… the mere fact that a person agrees to deliver a speech at a forum does not rationally establish that the person is sympathetic to, or endorses the views of, the organiser of the forum’. Dyson Heydon Reasons …
In the end it is no great surprise that the former ‘High Court’s great loner,’ or ‘Great Dissenter’ Justice Dyson Heydon QC AC, has dismissed an application that he recuse himself from the Royal Commission into Trade Union Corruption. He is not unused to taking an independent or an unpopular position. Nor is he at all averse to a legal contest.
In fact, Dyson Heydon’s career is built on winning legal contests, arguments and disputations, a fact which also makes it unlikely that he would ever recuse himself on the grounds that he might appear biased or in any other way unfit to judge. Especially when he has to judge himself.
But can the great legal mind see the wood for the trees? Might he not consider his position independently of the case brought in the unions’ application? No chance.
Today Heydon continues to walk to the beat of his own legal drum: the letter of the law. Justice Heydon has made it clear that in his considered and detailed opinion, there is no legal case to answer in the ACTU and other unions’ application to cause him to continue.
In his sixty-seven pages of reasons published at 2:00pm today on the Royal Commission’s website Heydon dissects the case against him and dismisses it, authoritatively, convincingly and resoundingly. That should be the end of it.
But it’s not the end; more like the end of the beginning. What Heydon has left out of consideration, as he must, is the larger, more important issue of how the public perception; how the average person may see his Commission.
The Royal Commission is tarnished. Whatever findings he makes by its December close, will forever be tainted by his belated discovery that he ‘overlooked’ his role as a Royal Commissioner and accepted an invitation to speak at a Liberal function.
Despite arguing convincingly in his reasons today that his speaking at the function does not necessarily make him a biased Royal Commissioner or one whose judgement would necessarily be impaired by his acceptance. The bigger picture is not reassuring to the public. Nor is the image of a judge who ‘overlooks’ details, favourable to fostering public confidence.
That loss of confidence may be accelerated by Heydon awarding himself a TKO. Heydon argues, that the unions’ application fails to establish evidence from which a reasonable lay observer may deduce or infer his bias.
‘… the applicants’ submissions depend on isolating conduct which reveals a particular characteristic – affinity with, partiality for, lending of support to, persuasion, allegiance or alignment to the Liberal Party, or a political prejudice against the Australian Labor Party.’
Yet the integrity of the Royal Commission in its wider sense, has already suffered a crippling blow.
In order to consider the application from the ACTU and other unions that he recuse himself He had to put himself in the position of ‘a fair-minded lay observer.’
Yet given the circumstances surrounding his Commission are less rarefied. His impartiality has been challenged; his cooperation with requests for relevant documents has appeared less than perfect. In his words this may have been an ‘innocent’ oversight but it does not build confidence.
To complicate matters, Heydon has revealed his impatience with key witness, Bill Shorten, in a way that appears prejudicial to his full and fair hearing, rebuking the former head of the AWU lest he appear an ‘unreliable witness.’
Rebuking Shorten, was an extraordinary departure from protocol, but hardly the only indication that Heydon will do things his own way. He provides transcripts of charges against those called before the commission. These are given to reporters as those summonsed to appear get to see for the first time what it is they are charged with.
It may help the media but it does not help the perception of integrity. Moreover it provides easy ammunition for coalition politicians to use in parliamentary debate and to apply in arguments to persuade cross benchers.
He could not continue without significantly weakening the commission’s authority. At a cost of 61 million dollars so far and counting, the public deserves better value for its money. Heydon may have defended himself capably against the case of apprehended bias against him but even in doing so he has lost the bigger argument of why his commission should continue at all.