Mark Leibler AC: ‘Dyson Heydon can and should be divested of his honour’

This piece is part three in a series. For the full series go here.

In the following letter to Crikey, Mark Leibler AC, pre-eminent tax lawyer and senior partner at Arnold Bloch Leibler, provides his view of the Order of Australia constitution, and his previous communications with the Council of the Order on the matter of Dyson Heydon’s honours. 

I don’t view it as my business to arbitrate every call on who should and shouldn’t have their Order of Australia appointment cancelled. I most certainly do see it as my business to take a strong stand against sexual harassment and abuse of women in the legal profession.

Untested allegations of sexual harassment should not be sufficient to trigger the cancellation of an award.

In the case of Dyson Heydon, of course, an independent investigation commissioned by the High Court validated the allegations of six former associates of the judge that he had sexually harassed them.

Learning of the behaviour of one of seven judges who presided over the institution that sits at the heart of our justice system was beyond appalling to me. I said as much in a letter to Chief Justice Susan Kiefel, expressing my gratitude and support for her strong words and actions.

As a matter of principle, and in line with a clause in the terminations and cancellations ordinance of the Order’s constitution which allows for termination or cancellation where an individual has behaved or acted in a manner that has “brought disrepute on the Order”, I believed at the time (and still do) that a clear finding of serious sexual misconduct by an independent inquiry should be a sufficient basis for Dyson Heydon to be stripped of his status as a Companion of the Order of Australia.

I sought clarification from Government House and the response I received in September 2020, in the form of a statement by the chairman of the Council for the Order of Australia relating to two other potential cancellations, made it clear that the council did not share my interpretation of its constitution.

The statement included a specific reference to the clause from the terminations and cancellations ordinance, indicating that the council would not act to cancel an honour in the absence of a legal finding of a recipient’s guilt by a court or administrative tribunal.

The reference read as follows: “In the council’s view and as a general principle, for the Order to be brought into disrepute a conviction, penalty or adverse finding must have occurred. In essence, the council recognises that the law prescribes behaviours, and expressions, which are abhorrent to society and therefore uses law as the threshold for termination and cancellation.”

I do not agree with this interpretation of the constitution and maintain the view that Dyson Heydon can and should be divested of his honour. My conviction on this has only been reinforced by the attorney-general’s recent announcement that the Commonwealth government had reached legal settlements with the women Heydon harassed, and provided them with a formal apology.