The Honourable Dyson Heydon AC QC: the case for the prosecution

The Honourable Dyson Heydon AC QC is still his official title. Occupation: barrister (currently non-practising).

Breaking it down, “the honourable” appellation is by tradition a perk of being a current or former High Court judge, kept for life. AC means he is a Companion of the Order of Australia, the highest civilian rank in the Australian honours system. QC is for Queen’s Counsel. And his name remains on the roll of barristers kept by his home jurisdiction, the Supreme Court of New South Wales.

After Heydon was found to have sexually harassed six female associates by the Thom report, which the High Court chief justice accepted with sincere expressions of shame and apology, he did two things: denied the allegations and quietly did not renew his practising certificate. Consequently he is unable to practise as a barrister. His titles and honorifics, however, remain.

Before 1992 in NSW, Queen’s counsel were appointed by the state governor on advice from the attorney-general. The title was abolished that year, and replaced by the Bar Association’s system of senior counsel or SC. SCs are regulated by the association, but QCs whose appointment predated the change kept their special status and remain outside the new system.

This means that Heydon’s commission as a QC is still a matter solely for the governor of NSW, currently Her Excellency the Honourable Margaret Beazley (also AC, QC and a former judge). She has the power to take back the title; as a matter of convention, she would not do so except on the attorney-general’s advice.

There is precedent: in 2008 the disgraced former Federal Court judge Marcus Einfeld had his commission as a QC revoked by the governor on the attorney-general’s recommendation. The push for this to happen had been initiated by the Bar Association after he pleaded guilty to making a false statement on oath.

When you become a solicitor or barrister, the first thing you do is physically “sign the roll” kept by the Supreme Court, signifying that you are now a lawyer of that court and owe your primary duties to it. Your name remains on the roll forever, even after you cease practising.

When a lawyer has been “struck off”, the literal meaning is that their name has been removed from the roll, although actually that is rare. Usually what has happened is that their practising certificate has been cancelled so they cannot continue working as a lawyer, but they remain on the roll.

The true striking off of one’s name can still be done in extreme cases. The procedure would be for the Bar Association to take action against Heydon in the NSW Civil and Administrative Tribunal, asking it to make an order recommending the removal of his name from the roll. That would then go to the chief justice of the Supreme Court of NSW (the just-appointed incumbent is Justice Andrew Bell SC), who has the power to do it.

Ultimately, both the revocation of Heydon’s QC commission and his removal from the roll are discretionary matters, for the governor and chief justice respectively. There is no legal process that can force either of them to do it, as is the case with his AC (which is in the hands of the governor-general).

There is an ample and unarguable basis for all of these steps to be taken now. The findings against Heydon followed a due and proper process. Unquestionably he has been found to be not a fit and proper person to hold on to any of his labels of status. The Bar Association should have already moved on these matters and it should not delay any further.

The practice of superior court judges being styled “the honourable” seems to be a thing of tradition rather than regulation. I don’t think anyone has the power to take it away, but equally there is no good reason for anyone in any context to continue to use when referring to Heydon.

There’s plenty more.

Some of his textbooks are still in print. On the High Court website, Heydon remains listed among all the former judges of the court, his full spectacular biography of legal achievements recorded — but no mention of his disgrace. Likewise his portrait remains in the courthouse, unqualified. Should it be taken down? Perhaps. Or perhaps better, an appropriate note placed on it to inform any passer-by that the highest court once housed a man who didn’t deserve to be there, and that it’s sorry for that mistake.

None of these are difficult issues to resolve. Heydon cannot and should not be erased, any more than we should pretend James Cook didn’t land at Botany Bay and trigger what followed. What matters is the truth, good and bad.

Heydon’s judgments will live forever, as will his textbooks and the rest of his professional legacy. The graces and honours which society bestowed on him were, it turns out, undeserved, and that should be made right by taking all of them back. His name, wherever it appears, should for all time be prominently associated with the acts he perpetrated and the careers he destroyed.

By these means we learn.