“The ‘bad’ Roman Emperors of the first two centuries – Caligula, Nero, Domitian and Commodus – habitually had meted out to them, after their periods in office ended in violent death, the fate known as damnatio memoriae“.
So wrote Dicey Dyson Heydon in his Samuel Griffith Society lecture memorialising Sir Harry Gibbs in 2006. You don’t need to be a Latin scholar to get the drift: not so much nil nisi bonum mortuit as, erase the very existence of the monster from historical records.
This all came to mind recently on sightings of Dyse escaping from the deep freeze of his Robertson retreat.
Professor Gabrielle Appleby of UNSW Law was hot on the trail, publishing in the Nine newspapers A Kick in the Guts for Women: The legal professions re-embrace of a disgraced judge.
The sightings have been apropos the launching of Heydon’s legal tome, the self-published Heydon on Contract: Particular Contracts.
Self-published, of course, since his former publisher, Thomson Reuters cancelled him after he was determined in 2020 to have been a serious sex pest in respect of associates at the High Court, in the process destroying the hope and legal careers of talented women.
News also filtered back from Oxford that his invitation to deliver an annual course had been cancelled for similar reasons.
Heydon had gone to ground after the 2020 revelations, seen only at the men only Australian Club in Macquarie St.
The NSW Law Society promptly retreated when it was discovered that it had advertised Particular Contracts in its Monday Briefs to members.
The society announced a review of “its internal processes for approval and placement of advertisements”, adding that it remained committed to “promoting and advocating for safe work environments, particularly in the legal profession”.
But then there was another problem – Dicey had been allowed to slip into the society’s library over a period of months.
The NSW Bar librarian cottoned onto what was going on and promptly said “No” when asked to push the work in Bar News.
The launching of Particular Contracts seems to have attracted senior legal types, not to mention Abbeys’ Bookshop which hosted the show, and declared “… every practice and chamber should have their copy of this book”.
Among luminaries who attend the launch at the State Library were two female judges from the NSW Supreme Court with Justices Lions Den Lee and Ian Jackboots from the Federal Court, and the recently retired John Sackar. CJ Andrew Bell and former CJ Tom Bathurst did not attend, nor did the NSW Gov’nor Margaret Beazley.
Reading the welcome speeches for Jackman when he was elevated produces not just a request from Gummow for him to come back from Oxford as his associate, but that on joining the bar for the first years Jackman was under Heydon’s wing.
Nice to know that the nurturing has been remembered. Lionel Murphy’s relationship to Morgan Ryan, leading to a crisis in probity much later in life, also was built on such a debt.
Michael Kirby, even without a debt to pay, in the forward to the book wrote of its “erudite analysis … daunting specificity … mastery of the detail”. All in all, Kirbs declared it “an intellectual masterpiece”.
Word on the Street of Shame in Sydney is that CJ Andrew Bell hooked up with Dicey at the club just days before he gave a speech at the University of New South Wales dealing with the tricky topic of moral leadership – including this bit:
“Chief Justice Kiefel faced an extremely challenging crisis in relation to allegations made about Justice Heydon.”
Shortly after Heydon delivered a complimentary copy of his book to the chief justice. In fact, he has been seen trudging along Phillip Street delivering promotional brochures to chambers and their clerks.
So, it wasn’t just the book and its launch, but what was unfolding was an apparent rehabilitation of Dicey. The man was out and about!
“What message does it send if senior members of the profession, including former High Court judges and professional bodies, celebrate and lionise his intellectual contributions to the law?”
Not only had Heydon groped, leered and pestered, but hypocritically he pronounced on the sanctity of “black letter law judges” who must possess two values:
“One is a firm grip on the applicable law. The other is total probity.”
His probity in tatters, Appleby writes:
“Should … the findings of sexual harassment against him give the legal profession pause when considering his intellectual legacy?”
The answer to this rhetorical question is then provided:
“Of course, freedom of speech allows Heydon to keep writing and self-publishing his views. That’s not the issue here. It’s the celebration and endorsement of these views, by those well respected in the legal establishment, and the urging for lawyers to take them up. That is the issue”.
Does that mean he’s free to speak so long as he remains in his cave?
Is it possible for that powerful mind, which is a resource for the rest of us, to be celebrated, without celebrating the rest of the man?
The publication of a book does require associated commentary. What use is a book without some publicity? Those who could use it won’t have heard of it. Those who do hear of it will wonder as to its value in the absence of reference and review.
So once the the ogre is in print, lauding the work and the author emulsify into one and the same thing. There’s a launch party with drinks and nibbles. Old pals rally with plenty of pocket moistening and reticence disappears. Is Dicey back?
The dichotomy of creative brilliance and behaviour that damages the lives of others has long been the subject of tortured debate – from Caravaggio to Woody Allen.
What of St Saens music – the Carnival of the Animals, and his more serious concertos, particularly The Egyptian, his 5th piano concerto.
Throughout his middle years he habitually wintered in Algiers or Egypt. He was regarded as a pederast, yet his music persists and is enjoyed.
The French composer Vincent d’Indy and Richard Wagner were both vociferous antisemites, and yet their works are not banned.
Daniel Barenboim famously organised the Israeli Philharmonic to play Wagner, saying:
“Wagner, the person, is absolutely appalling, despicable, and, in a way, very difficult to put together with the music he wrote, which so often has exactly the opposite kind of feelings … noble, generous, etc.”
He called Wagner’s antisemitism obviously “monstrous”, but felt it must be faced.
The intellectual product can be separated from the behaviour, the one to be enjoyed, the other abhorred.
While Heydon has the freedom to write and inform, others have the freedom to continue to call out his predatory history. It’s not as though he did a John Profumo and redeemed himself by cleaning toilets for 40 years in the East End.
For property hunters, there’s an auction this Saturday for Dicey Dyson’s former matrimonial home at 24 Boomerang Street, Turramurra.
Meanwhile, where are we with the investigation into the bullying behaviour of a former senior Federal Court judge?