long last?’
What did we Australians do to deserve this smutty little fiasco; more signally, what have we done to deserve these truly awful people who so truly believe that they are our ruling class?
*The actual words of Lord Devlin (The Judge, OUP, 1979, 9) were: ‘In our own country, the reputation of the judiciary for independence and impartiality is a national asset of such richness that one government after another tries to plunder it. This is a danger about which the judiciary itself has been too easy-going.’