WHY I WORE A HEMP SUIT ON THE BENCH
Former Dubbo magistrate David Heilpern was well known during his time in the city and he’s now retired from the bench. During his time in Dubbo he presided over some cases which made national headlines. He spoke to JOHN RYAN about the highs and lows of such a public office.
•••
David, please tell us about yourself.
I was born in Sydney, and went to primary school at Currumbeena, the first hippy free school in NSW, maybe Australia. I went to high school at Bathurst High School and played in the Astley Cup and debated in the Mulvey Cup which brought me to Dubbo quite a bit.
Did you have any career ambitions as a school student?
I wanted to be a vet. But my marks weren’t good enough. Law was second choice. My dad and uncle were lawyers, so it was a natural choice.
What did you do when you left school?
I did university, but externally. I lived and worked on the land to put myself through. Wool classing, farm managing, horse work, fencing, firewood, truck driving. I hated the city and couldn’t bear to be hemmed in.
What sort of qualifications did you acquire over the years?
Wool classing was my first. I noticed on the shed floor there was one guy just flicking the wool all day and occasionally throwing the fleece. I was a roustabout, so that looked much better to me. And it was. Then a law degree, then professional qualifications, then admission to the High Court, and Supreme Courts around the country. Then a master’s in law. I’m proudest of my semi-trailer drivers’ licence, and the wool classing certificate though.
Was being a magistrate ever on the cards?
Never. I was outspoken about drug law reform and had started lawyers for forests. I thought I was far too radical for appointment. But I met Jeff Shaw, the Attorney General. We fought like cat and dog over Greens preferences. I think he wanted to sideline me in the nicest possible way.
How did that appointment come about and tell us about the flak it generated?
The Daily Telegraph had a fit. So did some conservative magistrates. So did the shock-jocks. I ended up suing one of them for saying that a drug dealer had been appointed to the bench. I won and made him donate a packet to an environmental group. That was fun. But Jeff Shaw stayed loyal, and in an act that Sir Humphrey would describe as ‘brave’ the appointment was approved.
How green did you feel on your first day on the bench?
Nervous. I’d done a lot of court work, so I was used to standing up as soon as the judicial officer in front of me did. Problem was, as a magistrate, when a lawyer would stand up in front of me, I’d automatically stand up, then everyone would stand up, and it became a bit of a farce. I got used to that though. In those days there was bugger-all training, so I was very much feeling my way. I remember the first person I imprisoned on day two. Devastating.
Did you feel like you were centre stage, right in the glare of a few spotlights?
Yes, very much so. I had a love/hate relationship with the spotlight. Still do. I like it, then I don’t and get anxious. But as a country magistrate, your name is in the paper every day, and you are very exposed. Especially when you stir the pot a bit.
You struggled with the concept of local/regional media – tell us about that.
The local media in my first appointment was the Daily Liberal, and to say they had a law and order agenda was an understatement. No sentence was tough enough, no acquittal was just, no crime wave was ever reducing. It was war.
Talk us through your first impressions of Dubbo where the same people, with a large number of Aboriginal people, would be on the court lists, week after week.
Of course, I had read about the west and over representation. I had worked for the Aboriginal Legal Service on the North Coast. But nothing prepared me for the reality. Some courts there was just Aboriginal people. No-one else in the list at all. In some courts in the three years I was sitting there was not a single white kid in court. Unbelievable institutionalised racism. Dubbo lists were well over half Aboriginal. Tragic.
What was the F-case about and why did you react so strongly?
An Aboriginal man had been approached about a bike he was riding. He was asked to give it over to the police. He replied “f*#@ off you’re not having it”. He had borrowed it from a mate. He was arrested for offensive language and injured in the ensuing fracas. Typical bull#*#* arrest in my opinion. It was then about a decade after the Royal Commission. I found that the word was not offensive. A big call but seemed timely.
What was the fallout from your ruling?
Massive hysteria from the shock jocks and tabloid media. And Ita Buttrose. No appeal by the police. Just a lot of criticism from the police association. The conservative politicians had a field day. 60 Minutes stalked my house and family for their story.
But, the important fallout was that there was a massive, continued and sustained reduction in these charges. And that has remained the case ever since. I’m proud of that.
Do you regard swearing at police akin to other volume crime that should be dealt with other than by the courts?
Swearing at police should not be the cause of arrest, ever. It is words. The maximum penalty does not even include imprisonment. It should not even be a crime.
Where do you see the division between acting from the bench for the protection of the broader community and dealing out social justice reforms for individuals who have faced entrenched barriers and potential inherited behaviours their entire life?
It is a balance, where protection of the community from violence is paramount. But the question is long term protection. You send someone to prison; the community is only protected for the time they are away. You successfully rehabilitate them or sentence them to a regime where that takes place, you protect the community forever. Prison does not rehabilitate. So, there is a balance.
Tell us about your book dealing with sexual assaults against young men in prison – what prompted you to write that?
I represented a young man who killed himself in prison after being raped. It was an open secret that it was commonplace. I interviewed 300 young male prisoners and found that the rate was about one in three. Even more were assaulted. Imprisonment alone should be the punishment, not rape. I was disgusted.
The book caused quite a stir, and led to some changes in policy, including the introduction of condoms into prisons. It sold really well in the United States and remains the only book on the topic in the world. I still see it referred to academically, and in court on a regular basis.
You were also an advocate for hemp?
I wore a hemp suit into court for quite a while. It was my secret rebellion. Hemp has so much potential. If we could get over the fear of people getting stoned. Big supporter.
Drugs like naturally grown cannabis – should they be legalised or decriminalised?
Legalised. Just like in much of the United States. In 10 years, it will be legal everywhere, and we will wonder what all the fuss is about. The key to understanding this issue is Portugal. Since legalisation there, the evidence is overwhelming that there is less use by young people. Shout it from the rooftops. If you want to decrease cannabis abuse in our young, make it legal.
Given that Australia seems to follow USA trends, often slavishly, do you see dangers with people being locked up for minor crime?
I wish we would follow the US at the moment. They are lessening all their prison populations. We are out-using the US. Absurd. Since 2016, they have been reducing their prison population. While we continue on with the insane belief that imprisonment reduces crime.
The dangers of a privatised/ corporatised prison system?
I am not necessarily opposed to private prisons. I just think we need many less prison cells. The alternatives actually work.
Threats to you and your family – run us through any danger you felt yourselves to be in at any time.
The threats were ongoing, especially during my time at Dubbo. I had KKK painted on my house, my children were threatened by anonymous letter, we had to live in a motel while a bomber (not a threat an actual bomb) was caught, and we had 24-hour police protection for extended periods. Right now, there are three people in custody for threatening to kill me in various imaginative ways. I think I was often in danger. It takes a toll.
Rewards versus regrets? And would you do it all again?
There were many rewards. The job was interesting and stimulating. The legal profession was skilled and committed. The defendants were often inspiring in their efforts to change. Sometimes I felt I was able to make a difference. I would not do it again. I think I went into it believing I could be part of a massive change for the better. I was mistaken – I tinkered at the edges. I fear that I might have been more effective outside the tent.
Apart from that, how did you enjoy Dubbo?
Really liked Dubbo. The people were friendly and welcoming. Our kids went to local public high schools and enjoyed that experience. The sunsets were magical. But, there was an underlying racism against Aboriginal people that tainted the experience.
` 60 Minutes stalked my house and family for their story. But, the important fallout was that there was a massive, continued and sustained reduction in these charges. And that has remained the case ever since. I’m proud of that. "