Few figures in the pantheon of the NSW barristers’ trade union are more saintly than Sir Garfield Barwick. Dyson Heydon qualifies as a modern day hero in the same mould - brilliance at the law, steadfast adherence to conservative values, rising to dizzying heights in the service of the nation.

Why wouldn’t Heydon want to sing the praises of Barwick at a Liberal party event? Barwick, the man who, as chief justice of the high court, secretly advised Sir John Kerr on how to dismiss the Whitlam government and who steadfastly crafted the most artificial interpretations of the Tax Act for the benefit of the big end of town.

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This is no mere saint; Barwick is a deity, up there with Zeus.

George Brandis, the attorney general, has done his best to recast this week’s invitation affair: it was not a fundraising event to which Heydon had been invited and it was scarcely a Liberal party event at all.

The attorney general said this in the face of an invitation to Liberal lawyers emblazoned with the Liberal party logo and a message saying that “all proceeds from this event will be applied to State election campaigning”.

The organisers even notified Heydon of its Liberalness: “As you know, although nominally under the auspices of the Liberal Party lawyer’s professional branches, this is not a fundraiser.”

Tony Jones, on Lateline, made much of the “as you know”. But Brandis was having none of it: “Look Tony I’m not going to parse email exchanges between individuals ...”



Lawyers are fond of saying things like, “justice must not only be done, it must be seen to be done,” which doesn’t leave much room for wondering how the work of the trade union royal commission might now be seen.

Even before the Liberal party invitation blew up, Heydon’s conservative worldview was widely-known. That has often reflected in the way he applies the law, although the outcomes are not necessarily always conservative.

On no account can it said that Heydon would see himself as the government’s man. That is out of the question.

That is not to say the government’s doesn’t see him as someone, not only with the necessary legal credentials, but also the right warrior ideology.

We can discover this warrior quality in his high court judgments, where we get a picture of a man who doesn’t like bills of rights, “judicial activism”, or the Commonwealth asserting it has the power to reorganise cigarette packaging.

Often he expresses his reasons in extravagant, sometimes enjoyable, language.

In the Dr Jayant Patel case, dealing with pre-trial prejudice, he said, with an appropriate sprinkle of Latin, that “In Queensland, the appellant was seen as a hostis humani generis.”

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For added clarity that’s, “enemy of all mankind”. He loves these arcane historical flourishes.

Again, in Patel we found:



It may be inferred from the pre-trial publicity that there was great pressure on the prosecution to put the case against the appellant on its widest possible basis. ‘There is an accumulative Cruelty in a number of Men, though none in particular are ill-natured. The angry Buzz of a Multitude is one of the bloodiest Noises in the World’.

That was straight out of the 1750 classic A Character in King Charles the Second, by George Savile, the Marquis of Halifax.

In Zentai, the case involving a fight over a proposed extradition to Hungary of a man to face questioning over an alleged war crime, Heydon couldn’t resist a backhander to the post war declaration of human rights:



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 was another history lesson in Thomas v Mowbray, the 2007 case about control orders. It was a good opportunity for the judge to wax on about Communism, Cold War and the Soviet Union. He gave some examples of the “designs of the communist state”:

... the horrors of the Gulags, the scale of the political murders during the reign of Stalin and the 1940 Katyn massacre of Polish military officers. The extent of Soviet penetration of western agencies, including, for example, by the ‘Cambridge Spy Ring’ consisting of Kim Philby, Donald Duart Maclean, Guy Burgess and Anthony Blunt, did not become apparent until well after the Iron Curtain had fallen.

Heydon saw in the 2010 case of South Australia v Totani, also about control orders, another opportunity to pillory Soviet communism, Bills of Rights and Adelaide, in one splendid, if bewildering, paragraph:

Lord Scott’s proposition, notable for its cautious unwillingness to prejudge the French and Soviet dictators, was much more specific than Lord Hope’s. It is important to preserve a sense of proportion. Perhaps the present state of affairs in South Australia has its dolorous aspects. But life in the Athens of the South now is very different from life in the Athens of the North when delations were common while Tiberius ruled the Roman Empire. And it is very different from life in the Union of Soviet Socialist Republics in the days when ‘the wonderful Georgian’ was responsible for administering the bill of rights provisions contained in the 1936 Constitution, and Harold Laski was ‘lecturing about the beauties of the Russian system’.

Momcilovic v The Queen (2011) saw Heydon at his high water mark of indignation, and eccentricity, about human rights. The case was about whether Victoria’s Charter of Human Rights and Responsibilities was inconsistent with Commonwealth law. Here’s the judge in full flight:

‘Speak for England!’ cried out Leo Amery, and the Attorney-General for the State of Victoria seems to have decided to speak not just for Victoria, but for all Australia. The emphasised words are strong words. They send the message that Australia’s benighted isolation on a lonely island lost in the middle of a foggy sea must be terminated.

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A bit further on he was reaching for Othello:

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.

In May 2013 he published, in Rodney Cavalier’s private newsletter, his top 10 favourite books from “the nineteenth century”. To give as good a guide to the man as anything else, here they are:

War and Peace by Leo Tolstoy



Mémoires d’outre Tombe by Francoise-René, Vicomte de Chateaubriand



Democracy in America by Alexis de Tocqueville



History of England from the Accession of James 11 by Thomas Babbington Macauley



Liberty, Equality, Fraternity by James Fitzjames Stephen



Paroles d’un Croyant by Abbé Lamennais



The Autobiography of an Unknown Indian by Nirad C. Chaudhuri



Collected Poems by Rudyard Kipling, and



The Federal Story by Alfred Deakin



By now we can fairly say, that we can see the direction the report of the royal commission on trade union governance and corruption is likely to head.

Brandis defended Heydon in typically florid terms on Thursday: “He has an absolutely stainless reputation for punctilious integrity.”

Yet this was the same man who, in what is regarded as his job application speech at a Quadrant dinner for Mary Gaudron’s vacancy, rather nastily attacked Sir Anthony Mason and the high court under his chief justiceship. His main complaint was “judicial activism”, which went down well with the dinner guests.

Apart from Mason, he attacked chief justice Alastair Nicholson of the family court, Michael Kirby and, of course, Lionel Murphy.

A bowdlerised version of the speech was published in Quadrant after Heydon’s appointment to the high court, with the personal attacks removed. Here’s one bit that was heard by the Quadrant guests but not seen by readers of the magazine:

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There are of course special cases. There is Chief Justice Nicholson of the family court. Introducing him to the press release was like introducing King Henry VIII to the idea of matrimony. While Nicholson CJ tends to confine himself to the admittedly wide affairs of the family court, others believe in speaking out off the bench on much wider questions. One often sees letters to the editor with the statement ‘We cannot be silent’ signed by people, for example Kirby J or Wilcox J or Fitzgerald J or Einfeld J, about whom that was never in question.

Another judge, also by the name of Mason returned the fire. Keith Mason, in his 2008 retirement speech as president of the NSW court of appeal let Heydon have it with both barrels. He didn’t name him, but everyone there knew exactly who he was referring to.



Mason accused the high court of being “haughty”, adopting “blinkered methods”, asserting a “monopoly in the essential development of aspects of the common law”, shutting off “the oxygen of fresh ideas” and making unattractive personal swipes at other judges on intermediate appellate courts.

We could go on and on. But that’s enough background to understand why the man Dyson Heydon could be seen to be out of step with community values and expectations – and why he’s in political strife right now.