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It’s time Mr Heydon was taken to court

  • 09 September 2015

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