Dyson Heydon, Black-Letter Legalist

The necessary starting point for any discussion of Dyson Heydon is Sir Owen Dixon. In 1952 Sir Owen was sworn in as Chief Justice and professed his belief that there is: “no other safe guide to judicial decisions in great conflicts than a strict and complete legalism”.¹ In short, legalism demands: “the disinterested application by the judge of known law drawn from existing legal sources independently of the personal beliefs of the judge”.² This is no simple task. It requires the application of “strict logic and high technique”³ on the part of the judge. First and foremost, this article will present Dyson Heydon as an exemplar of Dixonian legalism in his commitment to the protection of judicial process, method and independence from the spectre of judicial activism.

The article is divided into two parts. Part I provides a detailed analysis of Heydon’s Quadrant dinner speech in 2002 (published as “Judicial Activism and the Death of the Rule of Law”, Quadrant, January-February 2003). This speech is the source of all understanding in relation to his future conduct on the High Court. Part II will look at his judicial career on the High Court, including an examination of some of his judicial and extra-judicial writings. Here it will be argued that, in spite of his high rate of dissent, which started around the time Robert French became Chief Justice in 2008, Heydon remained committed to Dixonian legalism. However, there are some complications that go with this argument, namely, his early Chapter III jurisprudence and his final tactical dissent in Monis v The Queen.⁴ Furthermore, his 2012 speech on judicial independence perhaps goes too far in its recommendations.

All up, this article hopes to paint a picture of a man who is fiercely independent, softly spoken but often scathing, highly intelligent, a devout Catholic, a brilliant writer, a lover of poetry and literature, a lover of history, a hater of cant, a hater of communism, a critic of the post-war human rights movement, a good friend to those whom he called friend, a formidable opponent to those whom he disagreed with, but, most importantly, a proper black-letter legalist.

1. Background: Legalism, Activism and Heydon’s Quadrant Speech

Sir Owen Dixon believed that constitutional cases and non-constitutional cases should be decided by recourse to legalism. In his day, as Heydon explained in his Quadrant speech, the dominant influence on the Australian common law was the English common law. Furthermore, the reproduction of many English private law statutes created “local uniformity and access to a body of valuable English decisions construing those statutes”.⁵ Heydon described a situation where:

Australian courts, like English courts, applied principles of stare decisis—not only internally, but in relation to English decisions. Thus Australian judges would generally follow a decision of the English Court of Appeal, safe in the knowledge that all other Australian judges would do so; and they all knew that the likelihood of the English Court of Appeal not following itself was slight.⁶

This created a climate that allowed for the restrained, consistent and somewhat predictable application of the law. At the same time, as new factual situations came before the courts, judges could extend or limit existing rules and principles in accordance with a Dixonian process of development and adaptation.

For Heydon, legalism guaranteed the rule of law in Australia and England. Citizens could be assured that judges were interpreting the law according to the books and incorruptibly. Citizens were equal before the law and thus protected from untrammelled discretionary power. This protection was assured because legal proceedings were overseen by “an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power”.⁷

However, the legal system as it existed then would change dramatically. In 1963 Sir Owen himself said that the High Court would no longer feel bound to follow the House of Lords if it thought the House of Lords to be wrong.⁸ Between 1968 and 1985 Australia started to move away from the decisive influence of the Privy Council, which culminated in the passage of the Australia Acts⁹ in 1986. Correspondingly, a new ethos emerged in judicial ranks in opposition to legalism. This new ethos was judicial activism. Heydon defines “judicial activism” as: “using judicial power for a purpose other than that for which it was granted, namely, doing justice according to law in the particular case”.¹⁰

The most common form of judicial activism is the deliberate decision of a judge to change the law in order to keep it up to date with changing economic, social and political ideas. Such an approach uses the law not as the touchstone by which the case at hand is to be decided, but rather as a possible starting point for developing a new system to solve a range of other cases. The “new system” created by the judge would serve to ameliorate the perceived shortcomings of the law as it existed on the books. The law would be made to stand in accordance with the contemporary “vibe” or shared sentiment the judge had somehow been able to detect within the community—including the international community. In truth, this kind of judicial activism allowed the progressive judge to use the law to further some political, moral or social agenda. For instance, former High Court Judge Lionel Murphy wanted to eradicate the legal biases that existed against “women, Aborigines, and the weak”.¹¹ Ultimately, Lord Reid supported judicial law-making of this kind on the basis that formalism is a “fairy-tale”.¹² We no longer believe, he argued, that there is only one correct, neutral answer to any legal problem. A response to that accusation is provided in Part II.

In spite of Murphy’s best efforts, the dominant ethos of the High Court would not change until the appointment of Sir Anthony Mason as Chief Justice in 1987. Sir Anthony appeared to support legalism in his early years on the court. For instance, in the case of Trigwell he said the High Court was “neither a legislature nor a law reform agency”¹³ and accordingly it should be reluctant to vary or modify settled common law principles merely because they might be thought to be ill-adapted to modern circumstances. Yet this adherence to legalism would not last. The Mason court handed down a number of decisions that made radical changes to the existing law, ranging from the recognition of native title in Mabo v Queensland (No 2)¹⁴ through to the widening of the law of negligence in Brodie v Singleton Shire Council.¹⁵ But the “worst of the excesses”¹⁶ for Heydon was the decision in Australian Capital Television¹⁷ that the Constitution contained an implied freedom of political communication. More on that in Part II.

In his Quadrant speech Heydon outlined numerous objections with judicial activism. For starters, there was the threat that it posed to the “essential judicial virtue” of probity. To him, activist judges are an “ambitious, vigorous, energetic and proud” bunch who feel it is their duty to “right every social wrong” in the hope of seeing the “judicial name in the papers”.¹⁸ Heydon hated the cant of these judges in much the same way conservatives hate the sanctimonious “virtue signalling” of the Left in contemporary political discourse. Of all the impressive quotes we can find from Heydon, a personal favourite is still his sardonic opening to his Quadrant speech in 2002, no doubt spoken pianissimo:

I am extremely honoured to have been invited to address this Quadrant dinner. I regard the institution as a vernal island which one can periodically visit as an escape from the great polluted oceans of cant washing around it.¹⁹

Heydon praised his friend Roderick Meagher, a former Supreme Court judge, for being a “hater of cant”²⁰ at his funeral service in 2011. Another threat to probity is excessive debate in judgments. As opposed to the application of “strict logic and high technique”, most judges revel in the excesses of modern judicial process. This is revealed in their written judgments, which Heydon criticised in the following terms:

But it does not follow that the court should record its journeys through the ages and from China to Peru, its ponderings, its Bildungsroman-like accounts of its own shifting sensibility, its speculations on why the law is different elsewhere and whether it should be changed here.²¹

The most common form of judicial activism is deliberate judicial change to the law. To this form of activism, Heydon sets out numerous objections. The first is that it rests on a contradiction. Judicial innovators are not bound by precedent. It follows that “brave new developments” in the law can become “entombed in the urns and sepulchres of mortality”²² with a simple change in the composition of the bench. Second, judicial law-making may erode public confidence in the law, which in turn may diminish the capacity of the law to command obedience. Finally, judicial law-making rests on a confusion of function. Compared to judges, politicians are better placed, more experienced and have the necessary forms of assistance to enact parliamentary legislation that reflects the popular will of people. Furthermore, judicial legislation can only be retrospective and it lacks the clarity, decisiveness and consistency of parliamentary legislation. All up, Heydon lamented that this radical change in judicial method during the Mason era meant that “the common law is freely questioned and changed. Legislation is not uncommonly rewritten to conform to the judicial worldview.”²³ Such an approach, he argued, fundamentally undermined the rule of law in Australia.

In summary, Gabrielle Appleby and Heather Roberts are right to say that Heydon’s Quadrant speech was less of a job application for the High Court and more of a “manifesto”²⁴ that sets out his support for Dixonian legalism and everything it entails. In Part II it will be shown that Heydon remained loyal to what he had said in that speech throughout his tenure on the High Court, even as he became the so-called “lonely dissenter”. However, an analysis of his judicial and extra-judicial writings as a High Court judge do reveal some complications. His initial Chapter III jurisprudence does sit uncomfortably with his avowed legalism. His decision to side with the minority in Monis does not make sense unless it is understood as a tactical dissent for his “swansong” judgment on the court. Finally, his 2012 speech on judicial independence perhaps goes too far in its proposals.

On the High Court: Heydon doing Dixon

Professor Frank Carrigan is a Macquarie University academic who is critical of legalism. Similar to Lord Reid, his gripe is with its claims to impartiality and objectivity. In an article for the Adelaide Law Review²⁵ he makes the outrageous claim that Dyson Heydon and Keith Windschuttle are “kindred spirits”²⁶ and that the “rule of law’ is a capitalist conspiracy designed to entrench the rights of the rich and powerful; judges are in on this conspiracy and help maintain the bourgeois oppression of the weak and powerless. Using Electrolux v Australian Workers’ Union²⁷ as a case study, Carrigan argues that there is “hidden bias” in Heydon’s judgment, that being to “provide a legal exclusion zone that precludes workers and unions from trespassing on the prerogatives of capital”.²⁸

In that case, the separate majority judgment of Gummow, Hayne and Heydon JJ interpreted the phrase “relating to industrial matters”, pursuant to s 170LI(1) of the Workplace Relations Act²⁹, in such a way as to find that a union payroll levy fell outside the scope of “industrial matters”. This was because a union payroll levy related solely to the relationship between unions and employees, not employers and employees. It followed that the union’s industrial action in support of the payroll levy was not “protected action” pursuant to s 170LI(2). The authorities supporting that conclusion can be traced all the way back to the Union Badge case³⁰ where Barton J gave a dissenting judgment which would gain majority support in the cases of Portus³¹ in 1972 and Re Alcan³² in 1994. Ultimately, the separate majority judgment is noteworthy simply because it is a “copybook example”³³ of legalist methodology. Any suggestion that the judges had some kind of hidden agenda to preserve existing power structures as part of a broader capitalist conspiracy is fanciful thinking.

Of course, criticism of legalism from university academics is not limited to Macquarie University. There is, somewhat understandably, a cabal of activists at my university, the University of New South Wales, headed-up by Messrs Williams, Dixon and Lynch. Having said that, it is intriguing to note that Professor George Williams supported Dyson Heydon’s appointment as Royal Commissioner into trade union governance and corruption in 2014.³⁴ At the time, opponents of the Abbott government were arguing that Heydon’s appointment was politically motivated because of his supposed “big-C conservatism” and his inherent opposition to trade unionism. Indeed, it may well have been suggested, incorrectly, that the majority decision in Electrolux evidenced that bias. Yet in spite of this, Professor Williams maintained in his Fairfax piece that Heydon was well suited to the job because of his “strong streak of independence”. This “strong streak of independence” would allow him to perform his duties without his judgment being clouded by any personal political beliefs he may or may not hold. Putting together the discussion of Electrolux and the comments of Professor Williams, we may conclude that legalism is not a cover for advancing a conservative brand of politics. There is a legitimacy to its claims of impartiality and objectivity. The same cannot be said of judicial activism.

The decision in Electrolux came a year after Heydon’s appointment to the High Court. In these initial years, Appleby and Roberts describe a situation where:

Excepting Kirby J, among the remaining six judges a pattern quickly emerged in which Heydon J frequently joined with Gleeson CJ, Gummow and Hayne JJ, converting the earlier dominance of these three judges into an unassailable majority bloc.³⁵

Appleby and Roberts suggest that Heydon “might have therefore justifiably felt quite comfortable” that the court’s jurisprudential and methodological trajectory “had changed back to the traditional formalism that he so revered”³⁶. However, the “ubiquity of their partnership seemed to diminish”³⁷ over the years as his confidence in the “commitment of even the court’s conservative appointees to a return to formalism”³⁸ began to recede. He “drifted into a different orbit”³⁹ according to Professor Andrew Lynch, which culminated in a “self-imposed ban on writing with any of his colleagues in the last year of his tenure”.⁴⁰ His rate of dissent increased dramatically. Indeed, it seemed as if Michael Kirby had “passed on the baton” to Heydon as the court’s most frequent dissenter upon Kirby’s retirement in 2008. At first glance, this was a surprising turn of events given the “low levels of agreement between them on the many cases on which they sat together” and given that both men “had publicly espoused markedly contrasting views of the judicial role”.⁴¹

However, Heydon’s frequent dissenting can be understood, fundamentally, as being driven by a disagreement about “the institutional constraints of the judicial function”.⁴² He remained committed to the protection of judicial process, method and independence at a time when the court’s commitment to the restoration of legalism had seemingly dissipated. This was not some “quixotic mission”⁴³ as Appleby and Roberts suggest. Legalism has been the dominant ethos on the High Court for much of its history. Its great exponents include such outstanding figures as Thomas Wells, Sir Victor Windeyer, Rear Admiral Harold Glass⁴⁴ and Sir Harry Gibbs.⁴⁵ Heydon was totally justified and not at all delusional for wanting a return to legalism and an end to judicial activism. He was no radical judge. In fact, he was the exact opposite. His dissents were aimed at preserving the integrity of the High Court and the rule of law in Australia.

It is generally accepted that his marked shift in tone came with the majority decision in Roach v Electoral Commission⁴⁶ in 2007. Henceforth, Professor James Allan argues, Heydon’s decisions evince a “real anger”⁴⁷ at the direction the majority judgments were taking Australian constitutional law. In Roach, the majority did not merely apply what Heydon called the “tactical compromise”⁴⁸ in Lange v Australian Broadcasting Corporation⁴⁹, it expanded the implied limitations on legislative power based on the text of ss 7 and 24 of the Constitution. Although Heydon agreed with Hayne’s dissenting reasons, over seven additional paragraphs he expressed his disappointment with Lange and the majority in Roach. Heydon believed the decision defied proper judicial process because it ignored tactical concessions made by the Commonwealth Solicitor-General. He warned of the “difficulties of tests turning on whether legislation is reasonably appropriate and adapted” to the fulfilment of a particular purpose” (at 224). Similarly in Monis he would describe the “appropriate and adapted” test as being “mysterious” (at 182). He reinforced the distinction between the role of the courts and the role of the legislature in a liberal democratic regime. Finally, he reminded the court that Australian constitutional interpretation “does not permit recourse” to international and foreign instruments and decisions (at 225). In doing so he singled out Kirby in saying that “the proposition … is denied by 21 of the Justices of this Court who have considered the matter, and affirmed by only one” (at 225). Ultimately, this case stands in stark contrast to his diplomatic treatment of Lange in the case of Coleman v Power⁴⁹ in 2004. Progressively his wording in constitutional law cases became harsher, until it got to the stage where he was commencing his dissenting judgments with the “pugnacious and irrefutably terse statement: I dissent”.⁵⁰  

Looking beyond those highly charged constitutional law cases for a moment, one of Heydon’s great dissenting judgments came in PGA v The Queen.⁵¹ Wendy Larcombe and Mary Heath provide a concise summary.⁵² In PGA, the issue before the Court was whether rape in marriage was a common law offence in Australia in 1963. In a five-to-two decision the majority found that it was. In his separate dissenting judgment Heydon J proved, in my mind, that it was not. The basis of the common law “marital rape immunity” was the irrebuttable presumption of marital consent that derived from Sir Matthew Hale’s statement in The History of the Pleas of the Crown (1736). For Heydon the authority of Hale’s proposition was beyond doubt. Via a meticulous historical study he pointed to both judicial and extra-judicial sources that acknowledged its existence in order to demonstrate its “enduring toughness [in] legal thought” (at 392). There was also Brennan J’s acknowledgment in the 1991 case of R v L that “a substantive rule of the common law was established by [Hale’s] declaration” (at 393). Heydon went on to disprove the contention that the rule had ceased to be a part of the common law by 1963. The suggestion from the majority that the immunity had somehow fallen away because of changing social circumstances demonstrated a lack of understanding about how the common law developed. Only “a court ruling at the time that it is dissolved” (at 402) could achieve that effect.

The majority’s partial treatment of statute law was also worthy of criticism. Legislation that was inconsistent with the immunity being a part of the common law was put forward but legislation that was consistent with the immunity was ignored. For example, the majority suggested that the Criminal Law Consolidation Act 1935 (SA) certainly killed off the immunity. But reforms in South Australia in 1976 made marital rape a criminal offence only when “aggravating circumstances” existed. It followed from the majority decision that women in South Australia were actually better protected under the law in 1935 than they were in 1976! Finally, Heydon refused to abolish the immunity and restate the law so that the appellant could be punished retrospectively. Such a decision would amount to an inappropriate act of “judicial legislation” and would offend fundamental rule of law principles. Ultimately, Heydon demonstrated that the majority decision rewrote history and changed the common law as it had existed at the time of offending. This was done in order to ensure that the appellant was punished for conduct that offended contemporary morals and standards. Such a decision, regrettably, amounted to an impermissible act of judicial activism.

So far it has been shown that Heydon stayed true to Dixonian throughout his time on the High Court. There are, however, two complications to that argument. The first is his initial Chapter III jurisprudence. In this area he was willing, for a time, to accept judicial expansion of constitutional protections and to put aside his opposition to the Kable⁵³ principle in order to overcome legislation that threatened proper judicial process and method. However, this conciliatory approach would not last. In the case of PSA⁵⁴ he finally refused to accept its fundamental flaws, and as if some great weight had been removed from his conscience, he launched into a scathing attack about its vagueness and uncertainty (at 369-370).

The second complication is Heydon’s final tactical dissent in Monis. Were it not his “swansong” judgment, Heydon may well have concurred with the all-female majority of Crennan, Kiefel and Bell JJ. To do so would have made sense given his earlier stance in Coleman v Power. In that case, Heydon had defended the value of civility in Australian political discourse. Like his friend Roderick Meagher, Heydon longed for a return to the “Menzies-Chifley standard” where politics was debated “intelligently, respectfully and politely”.⁵⁵ Indeed, in his Monis judgment Heydon criticised the entire High Court for “privileging political communication over the most fundamental of human rights, that of dignity”.⁵⁶

To concur with the majority would also have made sense given the objections he raised in Monis regarding a broad operation of the implied freedom of political communication. But instead, he decided to side with French CJ and Hayne J to form an all-male minority, knowing full well that the joint judgment of his female colleagues would prevail anyway pursuant to s 23(2)(a) of the Judiciary Act⁵⁷ (Gummow J did not sit pending his retirement). In writing his Monis dissent, Appleby and Roberts argue, Heydon intended to “grab his audience’s attention and direct them to future action”.⁵⁸ In terms of “grabbing his audience’s attention”, his judgment certainly does that. This was his “final and authoritative crescendo in his years of advocacy on and off the bench to return the Court to ‘proper’ judicial method”.⁵⁹ In particular, Heydon J’s inclusion of Rudyard Kipling’s sad yet intensely proud poem “My Boy Jack” in its entirety, retaining in full its poetic lines and form, was “an especially dramatic departure from the Court’s standard practice”.⁶⁰

In terms of “directing future action”, Heydon’s judgment was “sowing the seeds of the arguments an advocate might employ to overturn the implied freedom of political communication”.⁶¹ At first he had tried to be diplomatic. Then he became more scathing. By Monis he was “out of time”.⁶² With that in mind, he used his swansong judgment to put together the “miscellany of additional or overlapping points calling for inquiry” (at 181) for future litigants to use if ever granted leave to challenge the court’s implied freedom jurisprudence. Clearly Heydon had not given up hope that the court would one day return to legalism, and in doing so, right the wrongs of the judicial activism of the 1990s.

To hold such hope is not to be backward or “quixotic”. But to support Heydon’s proposals in his 2012 speech on judicial independence⁶³ is a bridge too far for this author. In his Quadrant speech, Heydon had praised the “fiercely independent judge” of the common law tradition who applied the law on the books without any bias or agenda. Yet he was fearful that the practice of writing joint judgments, the distribution of drafts and the “now fashionable judicial conference”⁶⁴ were internal threats undermining the individuality of modern-day judges. At the start of his speech, Heydon warned his audience that he “must not be taken to be speaking about”⁶⁵ his own experiences on the bench. He had served on two senior appellate courts in Australia, so that disclaimer is hard to accept.

Former Federal Court Judge Peter Heerey provides a concise summary of the widespread objections that many raised in response to Heydon’s speech.⁶⁶ For starters, he dismisses Heydon’s claims that “excessively dominant judicial personalities” drive the court’s decisions, that judges could be “seduced by suave glittering phrases” at judicial conferences and that the “herd instinct” prevails.⁶⁷ “Judges on the Australian superior courts,” he argues, “are unlikely to be shrinking violets.” Between the extremes of tactical concessions that undermine the judicial function and no off-bench discussion at all, there is an “infinite range of possible discourse”, he argued. Indeed, “most human decision-making is improved by frank discussion”. Of course, this is “not to diminish the central role of argument by counsel in open court, and dialogue between Bench and Bar”. But at the same time, Heerey contends, “litigants cannot expect that after argument judges retire to their cells like Trappist monks, only to reappear when delivering individual judgments, uncontaminated by mutual discussion”.⁶⁸ In the case of conferences before hearing and the allotment of work Heerey suggests that this is “no more than a sensible way of sharing a (usually) heavy workload and avoiding duplication”. “It does not mean an abdication by non-allotted judges of their professional obligations.”⁶⁹ Heerey confirms that parties should be given the opportunity to address a possible determinative point which has not been referred to at the hearing, pursuant to Mason CJ and Brennan J’s statement in Pantorno.⁷⁰ However, this does not mean there is an obligation “to require further submissions every time the appellate court, by means of draft judgment or otherwise, discovers an authority not referred to at the hearing, or some further argument in support, or rebuttal, of some point already raised in the oral hearing”.⁷¹

In terms of the separate versus joint judgment debate, Heerey agrees that separate judgments are an important historic feature of the common law tradition. That being said, “there is a lot to be said for joint judgments”.⁷² In particular, joint judgments can prevent needless repetition. They can provide much more clarity and certainty. Contrary to what Heydon suggested in his speech, “judges can grasp the flow of a chain of reasoning without writing out a separate judgement”.⁷³ Heerey concludes:

An appellate judicial system which dispensed with conferences, drafts and joint judgments would mean longer and more delayed and more expensive cases with no demonstrable improvement in the quality of justice delivered …

The basic problem with the absolutism of a Heydon regime is that it would impose the one modus operandi on all judges on all appellate courts for all cases. Paradoxically, an approach with the stated aim of protecting judicial independence would have the opposite effect.⁷⁴

We must bear in mind that Heydon gave his 2012 speech at a time when his frustration with his judicial colleagues had reached its climax. That same year he did not join with any other judge on the High Court. This situation was something that Lynch and Williams had “never observed before”.⁷⁵ To what extent Heydon delivered his speech with bona fide good intentions, and to what extent it was fuelled by anger and frustration, is something we can only speculate about. Regardless, the critics are right to say that an outright ban on judicial conferences, the distribution of draft judgments and the writing of joint judgments is a radical proposal that is simply impractical. Having said all of that, the complications and criticism set out above do not undermine Heydon’s status as a proper black-letter legal formalist. It merely adds some complexity to his judicial career on the High Court.

Conclusion: Heydon doing Heydon

The preceding discussion has provided a comprehensive insight into the circumstances leading up to Dyson Heydon’s appointment to the High Court and his conduct on that court. However, it has missed some memorable moments in which Heydon was truly in his element on the bench, some of which are captured, begrudgingly, in Justinian magazine.⁷⁶ For starters, his criticism of the post-war human rights movement provides us with a brilliant flourishing of his intellectual prowess. If the opening to his Quadrant speech is a personal favourite, then this passage from Zentai⁷⁷ (at 243) is a close second:

Analysis should not be diverted by reflections upon the zeal with which the victors at the end of the Second World War punished the defeated for war crimes. The victors were animated by the ideals of the Atlantic Charter and of the United Nations. The Universal Declaration of Human Rights was about to peep over the eastern horizon. But first, they wanted to have a little hanging.

There is also this wonderfully dark passage from Momcilovic⁷⁸ (at 183):

The odour of human rights sanctity is sweet and addictive. It is a comforting drug stronger than poppy or mandragora or all the drowsy syrups of the world. But the effect can only be maintained over time by increasing the strength of the dose. In human rights circles there are no enemies on the left, so to speak.

Heydon’s hatred of communism is a recurring theme that appears in some of his judicial and extra-judicial writings. Take, for instance, this excerpt from Thomas v Mowbray⁷⁹ (at 486):

It is probably right to say that it was only after the collapse of the Iron Curtain nearly forty years later, that all of the designs of the communist state upon the rest of the world, and the ruthlessness with which it was prepared to pursue them, were fully realized and acknowledged. 

The furore that followed the High Court’s decision in Farah Constructions v Say-Dee⁸⁰ is also worth mentioning. The joint majority judgment in that case is described as having a “distinctly heydonesque flavour”⁸¹. In it, the New South Wales Court of Appeal was harshly reprimanded for its “grave error” in judgment (at 149). For example, the changes it made to the first limb of Barnes v Addy⁸²: “were arrived at without notice to the parties, were unsupported by authority and flew in the face of seriously considered dicta uttered by a majority of this Court” (at 159). From that case came the controversial finding (at 91) that:

Intermediate appellate courts and trial judges in Australia should not depart from the decision of an intermediate appellate court in another jurisdiction unless it is “plainly wrong” and that “seriously considered” dicta of the High Court must be followed.

This provoked a strong rebuke from the former President of the NSWCA Keith Mason in his 2011 article “Throwing Stones: A Cost-Benefit Analysis of Judges being Offensive to Each Other”⁸³ and in his swearing-out speech in the Banco court in 2012. In PGA, Larcombe and Heath criticised the entire court for missing the opportunity to clarify what it had said in Farah Constructions.⁸⁴

In terms of what Heydon has done since his retirement, his appointment as Royal Commissioner into trade union governance and corruption stands out. He has also appeared at various institutions to deliver a paper on Catholic persecution.⁸⁵ Further discussion of such activity goes beyond the remit of this article.  

In summing up, it is worth reasserting what has been argued throughout. Dyson Heydon is a proper black-letter legalist. This is in spite of some complications and criticism that can be attributed to his time on the High Court. Accompanying that primary argument, it has been shown that Heydon is a truly fascinating man. For a law student, delving into his judgments and his extra-judicial writings is like visiting some vernal island for those of us who long for an escape from the sanctimonious diatribe of the Left.

Hopefully his example will inspire a future generation of lawyers to continue to challenge judicial activism in all its forms. Hopefully it will inspire future lawyers to continue to practise the “strict and complete” legalism of Sir Owen Dixon that Dyson Heydon so vigorously defended throughout his time on the High Court.

Timothy Litherland is a law student at the University of New South Wales.