Justice Dyson Heydon AC QC has just announced his intention not to step down as Royal Commissioner of the Union Royal Commission throwing the work of the organisation set up by the Abbott Government into further turmoil. The Commission began its work on April 9th of 2014 and has since called more than 400 witnesses as it investigates alleged Union rorting and corruption. To date criminal charges have already been laid against several former union officials relating to acts of intimidation, coercion and corruption.
But, it was Heydon’s own acceptance of an invitation to a Liberal Party event that set the cat amongst the pigeons as the Unions and Labour Opposition began to bite back claiming that Justice Heydon showed bias in accepting the invitation or, at the least, showed poor judgement. The invitation came on top of already public comments going back to 2013 where Justice Heydon called the former Rudd Government “non-substantive” with many now suggesting that the Prime Minister’s “captains pick” should never have been appointed in the first place. Mr Heydon has also been on the record taking aim at the former Gillard Governments reforms of the charities sector when, during a roundtable hosted by right wing aligned free market think tank the Centre for Independent Studies in June of 2013 he said of the reforms that
"Let me just ask what is the point of the Charities Bill 2013? Why seek to enact it just before an election at a time when the government is borrowing $1 billion a week just to pay the public service?" "Is it an illustration of the fact that the tendency of the Rudd government to do non-substantive things like make speeches, and appoint committees and hold summits and so forth, survived even after Mr Rudd ceased to be prime minister?" "Or is it just really the production of some boffins in the Treasury or some other department?" he said.
For his part Justice Heydon has remained resolute suggesting that he had “overlooked” the Liberal party connections for the event he was invited to and since cancelled his appearance to speak at the Sir Garfield Barwick Address.
There is now a question hanging over the future of the Commission with some in the legal fraternity suggesting that it cannot continue. Michael Bradley, a legal affairs commentator is one such person saying that “Technically, his commission would be withdrawn by the Governor General. The Letters Patent are addressed to him personally. If he returns them, or they are withdrawn, the Royal Commission will be at an end.” “... they couldn't just take over where Heydon left off. Findings about the credit of witnesses can't be made on the basis of a transcript; the Commissioner has to have seen them give their evidence.”
To date the commission has cost the taxpayer more than $60 million
The Unions began the process of calling for the removal of the Commissioner when they filed an argument of apprehended bias with the basis being that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” This means that whether a commissioner, justice or tribunal member you must not only be impartial you must appear to be impartial which is a long held convention to ensure public confidence in the justice system and those who are charged with sitting in judgement over the public and its institutions. As Anna Olijnyk explains in her piece on August 18th:
"The legal test for apprehended bias in this case is whether a “fair-minded lay observer” might reasonably apprehend that Heydon might not bring an impartial mind to his task as royal commissioner.
The “fair-minded lay observer” is not a real person. He or she is a fictional person invented by the courts to help work out whether apprehended bias exists in any given situation."
"This fictional person is a layman, rather than a lawyer, so they need not understand legal technicalities. But the fair-minded lay observer’s opinion is not necessarily the same as mainstream public opinion. He or she is assumed to have a detailed knowledge of the situation – usually more detailed than appears from media reports – and is slow to jump to conclusions."
Apprehended bias can arise in many situations. There might be apprehended bias where, for example: a judge is openly hostile to one of the parties to a court case;
a government official holds shares in a mining company to which the official grants a mining licence; or a decision-maker’s public statements suggest they have already made up their mind before considering a case in full.
This is not the first time a commissioner has faced allegations of apprehended bias. A Queensland Commission of Inquiry into the actions of Jayant Patel at Bundaberg Hospital was derailed in 2005 after a court found that the conduct of the commissioner, Tony Morris, QC, created an appearance of bias. Morris had displayed great sympathy for witnesses giving evidence against Patel and hostility towards hospital administrators. This created the impression he had prejudged the outcome of the inquiry. Would a claim of apprehended bias against Heydon succeed?
Whether Heydon’s conduct amounts to apprehended bias will depend on a close examination of case’s circumstances.
The unions might seek to draw an analogy with a well-known English case involving Chilean dictator Augusto Pinochet. Pinochet’s extradition was overturned because one of the judges who had ordered extradition was linked to Amnesty International – a body that had campaigned for Pinochet’s extradition and was involved in the case.
On the face of things, that Heydon was prepared to accept an engagement to speak at a Liberal Party function certainly looks bad. But the fair-minded lay observer would look closer. He or she would keep in mind, for example, that it is common for retired High Court judges (such as Heydon) to accept public speaking engagements for various organisations.
Significant, too, would be Heydon claiming he was unaware that the event was a Liberal Party fundraiser, and his withdrawal from the engagement. The detail of these circumstances is gradually being revealed.
The unions might try to build up a bigger picture of Heydon’s links to the Liberal Party. The Howard government appointed Heydon to the High Court, but if that created an appearance of bias, judges would regularly be disqualified from cases involving governments.
Then there’s Heydon’s membership of the selection committee that awarded Prime Minister Tony Abbott a Rhodes Scholarship. But, such a fleeting association more than 30 years ago hardly amounts to a close relationship. More promising material for the unions might be Heydon’scontroversial intervention in the evidence of Opposition Leader Bill Shorten before the royal commission in July.
The outcome of any case will depend on the detail of the case mounted by both sides. On the available facts it is possible that Heydon’s position would not breach the legal rule against apprehended bias."
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