It’s time Mr Heydon was taken to court

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Yesterday, Senator Penny Wong unsuccessfully moved a motion in the Senate requesting the Governor-General to revoke the Letters Patent for the Royal Commission into Trade Union Governance and Corruption. She wants Peter Cosgrove to sack Dyson Heydon even though Heydon continues to enjoy the support of the government and of the House of Representatives.

On 31 August, Heydon produced a 67-page judgment trying to refute the claim of the unions that he could be apprehended by the reasonable onlooker to have lost the appearance of neutrality. Heydon having spent ten years on the High Court obviously wanted to write a judgment which would firewall him from appeal.

Wong provided the Senate with no countervailing legal opinion by an expert refuting Heydon's judgment. So if the motion had been carried, Cosgrove would have had no transparent legal authority or published legal opinion on which to rely even if he were minded to act without advice from the government, contrary to the wishes of the House of Representatives, and contrary to Heydon's unappealed decision. What an undignified mess that would have been for all parties.

Admittedly Wong had only just celebrated her seventh birthday while living in Malaysia when John Kerr sacked Gough Whitlam almost 40 years ago. She could not be expected to have strong direct memories of that event. But by the time she was 21, she was living in Adelaide and was a delegate to the ALP State Convention. She knows how unprincipled such a request to the Governor General would be.

It's a disgrace. The only upside of Wong's performance yesterday is that she did not suggest the Governor General seek private advice from any friends he might have on the High Court. It is imperative that the unions now appeal the decision of Heydon to the courts. If they don't, they should simply abide the umpire's decision.

There is plenty in the umpire's decision which is questionable. But only a court will determine the matter to the public's satisfaction. And that probably means going all the way to the High Court, with all judges hearing arguments for and against under the public gaze.

The law is fairly straightforward. Heydon himself stated the legal principle succinctly in a joint judgment with Justices Kiefel and Bell on the High Court in 2011:

It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned.

Heydon has performed quite a few mental gymnastics in his 67-page decision rejecting the ACTU's claim of apprehended bias. There has been no suggestion from the unions to Heydon that he is actually biased. There is no reason whatever to disbelieve Heydon's statement: 'my understanding at all times has been that the dinner was not to be a fundraiser'.

But that is not the end of the matter. On 10 April 2014, a month after he was commissioned to conduct the Royal Commission, Heydon received a written invitation to deliver the Garfield Barwick Address. The invitation stated in part:

I write to give you some detail.

I am chair of one of the Lawyer Branches of the Liberal Party NSW Division (one has a focus on policy, the other on professional engagement, I am chair of the latter and ... an in-house solicitor ... formerly at Colin Biggers & Paisley, is chair of the other, we work jointly).

Although we are formally a branch of the Party, our aim is to be a liberal-minded 'bridge' to the profession rather than overtly party-political (although we trust we show the Party in a favourable light!). We do have some member-only branch meetings but most events are open to those who wish to attend and we have a large non-member database from attendees at previous events whom we invite to open events. There is a broad range of people, mainly lawyers from all parts and sizes of the profession. We organise forums on matters of professional and legal policy interest ... These to date have attracted high-quality presenters and an able and engaged audience prepared to comment and participate.

Our flagship event is the annual Sir Garfield Barwick Address, which in 2014 is in its fifth year ... The theme is the lecturer's choice with a focus on a matter of current and/or historical interest in areas of professional/political involvement or interest for Barwick (so it is a broad canvas!).

Heydon read the invitation and he accepted it the next day in writing. A month later, he started public hearings. In September 2014, Julia Gillard, one time Labor Prime Minister was called to give evidence. In July 2015, Bill Shorten, the Leader of the Labor Party, was called to give evidence.

At no stage during these hearings did Heydon think it appropriate to revisit the invitation to deliver the Barwick address. In hindsight, he thinks that perfectly appropriate. He draws succour by looking particularly at the past speaking commitments of Michael Kirby and Murray Gleeson, each of whom also served on the High Court.

Gleeson had given last year's Barwick Address. Heydon thought that 'would appear fatal to what has been described as the "Liberal Party event" submission and indeed the applications in their totality.' Heydon boldly asserts:

On the legal argument presented by the applicants, given the highly political nature of the matters which can come before the courts, no sitting judge could give a legal lecture to an organisation which has a political affiliation. Yet many distinguished judges have done so in the past without qualms on their part and without being subject to any reasonable criticism. This must immediately place a serious question mark over the applicants' legal argument.

With all respect to  Heydon, that is not the relevant issue. Rather he should have considered the case of Murray Gleeson or Michael Kirby having accepted an invitation to deliver an address having some connection (no matter how tenuous) with the Liberal Party, and just one month after Gleeson or Kirby was commencing a case involving unions with close connections with the Labor Party.

Would Gleeson or Kirby have accepted the invitation? Would Gleeson have accepted the invitation to deliver the Barwick Address if he was hearing a case involving unions and the Labor Party? Even if Gleeson or Kirby had initially accepted the invitation, would either of them have sat mute when a retired Labor Prime Minister was called to give evidence? Would either of them have failed to disclose the invitation when the Leader of the Labor Party was called to give evidence?

If completely having overlooked the matter and then having had the matter brought to their attention, I suspect Gleeson or Kirby would have simply said from the bench, 'Sorry that was an oversight on my part. Thank you for drawing the matter to my attention. I think it essential in the interests of justice that I withdraw from that speaking engagement immediately. Let the case proceed. I apologise unreservedly for any inconvenience or embarrassment to the parties.'

The real problem for  Heydon is that even now he cannot admit that he got it wrong, if even just by a totally innocent oversight. He still thinks he would have been justified in giving the Barwick address, noting only: 'Sometimes a decision-maker chooses not to do something, not because to do it will give rise to a reasonable apprehension of bias, but because the decision-maker for sensible reasons of risk management and self-preservation wishes to avoid the attacks of the suspicious and the malicious. That is the construction a fair-minded observer would put on the matter.'

There are plenty of fair-minded observers who think that this decision maker should have withdrawn stating that an intention to deliver the address now knowing all the facts would 'give rise to a reasonable apprehension of bias'.

Yesterday, the Attorney-General George Brandis maintained his bravado asserting that the 'attack on a very illustrious Australian jurist we have just heard from the Leader of the Opposition in the Senate is utterly contemptible'. But Senator Brandis would do well to recall his own remarks at the inaugural Barwick Address which was described at the time as an Address to the Legal Practitioners' Professional Branch and the Justice and Attorney General Policy Branch of the New South Wales Division of the Liberal Party. Brandis concluded the lecture with these stirring sentiments to his party faithful:

Those of you who are gathered here tonight — and I am sure there is an equivalent body on the Labor side as well — are both unusual and, in the manner of all unusual people, exceptional. You are unusual because you have remembered what, sadly, too many of our profession has forgotten — a belief in the noble possibilities of public life, the ethical professional value of service to the community, and the importance — for lawyers, foremost among all of the professions — to be active participants in our law-making processes. The relationship between our profession and the profession of parliamentary service is one of the great traditions of our democracy, which has enhanced our parliaments and ennobled our profession. Its decline has impoverished them both.

The people who are gathered here tonight, for this inaugural Garfield Barwick Address to the Legal Practitioners Branch of the New South Wales Division of the Liberal Party, share my belief that it ought to be restored — a belief of which Sir Garfield Barwick, in his own life and by the many distinctions which marked his great career, was an exemplar.

Though the parliaments of our nation are full of people with LLBs, serious lawyers are a rarity. We have all heard the remark — 'there are too many lawyers in politics'. The story may be apochryphal, but it is said that when that comment was once made to Sir Robert Menzies, he rounded on his interlocutor and replied, magisterially, 'My boy, there are always too many lawyers in politics, and there are never enough good ones.'

The good lawyers in Parliament at the moment (whichever side of the aisle they are on) ought concede that the intended and presumed audience (at least at the inaugural Barwick Lecture) did not include lawyers 'on the Labor side', and probably included only those on the Liberal side.

Has the Barwick address sufficiently morphed from the tone of Brandis' inaugural lecture (including his description of the audience as a group of lawyers with affiliation to the Liberal Party, and not to the Labor Party) into a prestigious legal address without any discernible party political content, audience or character other than being auspiced by one political party but for the benefit of all lawyers and for the common good? Perhaps.

But this question and all others I have raised in this article can be answered authoritatively only by a court. It is in the public interest that the unions appeal the Heydon decision, and that all parties abide the court decision.

The real problem for  Heydon is that he has been unable to admit even a shadow of doubt. His judicial righteousness leaves onlookers of good faith who are not lawyers wondering about his capacity for isolating his predispositions from his prejudgments of Labor witnesses and parties at the Commission. He still thinks he could have spoken at a Liberal Party event without necessarily undermining the integrity of his commission. It seems never to occur to him that of course he would never be invited to address a Labor Party event of any description and thus it is unthinkable that he be agreeable to address a Liberal Party event of any description while conducting this commission.

Penny Wong was right on one thing yesterday: 'it is untenable for a royal commissioner who is conducting a politically charged inquiry to be politically compromised'. Both  Heydon and the public deserve an independent judicial determination of this matter. But let's leave the Governor-General well out of it.


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University.

Topic tags: Frank Brennan, Penny Wong, Peter Cosgrove, Dyson Heydon, Royal Commission, Trade Unions


 

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Existing comments

Thank you, Eureka Street, for publishing Frank Brennan's take on the Heydon conundrum. For anyone who has followed Australian politics over the last 115 years the symbiotic relationship between the Trade Union Movement and the Australia Labour Party is a given. When Justice Heydon accepted the commission to conduct an inquiry into trade union governance he surely recognised that it was a politically charged subject; that every skerrick of dirt that emerged would be used by the Abbott government to besmirch the Opposition and its leader, Bill Shorten. If he didn't recognise this he must have been living in a parallel universe and so out of touch with modern Australia that he was incapable of assessing in its contemporary Australian context all the information that would come before him. If he was aware of the socio-political minefield he was entering surely he would have seen how scrupulously he would need to be in his conduct, his social contacts and his utterances. I make no adverse assessment of Justice Heydon's character. But as an observer of the Judge's readiness to conduct a politically motivated Royal Commission and his readiness to speak at a Liberal Party function I perceive some bias.
Uncle Pat | 10 September 2015


Where is the concern for the worker in all of this? Heydon has been uncovering systemic corruption between the ALP and the union hierarchy. Too many in the union movement do not represent the interests of the workers. They are only concerned to advance their own careers in politics. How else could anyone explain the disgraceful conduct of Shorten when he cut a deal with the employer that saw money paid to the union whilst his members got millions less in entitlements? Fr Brennan wrote about Heydon's "mental gymnastics". I would bet that Shorten's mental gymnastics to extricate himself from the perception of a conflict of interest would rival anything Heydon wrote.
Marg | 10 September 2015


Where does Fr Brennan’s reasoning end? I seem to recall no objections to Mordy Bromberg, an ALP stalwart and human rights activist of a definite ilk, presiding in the Eatock v. Bolt case. Though he once worked for the ALP, Bolt shifted allegiances many years before the case came to court, and a fair minded observer would conclude that his sympathies, including his views on human rights issues, lie on the conservative side of politics and in opposition to those of Justice Bromberg. Further back, I remember no serious attempts on any side to have Frank Costigan QC recuse himself from the Painters and Dockers Royal Commission. Fr Brennan claims that Heydon’s admittedly “tenuous” link with the Liberal Party is enough to raise questions of his objectivity for the fair minded observer. At the time of his appointment, Frank Costigan had been a very active member of the ALP for many years and as Fr Brennan observes, the ALP has long had very close links with the Union movement. So how could a fair minded observer not have perceived that Costigan might well have been biased in favour of the Painters and Dockers in his conduct of the Inquiry? Perhaps the fair minded observer was a tad less precious back in the day.
HH | 11 September 2015


My reasoning ends at saying that the matter needs to be resolved by the courts, and not by the Governor-General, and not by Mr Heydon. There are some citizens like 'HH' who are perfectly content with Mr Heydon's findings. Others of us think the matter too important to be left there. The royal commission is dealing with very contested issues, and there is a need to clean up all proven corruption. We need a commission which is legally squeaky clean. I don't recall Mr Costigan having accepted to speak at any events sponsored by the branch of any political party while he conducted his royal commission. Having known him as president of the Victorian Bar, I have no doubt that he would not have accepted any such invitations while conducting a politically charged royal commission.
Frank Brennan SJ | 11 September 2015


With respect, Fr Frank, of what relevance is it that Mr Costigan never agreed to give an analogous speech to an ALP-associated audience while he was Commissioner? Are we to suppose that the hypothetical observer would conclude from his abstention that Commissioner Costigan no longer harboured an affiliation with the ALP, notwithstanding that he had been an active Labor Party member for decades? Who would have thought that the mere giving – or not – of a lecture on an unrelated topic to an audience albeit substantially affiliated to a political party, but by no means exclusive of others – and indeed a lecture promoted by bodies historically not sympathetic to the ideas of that party (the NSW Bar Council, in the case of Justice Heydon) – could prove such a powerful agent: that its avoidance could be sufficient to put out of reckoning decades of public and active party membership on the one hand, while on the other its delivery could compel one to impute party affiliation never manifested in any other way over a long career! By the way, did Costigan resign from the ALP during the course of the commission? If not, bang goes the argument that Costigan was unaffiliated with the ALP, on that ground alone. And did Costigan refrain from paying his annual dues to the ALP during the years of the Royal Commission? The latter would arguably make him a “fundraiser” for the ALP, and therefore constitute a further sufficient condition for the fair minded observer to consider him as possibly biased – at least according to the criteria outlined in the ACTU case against Heydon. Yet it’s widely considered that Costigan, for all his enduring political loyalties, did a fine job. The “squeaky clean” bar insisted on by yourself and the ACTU to question Commissioner Heydon’s impartiality is admirably high; so high, in fact, as to exclude anyone of flesh and blood from being considered as a candidate for the job.
HH | 14 September 2015


Mr Brennan your take is once again ideological. And in true Leftist form you've overlooked the fact that your suggestion of perceived bias in the first instance was without fullness of evidence. Now you continue the attack against the report and overlook the more weighty issues which are the recommendations against Union officials that have long misused members money. Some with previous history, some who have already been charged. Instead of helping put trade unionism on a stronger path forward with better checks & balances you seek to dismiss the substance of the report.
Sally Keller | 01 January 2016


The law must not only be impartial it must be seen to be impartial, Justice Haydon would know this very well but has chosen to totally and utterly ignore the principles that underscore our justice system. From his first acceptance of the role he knew he could not possibly be seen by the general public as an impartial observer, thus what should have been an opportunity to show if there is real corruption in the union movement has become a $60 million dollar farce.
doug | 01 January 2016


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