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September 27, 2021

Advocacy, arrows and activism

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Paul Bibby

Part one of David Heilpern’s life inside the magistrates’ tent

Becoming a magistrate was never part of David Heilpern’s plan.

As an advocate for, and defender of, disadvantaged groups, he had always been happy working outside the system – writing books and articles, teaching students, and representing those in need.

Then, at age 35, a meeting with the then NSW attorney general Geoff Shaw  – while negotiating electoral preferences – opened up an unexpected path.

‘It came out of the blue really,’ Heilpern says of the 1997 meeting and subsequent invitation to apply for the position of magistrate.

‘I’d already seen a lot of injustice and I suppose I thought I’d better try sitting inside the tent, pissing out for a while, rather than pissing in from the outside.’

Twenty-one years later, after a colourful and impactful career, Mr Heilpern has just hung up the gown for the last time.

Freed from the restrictions of office, he is finally able to open up about his precedent-setting decisions, vicarious trauma, and the state’s ‘nonsensical roadside drug-testing laws’.

Baptism of fire

As a progressive barrister and academic who was, at the time, the youngest person to be appointed to the bench in NSW, Mr Heilpern was immediately in the spotlight.

‘My appointment was met with a lot of negative press, particularly from the Daily Telegraph [News Corp], the Police Association, and the shock jocks,’ Mr Heilpern says.

‘Until the day I was sworn in, I was half convinced the government was going to back out. 

‘But Shaw remained steadfast, and the decision went through cabinet.’

The young magistrate’s first posting was to Dubbo, where he was immediately confronted by the extraordinary overrepresentation of Aboriginal people in the justice system.

‘There were times where the entire court list would be Aboriginal,’ he says.

‘It really was appalling. 

‘I made a couple of decisions that again meant that I was in the firing line personally and subject to attack from the conservative media.’

One of these key decisions is the so-called ‘fuck case’.

For years the police had been able to charge people – including a disproportionate number of Indigenous Australians – with ‘offensive language’ for directing that expletive toward police, leading to thousands of arrests.

However, when a case came to Dubbo Court in  which a young Indigenous man told two police to ‘fuck off’ after they sought to take his bike, Mr Heilpern threw it out. The decision had huge implications, not only for Dubbo but the entire state.

‘What I saw was just a massive reduction in these cases coming before the court,’ he says.

‘My daily list suddenly shrank, because police stopped charging people with offensive language.’

The Carr Case

The other, perhaps even more crucial, case also had to do with offensive language, but was far wider in scope.

The accused, a man known as Carr, was also arrested for telling the police to ‘fuck off’.

‘When they told him he was under arrest he went spare,’ Mr Heilpern recalls.

‘He threatened them, resisted arrest there was some push and shove, and he ended up being charged with the quadrella – resist police, intimidate police, assault police, and offensive language. The thing was – the arrest for offensive language was completely unnecessary.

‘To deprive someone of their liberty for something that carries the maximum penalty of a fine is ridiculous.’

In a crucial decision, the magistrate found that because the original arrest was unnecessary, the subsequent charges also did not stand, because the evidence that resulted was illegally or improperly obtained.

But the matter didn’t end there. The NSW Director of Public Prosecutions challenged the decision, taking the matter all the way to the NSW Supreme Court.

In a judgment with very significant and lasting consequences, the Supreme Court upheld Mr Heilpern’s decision. 

‘I think it opened the door, not only in the Aboriginal community, but elsewhere, to a different kind of policing,’ Mr Heilpern said.

The decision received widespread acclaim from those concerned with social justice, but the conservative media had a field day.

‘It was the era of a lot of judicial criticism from politicians because of cases like Mabo.

‘Obviously my piddling little decisions were not in the same category as that, but they fitted the same cloth for attack. 

‘So I suppose I felt in the first few years, pretty permanently in the spotlight. 

‘But I don’t think I could have slept at night without doing whatever I could to address the relationship between police, Aboriginal people and the courts.’

As challenging as the criticism from the conservative media and politicians was, there were more serious hurdles to come, including some which threatened the physical security of Mr Heilpern and his family.

Find out what happened in next week’s Echo and Echonetdaily.


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5 COMMENTS

  1. Go David – a seasoned justice activist! Let’s hope the coming generations of lawyers will be as enlightened.

  2. I hope David writes a book and gets it published. It would make for great reading and shine a much needed spotlight on the judicial system.

  3. This man is my inspiration for studying the law. His influence watching him on the bench and dealing with people, both offenders and victims, changed the course of my life. Firm in what he did but gentle in how he did it!

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