I wanted this to be my first post because, even as I write this, the issue has faded somewhat into the background noise of last weeks news headlines. If I am right, however, it will be back with a vengeance in a few months time when the Royal Commission into Union Corruption releases its final findings.
The issue in question is whether Dyson Heydon AC QC, a respected former member of the High Court of Australia, turned Royal Commissioner was right in his decision to not remove himself fromhis position of Commissioner of the Royal Commission into Union Corruption in light of accusations of bias after he accepted an invitation to speak at a Liberal party fundraiser.
Well, more accurately, Heydon agreed to deliver the Sir Garfield Barwick address (a prestigious law lecture) which he had agreed in principle to do before the Royal Commission into Union Corruption had started. It was only after agreeing in an email to present the lecture that he was notified to the fact that it was typically presented as party of a Liberal party fundraiser. Pretty mundane stuff, as far as corruption accusations go.
Straight off the bat, I do not for a minute think that a man of Dyson Heydons stature and professional integrity would have accepted the invitation to speak at a Liberal party fundraiser had he been aware and, even if he had, I do not believe it would have had the slightest impact on his ability to impartially head the Royal Commission. That having been said, I think he should have resigned and this is why.
I'm not alone in holding Dyson Heydon (or as I know him better after five years of law school, 'Dyson J') in an incredibly high regard. Indeed, Heydon was ironically regarded as one of the staunchest 'black-letter' judges in the High Court and was famous (or infamous) for his almost militant approach towards judicial independence and unrestrained disdain for 'activist judges'. Even the parties represented in the Royal Commission did not seem to believe that Heydon was, in fact, biased against them in any way. The official report released justifying Heydon's decision not to step down states that; "About half way through the oral hearing of these applications on 21 August the following submission was advanced by senior counsel for the ACTU: ‘I know you understand it, but for the benefit of everyone else, I, at no point in these submissions, are suggesting that you [are] actually biased’."So if even the people who Heydon is allegedly being biased against don't think he's biased, then whats the issue?
When I first started my legal studies class in Year 10, one of the very first things I learned was that there are two types of bias. There is 'actual bias' and 'appearance of bias'. If we accept that Heydon remained steadfastly non-partisan, the issue remains that outwardly there is a perception of bias. Had the media not picked this story up and turned it into a political issue, it's possible that it could have been brushed aside easily enough. Even if there had been applications for Heydon's removal as Commissioner, nobody would have really batted an eyelid when he declared himself fit to remain in his position. The fact, however, that for several days all Australian media was talking about the corrupt and biased Commissioner who was attending Liberal Party fundraisers. By the time Heydon released his 67-page report rationalising why he should not step down, any semblance of the clarity and legal precision in his report, for which he was well-known for during his illustrious judicial career, had become obsolete in the hype.
Heydon was right, legally, in his decision not to step down. After reading his report, the legal argument justifies him staying in his position, backed up by a wealth of statue and case law on apprehended bias in judicial officials. His 'black-letter', stickler-for-the-law approach might have been correct but it was not what was needed in that situation. He needed to take one for the team, so to speak, and ensure that any accusations levelled against him did not impact on the Royal Commission itself. The storm of controversy surrounding the case and his decision means that, even if he was right and there is no 'appearance of bias', his impartiality has been discredited enough to discredit the entire commission. This, I feel, is the bigger issue to this story that no one has been covering.
A case like this has no real bearing on the actual outcome of the Royal Commission. Heydon will continue to do his job well and the Royal Commission will go on. The problem comes at the end of the process when the findings are fully released and anyone who doesn't like the verdict can automatically play the 'bias' card. Anyone who disagrees with the outcome can discredit the entire process as having been biased against them from the start and the integrity of the entire Royal Commission process, not to mention the integrity of Dyson Heydon, has been unfairly tarnished in the eyes of the public. Heydon should has stepped down for no reason other than to preserve the integrity of the Royal Commission itself.
This is a major problem because Royal Commission's cannot afford to have their integrity tarnished. They are one of the most sacred and highly respected institutions in this country and if they were to lose their significance or the respect they command, it would be a terrific undermining of our entire judicial process. Royal Commissions have done fantastic work to make Australia better throughout our history and the current Royal Commission into Institutional Responses to Sex Abuse is a perfect example. If we destroy the integrity of one Royal Commission, we destroy the integrity of all of them.
Further, this is the worst possible time for any diminution of the respect held for the Royal Commission process. Within 6 months of coming into power, the Tony Abbot-led, Coalition government launched two Royal Commissions, one focused on a specific policy of the previous Labor government and one targeting corruption in the union movement, traditionally the powerbase of the Labor party. Now, I'm not levelling any accusations here that these Royal Commissions are politically motivated. I am, however, saying two things;
1) It could definitely be argued that, from a particular view point, these inquiries into the Labor party and their support base could definitely be seen as politically motivated. As with the case of Dyson Heydon, the perception of bias is just as important as the actual bias itself. If these Royal Commissions are thought of in the general public as being politically motivated, then it removes any semblance of impartiality and authority from them and cheapens their findings.
2) When Dyson Heydon accepted an invitation to what turned out to be a Liberal party fundraiser, everyone just accepted this to be a form of bias but why? He isn't a member of the Liberal party and he wasn't going to the function to support the Liberal party, only to deliver a law lecture. Why does the fact that he came into contact briefly with the Liberal party make it a case of bias if the Commission is not politically motivated and the Liberal party supposedly has no material interest in the outcome of the Commission? Further, would it still have made headlines that Dyson Heydon came into contact with the Liberal party if he was heading up the Royal Commission into Institutional Responses to Sex Abuse instead of the Royal Commission into Union Corruption? Nothing in this world is free from politics.
The issue in question is whether Dyson Heydon AC QC, a respected former member of the High Court of Australia, turned Royal Commissioner was right in his decision to not remove himself fromhis position of Commissioner of the Royal Commission into Union Corruption in light of accusations of bias after he accepted an invitation to speak at a Liberal party fundraiser.
Well, more accurately, Heydon agreed to deliver the Sir Garfield Barwick address (a prestigious law lecture) which he had agreed in principle to do before the Royal Commission into Union Corruption had started. It was only after agreeing in an email to present the lecture that he was notified to the fact that it was typically presented as party of a Liberal party fundraiser. Pretty mundane stuff, as far as corruption accusations go.
Straight off the bat, I do not for a minute think that a man of Dyson Heydons stature and professional integrity would have accepted the invitation to speak at a Liberal party fundraiser had he been aware and, even if he had, I do not believe it would have had the slightest impact on his ability to impartially head the Royal Commission. That having been said, I think he should have resigned and this is why.
I'm not alone in holding Dyson Heydon (or as I know him better after five years of law school, 'Dyson J') in an incredibly high regard. Indeed, Heydon was ironically regarded as one of the staunchest 'black-letter' judges in the High Court and was famous (or infamous) for his almost militant approach towards judicial independence and unrestrained disdain for 'activist judges'. Even the parties represented in the Royal Commission did not seem to believe that Heydon was, in fact, biased against them in any way. The official report released justifying Heydon's decision not to step down states that; "About half way through the oral hearing of these applications on 21 August the following submission was advanced by senior counsel for the ACTU: ‘I know you understand it, but for the benefit of everyone else, I, at no point in these submissions, are suggesting that you [are] actually biased’."So if even the people who Heydon is allegedly being biased against don't think he's biased, then whats the issue?
When I first started my legal studies class in Year 10, one of the very first things I learned was that there are two types of bias. There is 'actual bias' and 'appearance of bias'. If we accept that Heydon remained steadfastly non-partisan, the issue remains that outwardly there is a perception of bias. Had the media not picked this story up and turned it into a political issue, it's possible that it could have been brushed aside easily enough. Even if there had been applications for Heydon's removal as Commissioner, nobody would have really batted an eyelid when he declared himself fit to remain in his position. The fact, however, that for several days all Australian media was talking about the corrupt and biased Commissioner who was attending Liberal Party fundraisers. By the time Heydon released his 67-page report rationalising why he should not step down, any semblance of the clarity and legal precision in his report, for which he was well-known for during his illustrious judicial career, had become obsolete in the hype.
Heydon was right, legally, in his decision not to step down. After reading his report, the legal argument justifies him staying in his position, backed up by a wealth of statue and case law on apprehended bias in judicial officials. His 'black-letter', stickler-for-the-law approach might have been correct but it was not what was needed in that situation. He needed to take one for the team, so to speak, and ensure that any accusations levelled against him did not impact on the Royal Commission itself. The storm of controversy surrounding the case and his decision means that, even if he was right and there is no 'appearance of bias', his impartiality has been discredited enough to discredit the entire commission. This, I feel, is the bigger issue to this story that no one has been covering.
A case like this has no real bearing on the actual outcome of the Royal Commission. Heydon will continue to do his job well and the Royal Commission will go on. The problem comes at the end of the process when the findings are fully released and anyone who doesn't like the verdict can automatically play the 'bias' card. Anyone who disagrees with the outcome can discredit the entire process as having been biased against them from the start and the integrity of the entire Royal Commission process, not to mention the integrity of Dyson Heydon, has been unfairly tarnished in the eyes of the public. Heydon should has stepped down for no reason other than to preserve the integrity of the Royal Commission itself.
This is a major problem because Royal Commission's cannot afford to have their integrity tarnished. They are one of the most sacred and highly respected institutions in this country and if they were to lose their significance or the respect they command, it would be a terrific undermining of our entire judicial process. Royal Commissions have done fantastic work to make Australia better throughout our history and the current Royal Commission into Institutional Responses to Sex Abuse is a perfect example. If we destroy the integrity of one Royal Commission, we destroy the integrity of all of them.
Further, this is the worst possible time for any diminution of the respect held for the Royal Commission process. Within 6 months of coming into power, the Tony Abbot-led, Coalition government launched two Royal Commissions, one focused on a specific policy of the previous Labor government and one targeting corruption in the union movement, traditionally the powerbase of the Labor party. Now, I'm not levelling any accusations here that these Royal Commissions are politically motivated. I am, however, saying two things;
1) It could definitely be argued that, from a particular view point, these inquiries into the Labor party and their support base could definitely be seen as politically motivated. As with the case of Dyson Heydon, the perception of bias is just as important as the actual bias itself. If these Royal Commissions are thought of in the general public as being politically motivated, then it removes any semblance of impartiality and authority from them and cheapens their findings.
2) When Dyson Heydon accepted an invitation to what turned out to be a Liberal party fundraiser, everyone just accepted this to be a form of bias but why? He isn't a member of the Liberal party and he wasn't going to the function to support the Liberal party, only to deliver a law lecture. Why does the fact that he came into contact briefly with the Liberal party make it a case of bias if the Commission is not politically motivated and the Liberal party supposedly has no material interest in the outcome of the Commission? Further, would it still have made headlines that Dyson Heydon came into contact with the Liberal party if he was heading up the Royal Commission into Institutional Responses to Sex Abuse instead of the Royal Commission into Union Corruption? Nothing in this world is free from politics.
