The history boy
Friday, November 18, 2011
Justinian in Dyson Heydon, High Court, Procrustes

High Court judges love the adornment of historical learning ... Dyse leads the way ... History-laden scornful asides ... Even an assault on the Vic AG for daring to introduce his human rights legislation ... Procrustes delves into the separation of criticisms 

High Court judges love to drape their pronouncements in artful asides, to remind readers of their worldliness (and artfulness) - appearances to the contrary. And what better drape than historical reference, coming as it does with a penumbra of personal values, innuendo in waiting.

Sometimes its brief and dry: see Mason CJ, Deane and Dawson JJ in Webster v Lampard (1993) dealing with Sgt Lampard's eviction of the tenant Webster from a Nullarbor roadhouse:

"Why was it that, apparently under his authority, a police vehicle 'escorted' Mr Webster for some one hundred kilometres along the road towards Perth and thereby, in the argot of another West and another time, effectively 'ran him out of town'?"

Kirby J showed a preference for modern German history, as might be expected from a man whose idea of an opening gambit on a Saturday night was: "So what do you think of von Ribbentrop". 

AG (Vic) v Andrews (2007) presented an anodyne picture of the Prussian and then German development of workers compensation, while Fardon (2004) allowed for a cutting comparison with Nazi courts, which did not require direct orders to reach the desired result, leading to this comment from Kirbs:

"In the Communist Party Case, Dixon J taught the need for this court to keep its eye on history, including recent history." 

McHugh J kept it lighter in Coleman v Power (2004) with Lloyd George scoring at the expense of Sir John Simon. 

For those who can't remember the difference between Sir John Simon and Viscount Simonds, and thought McHugh rather recondite, little did you know what was waiting in the wings, with Dixon CJ in the Communist Party case tattooed on his forehead.

Heydon: original history boyI'm talking here of Heydon J, the original history boy.

Thomas v Mowbray (2007), involving terrorism, provided a perfect backdrop for Heydon to resurrect the Cold War:

"… 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.

Some examples include 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."

Aktas v Westpac Banking Corporation Limited (2010) allowed Dyse to let his penchant for antics, not often on public display, out for a gallop:

"Had Churchill, whose name is inextricably linked with 1940, been aware of the decision, he might have made the remark he made in another context: 'It makes you feel proud to be British'."

The other context, of course, involved a member of parliament, a guardsman and a cold February night. See here for details

South Australia v Totani  (2010) provided opportunity for Heydon in dissent to pillory Soviet Communism, Bills of Rights and Adelaide in one paragraph:

"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'."

Plaintiff M70/2011 (2011) gave us a reference to an eighteenth century French religious, the  Abbé Sieyès. 

Momcilovic v The Queen (2011) brought the slightly more mystifying reference to the French Charter of 1814 (que?), and much more, including the shirt of Nessus (brush up your classics to keep up with this man).

In Plaintiff M70 Dyse gave Cathy Branson at the Human Rights Commission a complete thrashing for her intervention, holding up her earlier judgments as Federal Court judge for ridicule. 

But the beating handed out to the Victorian Attorney General who introduced the Charter of Rights at issue in Momcilovic raises more subtle constitutional issues.

" '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 ... [and]  Australia's benighted isolation on a lonely island lost in the middle of a foggy sea must be terminated." 

The embattled Commons in September 1939 (Dyse does like bellicose struggles) and South Pacific (make mine a Bloody Mary), all in one paragraph. But when he vented his feelings about Bills of Rights in general, things got even stickier: 

"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. [Come on, brush up your Shakespeare: it's Othello. The odour of sanctity is a very Catholic concept for a lad brought up in a very dry Anglican tradition, but allusions are where you find them].

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." 

The problem in the onslaught on the Vic AG is illustrated by Heydon attack on activist judges in the famous Quadrant speech of 2003.

The tone throughout was that judges must stick to judge things, and politicians do the baby kissing and whatever else it is that politicians do.

One of those things is introducing legislation into parliament, and such Bills may, if acquiring the requisite majorities, become law.

It is one thing to hamstring Bills of Rights by historical innuendo and attachment to lesser breeds without the law, such as Soviet Russia, but gunning down a politician for just doing his job seems another.

Since the motive is quite obviously dislike of the content of the legislation, may one wonder if the Rubicon has been crossed in the separation of criticisms, if not Powers?

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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