The more serious the allegations the more important the process or procedure used to look into those allegations. In the United States, there have been many, many examples in the last decade of universities setting up procedures to look into sexual harassment and sexual assault allegations where the university process is procedurally very suspect – it forbids cross-examination; the accused can’t confront the accusers; the investigators look pre-disposed to favour complainants; the list goes on. And after the boy (because it’s a boy always) is thrown out of the university and some sort of institutional apology is offered, it is not uncommon for that same boy to go to court and win, based on our long-established common law procedures for getting at the truth. That’s because for limited biological creatures like us procedures really, really matter. Better procedures tend to lead to better substantive outcomes – just think about what sort you’d like used against your son in any university.
And that brings me to former High Court justice Dyson Heydon and the revelation that Chief Justice Susan Kiefel, presented with sexual harassment allegations against her former colleague on the top court, instituted a process that frankly looks baffling. And very procedurally suspect. Here are just a few of the problems, in no particular order:
- A non-lawyer public servant was picked (on what basis no one knows and with what pre-existing sympathies no one knows) to look into the claims. Apparently she was given scope to make a conclusion of fact, whether she thought the alleged actions actually happened or not.
- No cross-examination was allowed. This is despite cross-examination in the common law world being described as the great engine of truth, the idea being that an accused should always have the chance to confront his accusers in person. Former High Court Justice Heydon did not get that opportunity. In other words, our adversarial system was abandoned for some sort of non-statutory, entirely discretionary, inquisitorial type process.
- The Chief Justice seems to have accepted the public servant investigator’s views and then, on behalf of the court, to have offered an apology to the complainants. So no criminal trial, no civil trial, a more or less secret procedure and our top court is issuing apologies. What happens if any of the complainants now go to court, in a civil action, or the police take this to a criminal court? Remember, the ultimate court with the last word on any actual court action is the High Court. But they’ve already issued an apology. Were you Mr Heydon would you feel you’d get a fair shake out of a court that’s already made a call on your matter? This is administrative law 101. Our top judges would not allow a minister or anyone else to get away with this. The test ultimately is the appearance of bias, not actual bias, and how can anyone think that from Dyson Heydon’s point of view there would not be a patent appearance of bias should any matter reach the top court? Sure, the judges might tell us (as ministers do all the time, but are overruled by judges) that down the road they can be impartial even though they’ve effectively already made a call. But were they to find for Heydon later on they’d look like idiots. You can see why Dyson Heydon might be a tad reticent to bring judicial review proceedings, given that the top court has already pronounced on his matter.
- We live in a system where the top judges (unlike in Canada and Britain) insist on a very strict separation of powers. Judges can only exercise judicial power. So what was the Chief Justice doing here setting up this quasi-investigative, quasi-criminal process or protocol? Where did the CJ, or the court as a whole, get the power to do so? I don’t know. Certainly, it is not obvious what recourse Mr Heydon has now as this was not done under any statute. Worse, my understanding is that the High Court operates administratively as a whole, so all seven Justices presumably signed up to this seemingly (to me) baffling process. Was there not a single one of them that thought a former colleague deserved at least the same procedural justice as would be found in the lower end of the criminal justice system?
- It gets worse. When the High Court speaks and issues an apology that pre-supposes your guilt, no one in the legal fraternity (outside a few reckless law professors who don’t practice in court) can say anything in your defence. The livelihood of any lawyers would be ruined if they criticised the top court and its judges. I know it. They know it. The High Court judges know it. Speaking out against these procedures used against Dyson Heydon would be career-ending for a lawyer. No client wants a barrister who is fighting with the top court that will decide their dispute. Ditto the various lawyers’ associations, who can be expected to fall in line with nary an ounce of scepticism about this process. So the barrister would be professionally harmed and any client in an existing case would be prejudiced. The preponderance of the practising legal fraternity has effectively been silenced.
So there we have it. A bizarre process, possibly at odds with the separation of powers and not even rising to the basic procedural level that affords cross-examination entitlements, was employed to find against Dyson Heydon and undo the man. He is without remedy. I, frankly, have no idea about the substantive merits of these allegations. I do know, though, that in our legal tradition there is a proper way to look into them. Think back to the claims against Lionel Murphy, who was alleged to be corrupt. The then Chief Justice and High Court did not appoint some public servant to look into the matter and then use that to apologise for Murphy’s conduct. The man got a fair trial. He got the benefit of a reasonable doubt and the presumption of innocence. Had he lost he would have deserved pillory. Mr Heydon got none of that from our top court, which has brought its own standing and reputation into question.
James Allan is the Garrick Professor in Law at the University of Queensland. He practised law in Toronto and London before moving to teach law in Hong Kong, New Zealand then Australia. The comments expressed here are his own.
Illustration: ABC News screencap.
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