Dyson Heydon And The Final Word On Royal Commission Bias (Hint: It Starts With ‘T’, Ends With ‘Edious’)

Last week, former Justice of the High Court, Dyson Heydon published his reasons as to why he would stay on as Royal Commissioner. This 67-page document is unlikely to be read by many, including most of those who comment on it.

This is not because it is an inaccessible legal document: it’s not. It just requires a great deal of patience, because it’s very tedious.

Former Justice Heydon’s reasons aren’t written in the impenetrable, convoluted prose that gives law students nightmares in the brief windows of sleep they occasionally snatch. The issues considered are actually pretty simple.

However, it takes a reasonable amount of determination to wade into the sludge and then keep pushing on.

Those who do read it are unlikely to be persuaded by Heydon one way or the other. True believers won’t need Heydon’s reasoning to stand by their man.

For most Australians, enough mud has been thrown so that whatever the Royal Commission ultimately finds, its results will be tinged with memory of the Liberal fundraiser. Heydon had a chance to stand down, or to fully refute his critics, and he’s managed to do neither.

The reasoning isn’t persuasive because it doesn’t read like a dispassionate weighing of the evidence. It reads more like a lawyer’s brief for the defence.

Heydon squabbles over every point, concedes no ground on any issue, complains about this or that use of language, sets up straw men to knock down, and instead of fully setting out the union arguments and the evidence they lay out for them, Heydon breezily paraphrases the case he rejects.

Heydon also separates out what he calls “false issues”, as though they are to be separately considered, and thus allows them no cumulative effect as evidence.

Consider one of the “false issues” that Heydon thought should be considered separately to his consideration of possible apprehended bias.

Heydon said in April 2014 that he would only give the Sir Garfield Barwick Address if the royal commission had finished. He says that he later forgot this stipulation, but even if he didn’t, and simply changed his mind, it doesn’t matter, because – as he has already resolved – there’s nothing improper about speaking at the address anyway.

The ACTU observed – in another “false issue” – that if Heydon didn’t think it okay to give the talk in April 2014, and withdrew from it in August 2015 when it was made clear to him that it could be described as a Liberal Party fundraiser, then mightn’t a fair-minded lay observer apprehend some bias?

Dyson shoots this down by the power of assertion:

That idea rests on an obvious fallacy. Sometimes a decision-maker chooses not to do something, not because to do it will give rise to a reasonable apprehension of bias, but because the decision-maker for sensible reasons of risk management and self-preservation wishes to avoid the attacks of the suspicious and the malicious. That is the construction a fair-minded observer would put on the matter.

Case closed. Heydon knows what a fair-minded observer would think. He ends his reasoning by claiming the “fact” that the union groups’ observer “was not fair-minded”. The reasoning appears less open-minded discussion, and more dogmatic commitment to a preferred conclusion.

With that said, Heydon does get a few good shots in over the course of his reasons, though his style largely obscures the effect.

He observes that the unions which made the application about his apprehended bias conceded that he is not actually biased.

Heydon modestly replied that, “The submission denying actual bias is accepted.”

He writes that the unions conceded that if Heydon was a member of the Liberal Party, or had been to Liberal Party functions, this would not prove, in and of itself, that he was biased.

At this point, Heydon could have made much of this concession, admitted it was perhaps a difficult case, but ultimately, this was basically the same sort of thing, and a fair-minded person would concede that.

Instead, Heydon over-argued his case, as we will see, leaving a far less persuasive performance.

Heydon’s strongest point – and perhaps an unanswerable one – is based on a concession made by the union lawyers. Heydon observed that a previous speaker at the Barwick Address was a former Chief Justice of the High Court, Murray Gleeson.

The Australian Council of Trade Unions (ACTU) lawyer submitted that “I don’t think anyone would dare suggest what way his political leanings bend. I would imagine he would keep them very close to his chest.”

I don’t have the space here to discuss it, but I would argue that Chief Justice Gleeson – appointed by John Howard – led a conservative court, and was typically conservative in his judgments.

Anyway, Heydon responded to the ACTU’s comment about Chief Justice Gleeson by happily responding:

If no-one ‘would dare suggest’ what ‘political leanings’ were held by a person who had agreed to deliver and actually delivered the fifth annual Sir Garfield Barwick Address, then there can be no rational basis to attribute to me any political affiliation with the Liberal Party by reason that I agreed to but did not deliver the sixth annual Sir Garfield Barwick Address.

This should, more or less, have wiped out the case of the unions. If Heydon had argued upon a narrower basis, conceding that it was difficult and so on, then his argument would have been much stronger. Much of the rest of the case he makes is unpersuasive, and leaves the reader unconvinced.

To go through it, Heydon borrows from Justice Gageler a three-step test for apprehended bias: “Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.”

He begins by dividing the union case into two strands. One is that speaking at the Barwick Address showed his partiality towards the Liberal Party.

The second is that bias may be apprehended in believing he intended to raise money for the Liberals.

Ultimately, Heydon finds that it wasn’t really a Liberal party event or a fundraiser, that neither would cause any deviation from neutrally evaluating the merits, and that apprehending that deviation would be unreasonable.

Heydon doesn’t need to give himself such a resounding clearance on all three steps. The fact that he does so suggests that the point of the reasoning is to win an argument, not to thoughtfully consider one.

Heydon begins by arguing that merely having political views surely can’t disqualify someone from a Royal Commission:

“If it was enough to disqualify a person from a role because the fair-minded observer might conclude that the person held political views, there would be no-one who could occupy the role.

Further, whether those political views are publicly stated or known or not cannot make a difference. Otherwise, those who hide their political views and may be more likely to be biased would be allowed to sit but those who were open and honest would be disqualified. Reasoning suggesting this paradoxical conclusion suggests that the law is being misapplied.”

All this may sound reasonable enough, until you notice that he has presented political views generically, as though it is unreasonable to believe any political views might prejudice the fair hearing of an issue.

So, let us make it more concrete. Would someone who believes Communists are vicious thugs trying to destroy freedom everywhere be well situated to give a fair hearing to a dispute between Communists and non-Communists?

Would someone who believed that trade unionists should be shot be fit to chair a Royal Commission?

This is not to suggest that those are the types of views that Heydon holds. It is to suggest that political views can bias the fair hearing of an issue, depending on what those political views are, and what issues are being discussed.

Heydon purports not to understand this elementary point, with reasoning that seems crudely irrelevant.

Heydon then proceeds to set the bar for apprehended bias high enough so that he can easily cruise below it. He writes that for the necessary level of bias, “there must be something more than mere party membership or attendance at party functions, eg. active support of the organisation, or substantial involvement, or proselytizing.”

This is a bit hard to take seriously. Heydon seems to think that a fair-minded observer can only establish apprehend bias if they have considerable proof of it.

This is not the standard which the general public will take, which will be a much vaguer sense that Heydon agreed to speak at a Liberal Party fundraiser.

The Royal Commission has already been tainted in the public eye, and it will be viewed through the lens of the fundraiser, long after his reasons are forgotten.

Heydon’s reasoning then gets more combative. He argues it wasn’t an address just to Liberals, because everyone was free to attend. There was “no secrecy” about the event, and no “restrictions” on attendance either.

Heydon boldly wrote that

“If ‘Liberal Party event’ refers to delivery of a legal address to a dinner attended mostly or to a large extent by members of the Liberal Party (including Federal and State Members of Parliament) but which was open to and attended by others, leaving aside uncertainties as to the establishment of those facts precisely, it is hard to see why it should be called a ‘Liberal Party event’ instead of ‘event attended by Liberals and non-Liberals to hear a non-political legal address’.”

These kinds of earnest and selective arguments about why it shouldn’t be considered a Liberal Party event drag on for several paragraphs. Socialist Alternative has forums where not all speakers are Trotskyists, and Amnesty International sometimes screens films that have no direct connection to its mission of promoting human rights.

An event organised by a group is considered to be that group’s event, even if non-members are allowed to attend, and there is “no secrecy” about the event. All of this should be obvious, but justices in search of a favoured conclusion often have a talent for studious blindness.

Heydon observes the submission that previous speakers were various Liberal Attorney-Generals, and John Howard. Coincidence. Heydon writes: “Giving personal reminiscences, examining the contribution of lawyers from both sides of politics, and discussing the values of Sir Garfield Barwick – values on which the Liberal Party can have no monopoly – negate the idea that the event was what might be called a ‘Liberal Party event’”.

After making the point noted above about Gleeson, Heydon observed the next speaker will be former High Court Justice Callinan. Heydon describes him as “very distinguished”, and having no affiliation with the Liberals.

Callinan was also appointed by Howard.

The following quote is an extract from one of his judgments. Try to guess where he might lie on the political spectrum: “It was only after the collapse of the Iron Curtain… that all of the designs of the communist state upon the rest of the world, and the ruthlessness with which it was prepared to pursue them, were fully realized and acknowledged”. This from the next person to give the totally non-political Barwick Address.

As for whether the event was a fundraiser, Heydon observed that it wasn’t expected to raise any money, and so was not an actual fundraiser. As for the “political context” – that this was a Royal Commission ordered by the Liberals, and the ALP has strong connections to the trade unions – Heydon claims its “significance” was exaggerated by the applicants.

This is where he again sounds like a partisan making a one-sided case, rather than sifting evidence even-handedly.

At times Heydon seems to get pretty desperate. For example, Heydon writes, “For one thing, the submissions overlook the fact that the members of many trade unions are not necessarily members of the Australian Labor Party.”

Also, some trade unions “can be quite hostile” to ALP policy. And state Labor governments didn’t revoke the Royal Commission.

He concludes, “These circumstances weaken the theory that the Royal Commission is politically charged. It is supported in very important respects by governments of all parties including those with no Liberal component.”

Heydon then argues even if “the inquiry is ‘politically charged’”, that “does not establish that there might be no neutral evaluation of what is inquired into”. And even if he is privately partial to the Liberals, so what? He’s a former justice, for heaven’s sake!

As he explains, “The authorities make it plain that the fair-minded observer would have regard to my experience in the law as an academic lawyer, a barrister and a judge working in an ethos where judges are expected to direct their entire professional career towards excluding the ‘irrelevant, the immaterial and the prejudicial’”.

By now, this article might be getting as tedious as Heydon’s reasons. So I’ll address two more points in his reasoning.

One is that a fair-minded observer would see how busy he was with the Royal Commission, so it would be “fanciful” to expect that observer to expect Heydon to read the attached invitation to the Barwick Address.

The second is that, in explaining how little money would be raised by the event, Heydon explains that the cost of the dinner was “so low”.

Perhaps comparatively, given the figures provided of other fundraisers charging $550 a head, the dinner was relatively inexpensive. Yet describing a meal’s cost as “so low” when it came at a price of $80 per person may indicate another reason why Heydon might not be entirely sympathetic to trade unions in general.

All of this is, in a sense, beside the point. The Royal Commission itself was obviously intended as a political weapon against the ALP, and I suspect most Australians, regardless of where they stand on the political spectrum, already knew this.

That doesn’t mean that it couldn’t do valuable or revealing work. The question was whether it would look into union corruption and governance honestly and fairly.

Tony Abbott appointed a conservative former justice of the High Court, assuming that the Royal Commission would be in a safe pair of hands. I imagine Heydon will conduct his inquiries with as much reasonableness and honesty as any conservative might.

The unions didn’t try to prove his bias with reference to Heydon’s speech to a Quadrant dinner, though it is no less suggestive of Heydon’s political sympathies.

His speech included mockery of “modern judges” who “think that they can not only right every social wrong, but achieve some form of immortality in doing so. The common law is freely questioned and changed. Legislation is not uncommonly rewritten to conform to the judicial worldview.”

That speech has been described as Heydon’s successful “job application” to John Howard for the High Court.

The unions took a relatively cautious approach by failing to argue that Heydon actually is a biased Royal Commissioner.

Though this may be an unorthodox position on the left, I have no problem with Heydon’s role as Royal Commissioner. I think Abbott would have been smarter to find a justice with more credibility for progressives, who would be likely to wind up with a similar final report anyway.

Though the final report is likely to make ponderous reading, I expect Heydon to prosecute the issues reasonably, fairly and honestly.

Claims are often made about union corruption. This is a chance to investigate the issue fully, by someone with the kind of credentials that it will be hard for conservatives to reproach.

Already, Heydon observed that in his interim report, “Many, many findings favourable to [Julia Gillard] and rejecting the attacks of her numerous critics were made… All possible findings of criminal misconduct or actionable civil misconduct were rejected”.

This is a good chance for the right to make their case against trade unions, and for the trade unions to fix some of what needs fixing.