Under the pump … John Dyson Heydon
“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.”
High Court Justices Heydon, Kiefel and Bell 2011
“Oh really, Mr Heydon!”
There is a moment of silence as the practiced incredulity bounces off the wooden panels.
Then Jeremy Stoljar, senior counsel assisting at Tony Abbott’s royal commission against trade unions, fixes the witness with a trademark sneer.
Well, not really, but he might well have done if John Dyson Heydon had been a trade unionist rather than a royal commissioner and a colleague at Selborne 8 Chambers in Sydney’s most prestigious legal precinct.
And Stoljar would almost certainly have gone into his “oh really” routine, if Heydon had been in the witness box when he attempted to rationalise evidence that would lead to calls for him to step away from his commission because of bias or, at the very least, perceived bias.
It was August 13 when Sydney Morning Herald reporter, Latika Bourke, broke news that the man Abbott had appointed to conduct a damaging public investigation into his trade union opponents was being touted as the star turn at a Liberal Party fundraiser.
Heydon was listed to deliver the Sir Garfield Barwick Address, named in honour of a Liberal Party icon and former federal Attorney General, at the Castlereagh Boutique Hotel on August 26.
“All proceeds from this event will be applied to state election campaigning,” the invitation from one of the party’s legal branches stated.
The implications were obvious and royal commission staff dived for the damage control button. At 11.22am spin doctor, Adrian Kerr, hit send on an email that announced Heydon had bailed out of the Liberal Party engagement.
“As early as 9.23am this morning (and prior to any media enquiry being received) he advised the organisers that ‘if there was any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of royal commissioner’,” Kerr announced.
Bourke wrote that her news organisation had made inquiries about the commissioner’s intentions at 9.35am that day.
But, hey, cut the man some slack. What’s 12 minutes between friends even if Heydon had actually agreed to do the gig more than a year earlier, shortly after accepting his commission from the Abbott Government.
But, if August 13 had been bad for the commission’s credibility, Monday August 17 would turn into a shocker.
On that day, Heydon acceded to a formal Australian Council of Trade Unions (ACTU) application to hand over documents relating to his Barwick lecture.
At the time, counsel assisting had Abbott’s favourite target, the CFMEU, in the box but the attack was repeatedly interrupted as the ACTU sought to intervene and Heydon tried to explain his actions.
The peak body said it wanted his documentation to decide whether or not it should apply for the commissioner to disqualify himself. This provoked testy exchanges between Heydon and ACTU lawyer, Robert Newlinds.
Appearing increasingly angry, Heydon questioned the right of the ACTU to be heard before his trade union commission. “Don’t you think that it is rather irresponsible to come before a busy body of inquiry?” he snapped.
Heydon then appeared to try and bounce the ACTU, insisting it make up its mind on any stand-down application within an hour.
When the ACTU solicitor reappeared at 1.30pm and announced he needed more time because he had not received instructions from his client, senior counsel flew off the handle.
Stoljar accused the union body of “grandstanding” and said it was responsible for the hearing “degenerating into a shambles”.
But it was Heydon’s attempts to explain away his behaviour that ensured the second application would proceed and the issue would turn into a media frenzy.
He confirmed he had agreed to give the speech, last year, after an approach from a Liberal Party branch but claimed that when he had received its reminder, in March of this year, he had “overlooked” the party political connections.
He had also “overlooked”, he said, having made his acceptance conditional on the royal commission having finished its work.
However, the correspondence he released from 2014, made it crystal clear who the organisers were and exactly where any funds would be going.
A subsequent email from long-time associate and Liberal Party branch president, Greg Burton, advised Heydon his address was being staged while parliament was in recess to try to get more MPs along.
In June, more than two months before he pulled the pin, Heydon was sent an email promoting the event. A leaflet attached showed his photo and a donation form below a Liberal Party logo.
Heydon said he hadn’t read the attachment. However, the email itself had carried the subject line: ‘FW: Liberal Party of Australia (NSW Division) – Lawyers’ Branch and Legal Policy Branch”.
Heydon’s right wing credentials were scarcely a secret when he was appointed to his royal commission job.
He had been a legal adviser to an anti-republican organisation, headed by Tony Abbott, and his 2002 address to guests at a dinner hosted by hard-right publication Quadrant was viewed in legal circles as a job application to the Howard Government.
Four months later, he was sworn in as a judge of the High Court.
In the years before his retirement from that role, at age 70, Heydon became the court’s arch dissenter, swimming against the tide in nearly 50 percent of the cases he heard.
On matters of taxation, economic policy and corporate rights, Heydon took a classical Hard Right, almost neoliberal, approach. He dissented from the majority of the court, in 2009, on the government’s right to introduce stimulus measures to combat the Global Financial Crisis.
And he also dissented on whether or not the plain packaging of cigarettes was constitutional.
He said that public health policy, designed to stop youngsters smoking, effectively told tobacco company owners:
“I want to stop you using the intellectual property in very large measure, and command you as to how you are to use what is left of your property, not with a view to making profits in your business, but with a view to damaging them by making the products you sell unattractive; I will therefore take over control of your intellectual property and chattels from you.”
But the apprehended bias case is different again.
The evidence suggests Heydon has chosen to maintain an active involvement with a political movement strongly opposed to trade unionism while taxpayers are tipping a reported $1m a year into his bank account so he can inquire into trade unions on their behalves.
CFMEU construction division national secretary, Dave Noonan, said the royal commissioner and the government had been left with no real choice.
“They need to shut this charade down now,” Noonan said. “We never accepted the reasons behind this royal commission which was established to provide a justification for slashing incomes and reducing safety standards.
“The CFMEU has maintained from the outset, the commission has displayed a bias against our members and other trade unionists.
“Our witnesses have been repeatedly denied natural justice, while antagonistic witnesses have been invited to make serious allegations without having their credibility tested in any way.
“Now, the partisan nature of this commission has been laid bare. No fair-minded person could have faith in these proceedings given the links that have been exposed.”
Neither Heydon, the royal commission nor the Abbott Government needed Noonan to tell them they had a serious problem.
Besides the implications for their credibility, if they try to brass it out, “overlooked” will become the standard defence for every witness that comes before their inquiry.
It would be embarrassing for the commissioner and Stoljar, likely, will go redder than ever as he delivers his predictable response.
A judiciously edited version of this story is available at Commission Watch – separating fact from fiction
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