Dyson Heydon and the PM's quest for political purity

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Dyson Heydon in session at unions royal commissionThe royal commission into trade union corruption, when established by the Abbott Government in 2014, always had a partisan smell to it. Even if one gives credit that such a royal inquiry takes place, an image of impartiality in tribunal processes is fundamental. From the start, that face has been hard to sustain.

This then sets the scene for Dyson Heydon's role as head of that royal commission. Fine that he be a former high court justice. Fine that he bring to the investigative bench his experience and skills as both an advocate and a jurist. But then came his invitation to be a keynote speaker at the Sir Garfield Barwick address.

The Australian Council of Trade Unions (ACTU) has been convinced that grounds exist to make Heydon disqualify himself. In nailing his colours to the mast of the Liberal Party fundraising circuit, he has at the very least given some inkling of being sympathetic.

Heydon himself implausibly claims that he did not believe his address would be given at a fundraiser, nor did he read attachments to an email in June which included an invitation with the Liberal Party letterhead. Prime Minister Tony Abbott dashed Heydon's shield of ignorance in the House by claiming that, 'It has never been disputed that this was a Liberal party event.'

Liberal frontbencher Josh Frydenberg has decided to attack suggestions of perceived impartiality. He misunderstands that, in natural justice, what matters is not necessarily what is done, but what is seen to be done, a hearing that is afforded in circumstances where bias is not seen to make itself manifest. 'The public can see through this partisan political attack by the unions and the Labor party on one of Australia's most distinguished an eminent jurists'.

It is not that Heydon would necessarily behave in a manner inappropriate to the investigation. Few would challenge his legal credentials. The attack on Frydenberg's part demonstrates, as ever, a confusion about the role of how fairness applies to administrative proceedings. An administrator can still be brilliant and heavily credentialed, while appearing in a capacity compromised by the appearance of bias.

The test employed here is that of how the 'fair-minded lay observer' would perceive Heydon's role on being informed of the invitation, a fabulous legal contrivance that has no flesh and blood reality. What matters is layman's opinion — informed about the circumstances yes — but layman's nonetheless.

Substance, and appearance, are simply not the same thing in this field of inquiry. There is little doubt that, had the Royal commissioner appointment been the improbable yet equally eminent Michael Kirby, the feeling that such a progressive figure may not have been a suitable candidate to investigate the union movement may have also manifested itself from Liberal critics. But who is to say that his findings might well be harsher?

The truth may well be that both Heydon and Kirby might come to the same conclusions from different sides of the political fence. The question is whether that side of the fence casts a shadow, however imperceptible, of bias that has the potential of marring the justice process. It was the situation that Lord Hoffmann found himself in after his links with Amnesty International perceptibly compromised his views on extraditing Chile's former military ruler Augusto Pinochet. Even the best jurists can fall foul of the bias rule.

Appearances, in other words, doesn't prepare you for the detail, the scope of conduct that a decision maker ends up engaging in. But in terms of process, the assumption that one's judgment is not clouded by a particular political angle, or sympathy to one side of the aisle, are fundamental to the outcome of an investigation.

Tony Morris QC of the Queensland Commission of Inquiry, to take one example from 2005, was found by a court to be biased in apparently favouring those giving evidence against Jayant Patel of Bundaberg hospital while demonstrating hostility against hospital administrators. It is for that reason that Heydon's conduct makes his continuation in his current role, not only problematic, but discrediting to both his standing and that of the Abbott government.

The spectacle is a strange one indeed. Heydon is in a situation where he is to make a ruling about an application that directly concerns his own fitness to be in the position. This is a tall order, and immediately brings to mind those curious little perversions that occasionally attend royal commission practice.

But here, the royal commission has truly internalised its functions, being, as it was termed by Michael Foot, a broody hen sitting on a china egg. Continuing in its current form, however, serves to undermine, rather than further the cause of purity the Prime Minister, and those sympathetic to it, wish to achieve.


Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Topic tags: Binoy Kampmark, Dyson Heydon, Michael Kirby, Tony Abbott, royal commission, unions, law, Pinochet

 

 

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Existing comments

It's no secret that Justice Dyson Heydon was appointed to the High Court by the Howard government. Or that Heydon has been critical of fellow Justice Michael Kirby's personal style. Accepting an invitation to a Liberal Party fundraiser is not a good look for someone heading a Royal Commission into trade unionism. Maybe these words by Heydon about Kirby bear some scrutiny: "Ambition, vigour, energy and pride can each be virtues. But together they can be an explosive compound...Judgments tend to cite all the efforts of their author, of their author's colleagues, of other state courts and English courts and American courts and Canadian courts and anything else that comes to hand."
Pam | 24 August 2015


The Liberal party will save face at any cost. Great article.
marlene | 25 August 2015


Commissioner Dyson Heydon accepts an invitation to a Liberal Party function, subsequently declines to attend, but is still accused by some people of bias. Professor Gillian Triggs accepts an invitation to an ALP function to give the 2014 Fraser Lecture, attends and speaks at the function saying it was “an honour to be here in your electorate”, yet the same people say she is unbiased. Interestingly, Heydon’s father worked for the ALP’s Dr Evatt, and, as a black-letter lawyer who dislikes activist judges usurping the power of the people, was the only judge to back the Gillard government’s Malaysia Solution saying that the “government should be left to run its foreign policy as it saw fit.” It seems that the revelations coming out of the Royal Commission about union extortion, intimidation and doing dodgy deals with bosses to rip off workers, is damaging the union movement and its political offspring, which is the real reason people are attacking Heydon and attempting to remove him.
Ross Howard | 25 August 2015


I am not a liberal or abbott supporter, but Heydon strikes me as professional and a very straight arrow indeed. The screams are coming from those being found out. Shooting the messenger who is uncovering the unsavoury and even corrupt links between ALP and the Unions would not be in the national interest.
Eugene | 25 August 2015


Irrespective whether -- like the earlier one into the "Punk Batts" matter --,the Heydon Royal Commission into the trade unions had a fundamental political motive (and, plainly, many people believe that they did) the commissioner's behaviour has been troubling. There were his critical (but, at best, naive) comment about Julia Gillard's evidence (that it was "too practised", or something to that effect) and his later deeply troubling intervention which cast doubt on Bill Shorten's evidence: both of these indicate that, with judicial experience which was, in the main (if not entirely) on the Court of Appeal and the High Court, he is unfamiliar with witnesses and their actual behaviour when giving evidence. What he an ideal choice as Commissioner, therefore? Furthermore, the question of whether his proposed Garfield Barwick address was at a "fundraising" function, it utterly irrelevant. The relevant truth was that if was an event which was organised by an arm of the Liberal Party and sponsored by that party. Both of those aspects made it highly inappropriate that Heydon should become involved and it defied credibility that he was unaware of that compromising fact from the outset.
John CARMODY | 25 August 2015


Whatever Ross Howard thinks of Professor Triggs and her actions has absolutely no bearing on the probity of sagacity of Dyson Heydon's actions. They should be judged on their own terms: ethics is not a comparative exercise as Mr Howard seems to believe. Likewise, whether Sir Peter Heydon "worked for" Dr Evatt is plainly irrelevant. Furthermore, it is not, in any sense, a matter of "shooting the messenger" as "Eugene" wants ut to think. It is, really, whether the former judge has been living up to his own standards.
Dr John CARMODY | 25 August 2015


Firstly the royal commission is for political gain and a waste of $61 million! As for whether Justice Dyson Heydon"s credibility has been tarnished; I believe it has. I'm personally sick of the waste when the poor, elderly, abused, sick and many youth are being neglected.
Cate | 25 August 2015


Would Mr Heydon have accepted an invitation to speak at an ALP function, especially a fundraiser? I would think not as it would lead some people to think it was inconsistent with his role heading the Royal Commission. I have no reason to doubt his integrity and I accept his excuses about overlooking the invitation, but such administrative carelessness by such an experienced judge does undermine confidence in him. Perception is the key point and poor perceptions undermine his effectiveness. Regardless of the timing of events and other justifications, he did show poor judgment in accepting the invitation in the first place. When the Royal Commissioner rather than the Royal Commission becomes the story, the Commissioner has to think hard about his position.
Brett | 25 August 2015


I was going to respond to Ross Howard's opinion, but Dr John Carmody has already done so tellingly.
SMK | 25 August 2015


Dr John Carmody finds Dyson Heydon’s behaviour “troubling” because the Commissioner was critical of, and unconvinced by, the evidence of Julia Gillard and Bill Shorten. He seems unable to accept this because he says that it indicates that Heydon’s lengthy time as a judge meant, “he is unfamiliar with witnesses and their actual behaviour when giving evidence.” What arrant nonsense! Heydon spent 27 years as a barrister, including 13 as a Queens Counsel, before being appointed to the Bench in 2000. Sydney solicitor, John Atanaskovic, who briefed him in the Super League case said, “His real strength is his intellect. He is very incisive in seeing the important ramifications and inconsistencies of an argument.” Justice Roddy Meagher, QC, regarded Heydon as, “the best judge in Australia.” Dr Carmody is sadly mistaken if he thinks that my reference to Gillian Triggs was an exercise in comparative ethics. On the contrary. It is directed at the credibility of those critics who pontificate about Heydon but who found nothing wrong with the behaviour of Triggs—similar to the confected outrage at the recent killing of a lion while being indifferent to Planned Parenthood’s ghastly dismembering of aborted babies to sell their parts.
Ross Howard | 25 August 2015


I really don't think that Mr Howard's approach has helped his case at all. Sometimes straws should be left alone, rather than grabbed opportunistically and indiscriminately.
John CARMODY | 26 August 2015


The irony of Heydon speaking at the Sir Garfield Barwick address, noting Barwick's role in the Whitlam dismissal, serves to underline any notions of perceived bias.
Shane | 26 August 2015


Dyson Heydon is only holding the light, he didn’t create what is being illuminated. Whether or not he is biased, is nothing compared with the treatment of low paid workers and also employers. This article prefers to discuss perceived bias about a function, not a fund raiser, which was not attended. The need to close down the Royal Commission is understandable, especially considering the revelations so far. Laypeople wonder what more is being hidden. The world needs honest, accountable unions and we all need to stand in a bright light and be aware of our motivations, greed and selfishness.
Jane | 26 August 2015


I think I would prefer to wait for the conviction of union officials identified by the Royal Commission. It may happen and is probably likely in some cases, but charges do not always mean guilt. The unionists who have been convicted were not convicted because of the Royal Commission but because of police forces doing what they do well - investigating criminal acts. I have an open mind on the Royal Commission. Part of the openness thinks, like Jane, that it will shed some light on union corruption. The other part sees it as a politically motivated act intended to emasculate the whole union movement into oblivion. It is quite possible that both parts are correct.
Brett | 26 August 2015


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