Heydon rejects apprehended bias claim, stays on as royal commissioner

Dyson Heydon, the royal commissioner investigating trade union corruption, on Monday declined to recuse himself from the commission on the ground of apprehended bias.

Over the past two weeks, attention has focused on aspects of Heydon’s conduct that point to the possible perception of a pro-Liberal Party or anti-Labor Party stance. There’s his comments on the Rudd-Gillard governments at a speech hosted by conservative think-tank the Centre for Independent Studies; there’s his membership of a selection panel that awarded a Rhodes Scholarship to the future prime minister, Tony Abbott.

And there’s his acceptance of an invitation to speak at the Sir Garfield Barwick lecture, organised by a branch of the Liberal Party, which sparked calls for Heydon to step down. But applications from trade unions failed to convince Heydon to disqualify himself.

The hearing

At a hearing on August 21, the unions’ main argument was simple. Robert Newlinds, SC, representing the Australian Council of Trade Unions and other unions, argued that the mere fact Heydon had accepted an invitation to speak at a Liberal Party function was enough to create an appearance of bias.

It didn’t matter whether the function was a fundraiser or simply a networking event. It didn’t matter what Heydon knew, thought or remembered about the details of the event. It didn’t matter that he ultimately withdrew from the engagement. The fact remained: the head of an intensely party-political royal commission had been prepared to associate himself publicly with the Liberal Party.

Just in case Heydon didn’t accept that argument, the unions developed a more detailed but fundamentally similar submission. This involved combing through the chains of emails between Heydon, his staff and the organisers of the Barwick lecture and arguing that the “fair-minded lay observer” – the hypothetical person on whom the test for apprehended bias centres – would conclude that Heydon’s purpose in accepting the invitation was to raise funds for the Liberal Party.

The unions were at pains to emphasise that they were not accusing Heydon of actually being biased. Their argument was that the fair-minded lay observer might reasonably apprehend that Heydon might not bring an impartial mind to his task.

At times, the unions’ lawyers were effusive in their praise of Heydon’s famous independence of mind, his integrity and his intellect. It was this latter attribute that the unions used to strengthen their argument.

The fair-minded lay observer, the unions argued, would find it hard to believe that such an intellectual powerhouse – somebody with a “mind like a steel trap” – would overlook the connection between the lecture and the Liberal Party, or would fail to notice the fundraising element of the event.

The decision

Heydon’s written reasons for his decision are precise, detailed and often technical.

Rather than focusing on the general impression created by the situation – he criticises the unions' arguments for being “imprecise” – Heydon takes each allegation put forward by the unions and follows it to its conclusion.

Heydon did not accept that merely agreeing to give the address could create an appearance of bias. Judges and royal commissioners are allowed to have political views. They are even allowed to air those views publicly.

Heydon downplayed the political nature of the royal commission. The unions are not synonymous with the Labor Party, he pointed out. Some union members even support the other side of politics.

Nor did Heydon accept that a fair-minded observer would think the lecture was a Liberal Party fundraiser. He points out that the A$80 per head charge is pretty reasonable for a three-course meal in Sydney.

Heydon repeated that he did not read the attachments setting out the detail of the event. In fact, he does not have a computer and it is “notorious among the legal profession” that he is “incapable of sending or receiving emails”.

What happens next?

The unions may take their case to court, seeking to have Heydon removed. The unions can choose to go either to the Federal Court or the High Court. Once again, the unions will be arguing that there is a reasonable apprehension of bias in Heydon continuing to hear the case.

The test for apprehended bias is one on which reasonable minds can differ and there are good arguments on both sides of this case. Therefore, the unions have some cause for optimism that they will succeed in the courts.

What if Heydon survives all legal challenges?

The government has always had the option of removing Heydon on its own initiative. Given its public support of Heydon this seems unlikely.

If, then, Heydon proceeds with the royal commission and hands down a final report, will the findings of the report be tainted? Legally, no; politically, maybe.

Let’s remember what royal commissions do. A royal commission investigates a problem assigned to it and reports to government with some findings and recommendations. A royal commission doesn’t actually implement any of these recommendations – that is up to the government.

The government might decide to leave the royal commission’s report on a shelf gathering dust. Or it might want to act on the commission’s findings. If it wants to do the latter, we can expect opponents of these actions to bolster their political opposition by arguing the findings were tainted by bias.

The legal standard for apprehended bias is not necessarily the same as a moral, ethical or political standard – all of which may, naturally, vary from person to person. The outcome of any legal challenge does not diminish the legitimacy of any person’s strongly held personal views on this issue.

Anna Olijnyk receives funding from ARC for a project not related to this issue. She is a member of the NTEU.