Secrets and lies and denials in Australia’s High Court

The High Court, Canberra (AAP Image/Lukas Coch)

The Sydney Morning Herald’s revelations of the allegations of sexual harassment against former High Court judge Dyson Heydon have been quite the bombshell, writes Verona Burgess.

Who knew there was this tiny pocket in the High Court of Australia’s administration so bereft of accountability or due process? A lot of people, as it turns out, especially female lawyers – Heydon’s alleged behaviour was evidently one of the law’s worst kept secrets, stretching from Canberra to Oxford university.

Let’s repeat right at the start, not least for the purposes of the defamation law, that Heydon, through his lawyers, has denied the allegations and has also apologised for any “inadvertent and unintended” offence that any of his behaviour may have caused.

Dyson Heydon (AAP Image/Joel Carrett)

The Chief Justice, Susan Kiefel, however, in her own strongly worded statement, said the allegations by raised by six former female judges’ associates, all court staff, “have been believed”.

“We’re ashamed that this could have happened at the High Court of Australia.

We have made a sincere apology to the six women whose complaints were borne out…”

Through his lawyers, Heydon also appeared to take a swipe at the court’s independent reviewer, Vivienne Thom, saying, inter alia: “The inquiry was an internal administrative inquiry and was conducted by a public servant and not by a lawyer, judge or a tribunal member…”

That is surely exactly what you’d hope for in the person conducting an administrative inquiry with this degree of difficulty – no vested interests of any kind.

Thom is not just any (former) public servant, either. As well as having been Deputy Commonwealth Ombud, she is also a former Inspector-General of Intelligence and Security, a tiny but powerful independent statutory office charged with holding to account the shadowy “intelligence community” – the nation’s six most secretive government agencies.

In that role she effectively wielded the intrusive powers of a royal commission, including taking evidence on oath, and she also could (and did) hold own-motion inquiries. It is without doubt one of the toughest jobs in the Commonwealth.

And yes, not a lawyer: she holds a PhD in chemistry.

It’s also worth mentioning that the Chief Executive and Principal Registrar [CEPR] of the High Court, Philippa Lynch, is not only a former government lawyer but also a former head of the pivotal government division of PM&C. Her deputy, Ben Wickham, is also a lawyer and a former special assistant to the Chief Justice and Justices of the High Court.

Let’s just say that between the lot of them, not to mention the Chief Justice herself, they have expertise in integrity matters pretty well covered.

It is a little ironic that Heydon’s evident desire for the matter to be examined by lawyers now looks set to come to fruition with the news that at least three of the women plan to sue the former judge and the Commonwealth of Australia.

Nobody should underestimate the difficulty faced by the Court in bringing this matter to light. Unfortunately, there are no legal whistleblower protections in administrative law for any current or former court staff who wish to make complaints against judges for any reason. Judges are exempt from the federal Public Interest Disclosure Act 2013.

That leaves few options. Staff can’t even take recourse to the code-of-conduct provisions in the Public Service Act 1999 because they are employed under the High Court of Australia Act; judges’ associates are especially vulnerable, being employed as non-ongoing chambers staff (at a rate of $74,070 per annum plus 15.4% superannuation.)

This is no doubt at least partly why the High Court took the administrative approach that it did to investigating the allegations, and why the process took a long time.

Former NSW Deputy Ombud Chris Wheeler says that all people acting in a public official capacity or performing a public official function should be protected if they make a disclosure of serious wrongdoing.

“Whistleblowing is one of the best ways of identifying wrongdoing within an organisation. Clearly, the people who work within the judicial system do not have those protections.”

He says perpetrators are far less likely to be identified or discovered when the protections are not adequate for people to come forward.

“This should have been brought to light much earlier, and the reason it was not was evidently the power imbalance and risk to the complainants.”

Australia’s foremost expert on whistleblowing is the Professor of Public Policy and Law at Griffith University AJ Brown, who is also a board member of Transparency International Australia. He says, “It is just confirmation that the original Public Interest Disclosure Act, despite its best intentions, is unworkable in a myriad of ways and that the overhaul which the Attorney-General [Christian Porter] already has underway needs to be far reaching and comprehensive.”

He also says there are internal inconsistencies in the Act’s Section 32 (which covers “disclosable conduct” connected with courts or Commonwealth tribunals).

It’s hard to imagine, by the way, that the separation of powers could possibly apply to alleged sexual misconduct by judges. We’ll return to those subjects another day.

The High Court is to be commended for accepting all of Thom’s recommendations and in particular its first: to develop a supplementary human resources policy relevant to the personal staff of justices, including associates.

This supplementary policy, endorsed by all seven judges, does not mince its words. Under the sub-heading, “Harassment, discrimination and workplace bullying”, it says:

“The Justices of the High Court are committed to providing a workplace that is free of inappropriate behaviour, harassment, bullying and discrimination.

“In particular [they] are committed to Chambers being workplaces that are free of behaviour that is offensive, abusive, belittling or threatening. The workplace should also be free of sexual harassment which can cover a range of unwelcome behaviour such as jokes or comments of a sexual nature and unwelcome physical contact, to subtle or explicit requests for sexual favours.

“This commitment extends beyond the day to day work in Chambers to all other work-related activities including travel and social events involving Justices and Court staff.”

The policy also lays out procedures for making internal complaints, including about the judges:

“Where a member of Chambers staff is concerned about workplace issues or has a complaint involving a Justice and the staff member is uncomfortable raising it directly, for any reason, with the Justice, the staff member may discuss the matter with the Senior Registrar or the CEPR.

“The staff member can also raise the matter with the Chief Justice either directly or through the Senior Registrar or the CEPR. Chambers staff can ask [either of them] to arrange a meeting with the Chief Justice without indicating … the reasons for the meeting.

“The Senior Registrar, the CEPR and the Chief Justice will take such steps as may be appropriate, or available, to them to resolve the matter including by raising the matter with the Justice concerned or, in the case of matters raised initially with the Senior Registrar and CEPR, raising the matter with the Chief Justice.

“Each of the Justices of the Court emphasises that Chambers Staff should feel able to raise matters involving a Justice with the Senior Registrar, CEPR or Chief Justice without risk of any adverse repercussions. In doing so, Chambers staff should be assured that they will be appropriately supported.”

It’s good and probably as far as the court can go at this time, but more protections are needed.

In the meantime, there may be a number of current and former judges across various jurisdiction who are shivering in their robes at the prospect of being un-wigged by their former associates.

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