Who can forget Dyson Heydon’s fabulous fume about judicial activism at the Quadrant dinner on October 30, 2002.
In February the following year Dice (right) was sworn in to fill Mary Gaudron’s vacancy on the High Court. The speech, it was claimed by friend and foe alike, was a sort of job application.
Quadrant published the speech in its edition of January-February 2003. But it was bowdlerised. The juiciest bits were removed to protect sensitivities, because before it was published it was known that Dice had secured the High Court job.
See published version of speech in Quadrant
The original, unexpurgated version of the after-dinner address to the rheumy codgers at the Quadrant knees-up has now fallen into Justinian’s hands and for the sake of completeness we’re duty bound to ventilate the cut bits.
It is one thing to poke one’s tongue out, as long as one is not caught doing it in public. What is quite inexplicable though is the excision of some quite funny bits from the speech.
The first chop was no further into the oration than the second paragraph and consisted of a swipe by Dice at the Mason court, along with a sneery, well-worn joke (whose provenance was unattributed but is believed to have been told about Margaret Thatcher):
“Judicial activism is often associated with young judges, but the most activist of all in our country have been quite old people apparently in a hurry the majority justices of the Mason High Court. Certainly those judges could seem old. When the young and vigorous Gummow J was appointed in 1995 to replace Mason CJ, on his first day the other judges held a lunch for him. The waiter asked him what he would like. ‘Sirloin steak,’ he said. The waiter said: ‘What about the vegetables?’ He replied: ‘They can order for themselves.’
The High Court presided over by Mason CJ has been much praised even flattered. When he retired, a three-day conference attended by distinguished lawyers from all over Australia and all around the world was held in his honour. There is a centre at a university law school named after him. His colleague, Sir William Deane, who left the court soon afterwards, has also been flattered. This is a natural thing. The late Mr Justice Harold Glass used to say that on no account should judicial flattery be interrupted, however unsatisfactory the state of the court’s lists.
Judges like flattery because judges are only former barristers, and the strong egos of barristers require flattery to be applied with a trowel. In the days when Harold Glass was a Queen’s Counsel he was leading Andrew Rogers on one occasion. As they left the court together, Rogers said: ‘Harold, that was absolutely magnificent. That was the best cross-examination I’ve ever seen.’
There was a pause during which silence fell between them. Glass broke it by saying: ‘Well, don’t stop. Go on!’ ”
Dice then proceeded to tell the dinner guests about the essential judicial virtue of “probity”, and how it can be damaged by various “pressures”. One of these pressures is a judicial temptation to see the judicial name in the newspapers, a temptation that by and large, he said, has been successfully resisted.
However, removed from the published version of the speech was his jab at some of the Right’s figures of special loathing:
“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 V111 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.”
The gummy dinner codgers were beside themselves with glee, a pleasure denied to the readers of Quadrant.
Another intriguing edit was made in the context of Heydon’s belief that radical changes to the common law have been made, of a kind that would not have been made before the 1980s. If Murphy J was the first “deliberate innovator” in the High Court (“justice tempered with Murphy”), he was not the last. “Among the greatest innovators of them all, until he retired in 1995, was the once cautious Sir Anthony Mason.”
Dice went on to give the guests the following waspish observation, hacked from the officially released version:
“Of course there has, with respect, been much admirable work done by the court in the 1980s and 1990s. But, as the French diplomatic phrase has it, I must find another occasion on which to express my esteem. When the court adopted an activist function, the majority judges tended, like other contemporary intellectuals, to claim the two-fold privilege of changing their opinions at will, and of being infallible in every change. The expression ‘judicial consistency’ came to have an oxymoronic quality, like military intelligence or police culture. The condition of the Australian judiciary came to illustrate another of Robert Conquest’s laws: ‘Every organization appears to be headed by secret agents of its opponents’.”
Finally, also on the cutting room floor was this slice of amusement about how sometimes there can be no problem achieving judicial unanimity:
“In his first case in the New South Wales Court of Appeal, a damages appeal from Sully J, Meagher JA dealt with the judgment of Kirby P in the following way. At the end of argument Kirby P uttered the following graceful words: ‘It is quite beyond my ability to improve on the reasons for judgment of the learned trial judge, Mr Justice Sully. I would dismiss the appeal.’ Meagher JA then sadly remarked: ‘This is indeed a most lamentable state of affairs, but I agree that it is quite beyond the ability of Mr Justice Kirby to improve on the reasons for judgment of Mr Justice Sully’.”
Such mirth, such fun – rather miserably overborne by wimpishness on the eve of joining Kirbs on the same bench.