Should Heydon stand down? A #turc legal view by @bowlerbarrister

Ross Bowler

Ross Bowler

Ross Bowler's law practice covers Criminal Law, Family Law and Litigation. "The law poses problems. I help provide solutions. The answer starts with the asking."
Ross Bowler
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Ross Bowler

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There is often tension in the law as to whether a conservative or more robust approach should be taken in respect of an issue. Opinions may differ according to how an issue is viewed. It might be said that a controversy arising out of the Royal Commission into Trade Union Governance and Corruption has produced some dynamic tension in that regard.

Thursday 13 March 2014

On Thursday 13 March 2014 The Royal Commission into Trade Union Governance and Corruption was established with former High Court Judge, the Hon Dyson Heydon AC QC, as the Commissioner.

Wednesday 9 April 2014

On Wednesday 9 April 2014 opening remarks at the Royal Commission into Trade Union Governance and Corruption were made by Commissioner Heydon.

Thursday 28 August 2014

On Thursday 28 August 2014 Commissioner Heydon ruled on what was a bias and conflict of interest claim by the witness Kathy Jackson.

Thursday 30 October 2014

On Thursday 30 October 2014 the Letters Patent establishing the Commission of Inquiry extended the date for the report of the results of the inquiry and relevant recommendations from 31 December 2014 to 31 December 2015.

Tuesday 14 April 2015

It would seem from at least Tuesday 14 April 2015 the NSW Bar Association ran an advertisement of Commissioner Heydon speaking at the dinner which included the Sir Garfield Barwick Address.

Drawing on my own modest experience speaking at seminars, the invitation to speak is extended and acceptance confirmed in advance of the specific advertising of the event.

Thursday 13 August 2015

On Thursday 13 August 2015 it was revealed that the 6th annual Sir Garfield Barwick Address was to be delivered by the Hon Dyson Heydon AC QC at a dinner to be held at the Castlereagh Hotel, 169 Castlereagh Street, Sydney on Wednesday 26 August 2015 from 6:00 pm.

The invitation widely circulated on Thursday 13 August 2015 was resplendent with Liberal Party New South Wales branding. Relevantly it read:

  • “The Lawyers Branch and the Legal Policy Branch invite you to attend the 6th annual Sir Garfield Barwick Address”
  • “This year the address will be delivered by The Hon Dyson Heydon AC QC”
  • “Cheques should be made payable to: Liberal Party of Australia (NSW Division)”
  • “A receipt will be issued. All proceeds from this event will be applied to State election campaigning.”

Controversy

With the revelation of Commissioner Heydon accepting the speaking engagement at a Liberal Party fundraiser, whilst still in the role of conducting a Commission of Inquiry into Trade Union Governance and Corruption, the question arose as to whether Commissioner Heydon ought be removed from the Inquiry due to apprehended bias. Since the instigation of the Inquiry criticism had been levelled at the federal government that it was a politically motivated vehicle designed to attack its opponents, the Australian Labor Party.

The Law

Conveniently two cases dealing with the issue of apprehended bias are instructive here.

In Re Carruthers v Connolly, Ryan & A-G [1997] QSC 132 Thomas J said:

“The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters upon which they are required to investigate and report.”

“In determining the ultimate question of ostensible bias on the part of a Commissioner, the Court must attempt to form some view whether the conduct in the circumstances would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Commissioner will not discharge his task impartially.”

“But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless.”

Justice Thomas ultimately ruled to stop the Connolly-Ryan Inquiry.

The “If the Commissioner were thought to harbour political prejudice” Test of Thomas J seems problematic for Commissioner Heydon.

When sitting on the High Court of Australia Justice Heydon was part of a majority judgment (with Kiefel and Bell JJ) in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 which will give his present predicament little comfort, in my submission. In that case their Honours wrote at paragraph [139]:

“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 [179]. 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.”

The appearance of departure from neutrality appears to have been triggered by Commissioner Heydon by his accepting the speaking engagement at a Liberal Party fundraiser, whilst he was still in the role of conducting the Commission of Inquiry.

Commissioner Heydon is required to make findings of credit in respect of witnesses at the Royal Commission into Trade Union Governance and Corruption. He can no longer be seen to be impartial doing so.

With that in mind:

  • No one at the NSW Bar Association thought Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?
  • Counsel Assisting the Royal Commission into Trade Union Governance and Corruption did not think that Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?

In accepting the subject speaking engagement, Commissioner Heydon compromised the Royal Commission into Trade Union Governance and Corruption. That is the integrity of all the proceedings over which Commissioner Heydon has presided are now compromised. The threshold was breached at agreeing to speak at the fundraiser. The magnitude of the function is irrelevant. Consequences flow from the breach. There is no proper basis for the Royal Commission into Trade Union Governance and Corruption to continue now. It has become irreparably compromised.

Correspondence

Having arrived at that position, the correspondence trail from the first invitation to the correspondence released on Thursday 13 August 2015 interests me. Has any ground shifted? As the government is happy to say in respect of the metadata it seeks to collect from the citizens, “Nothing to hide, nothing to fear”. The Liberal Party should produce all of the correspondence in relation to the speaking engagement. If the relevant correspondence contained exculpatory material, one would expect it to be produced. It is curious why the correspondence has not been released. The inference is not good for Commissioner Heydon, the Commission of Inquiry or the Liberal Party.

There is also some incongruity about a Commission of Inquiry seeking to determine the truth, yet relevant correspondence which could perhaps clarify an issue in respect of that Inquiry not being produced by the Commissioner overseeing that Inquiry and an entity (the Liberal Party) which may have ultimately compromised that Commission of Inquiry.

Counsel Assisting

If Commissioner Heydon will not withdraw or stand down, a question arises as to whether Counsel Assisting has an obligation to make an application for Commissioner Heydon to stand down in respect of the bias allegation. A quick reconsideration of Barbaro v The Queen ; Zirilli v The Queen [2014] HCA 2 suggests Counsel Assisting should apply for Commissioner Heydon to withdraw. Whilst that is a criminal law case, it details the roles of the Judge and the Crown Prosecutor in proceedings. It also canvasses the role of defence counsel. It can also be seen to respect the duty to the Court all legal practitioners are required to observe.

In my submission Counsel Assisting has an obligation to preserve the integrity of the Commission of Inquiry and make an application to Commissioner Heydon for him to consider the issue of apprehended bias and perhaps conflict of interest.

In that regard there is merit in making a Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838 type preliminary discovery application for the aforementioned correspondence which has yet to be produced, to determine if an apprehended bias application is needed. Such an application may need to be made to another Court, seeing as it potentially involves Commissioner Heydon producing correspondence.

Conclusion

So it can be seen that significant tension has arisen as a result of Commissioner Heydon agreeing to give the speech to the Liberal Party fundraiser. I would resolve the dynamic tension by having Commissioner Heydon withdraw or stand down from the Commission of Inquiry. That would also be an approach which would encourage the community to have confidence in the Courts and the administration of justice.


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Comments

  1. http://Elisabeth%20Meehan says

    The position is now hopelessly muddied, no matter what side of politics you might favour, or what your underlying beliefs are about union corruption.

    If Heydon stays, his findings will always be tainted by the perception of bias against unions.

    If he goes, millions of dollars will have been wasted, and a cloud remains over the question of union corruption.

    Unions can neither be exonerated, nor found to be corrupt – unless charges result, and guilt upheld.

    I know that Royal Commissions are often presided over by retired judges. I am also loath to be “ageist” – I’m getting older myself!

    From what I have read, Dyson Heydon was once highly respected, and seen as astute and clear thinking, even by those who disagreed with him.

    He is now 72. The age of onset of cognitive impairment varies enormously from 50s to over 100. There is now a compulsory retirement age for judges at 70 years. I believe this is for sound biological reasons.

    One problem with cognitive impairment, is that insight and reasoning decline at an early stage – and the less insight we have, the less able we are to see the failings of our own intellect. (For a person not running a Royal Commission this is a very merciful thing!)

    I simply find it hard to comprehend that a person with Judge Heydon’s knowledge and experience of the law as it relates to ‘apprehended bias’ (a term I have only just heard – I have a medical, not legal, background) would not have seen the clear danger in accepting a speaking engagement initiated by the Liberal party, whether a fund raiser or not.

    Wouldn’t virtually every practicing Lawyer in NSW have know that this was a Liberal Party function? Or am I mistaken, being from WA, that the law is a ‘club’ or sorts?

    Unless Heydon releases ALL of the documentation relating to his accepting this speaking engagement (as Ross said, it is implausible to suggest that invitations were sent prior to his acceptance) his own reputation, judgement and credibility will remain tarnished, along with the RC he heads.

    I agree with Margo Kingston – this has a long way to run yet.

  2. http://Peter%20F says

    One problem is that his lack of judgment appears to be continuing. He appears not to be able to see that in admitting to having ‘overlooked’ the links to the Liberal Party he has deepened the perception of bias, whether or not it exists. He apparently stll does not see the conflict.


  3. If you take the view that the TURC was nothing more than a “witch hunt” to smear political opponents and any and all Unions can be investigated by police and charges laid if enough evidence is produced, then on that basis alone the TURC is irrelevant. However, for Dyson Heydon, a retired High Court Justice, a man of high intellect to claim that he failed to read an “attachment” or that he even thought it appropriate to accept an invitation to a Liberal Party function saying that he thought the TURC could be finished by the specified date is beyond belief.
    Whether it be the “pub” test, the “sniff” test, or the scrutiny of a reasonable, fair minded or informed person, for Dyson Heydon to think that his actions would pass those tests is beyond belief.

  4. http://Sandra says

    Most definitively. He won’t of course due to the $25 Million windfall of taxpayers dollars , excluding expenses (compliments of the Abbott Government) he and his running mate Jeremy Stoljar will fight to the bitter end to retain their big windfall.

  5. http://bullie says

    thw question to be asked is why does it take a royal commission to expose breaches of the law. where are the normal law enforcement bodies


  6. It doesn’t take a royal commission to expose breaches of the law. The ALP argued that if there are claims of corruption, hand the details to the police. But the police don’t provide potential regular embarrassment for the ALP, whether from actual corruption or guilt by association. Hence, the Royal Commission is a witch hunt. Moreover, if the Royal Commission were to end now, the police could still happily pursue anything that has been raised by the RC to date. Justice Heydon should go. His rather bizarre argument that he ‘overlooked’ the fact that it was a Liberal Party fundraiser is bizarre. Ignorance of the law is no defense for the rest of us – so an ‘esteemed lawyer’ arguing he overlooked a huge potential conflict of interest is less than convincing.

    The ALP threatened to retaliate by having a Royal Commission into the Liberal Party and their political donors. Now that might be interesting, but it’s not going to endear Australians to their politicians.