The Australian Council of Trade Unions (ACTU) will ask the royal commissioner into trade union corruption, Dyson Heydon, to disqualify himself – an application he will hear today.
If the move is unsuccessful, the unions will appeal to higher courts.
Professor Nicholas Cowdery QC thinks Justice Heydon can be impartial in judging himself. You see, it’s the training of the legal mind.
Cowdrey did not think the revelations about the Sir Garfield Barwick address were grounds for Justice Heydon to disqualify himself.
Julian Burnside has a different view:
“I think he is an honourable person and I think in the circumstances an honourable person would step aside.”
John Barron asks Who is the royal commissioner being urged to resign over Liberal links? In an article well worth reading, Barron says Heydon was known as the “The Great Loner” on the High Court of Australia. A very black letter lawyer.
The question is raised as to whether judges are best placed to head royal commissions. The ‘adversarial’ system they are used to is very different from the ‘inquisitorial’ approach required.
Anna Olijnyk has done an Explainer on the notion of ‘apprehended bias’. The essence seems to be:
- 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.
She examines the case in some detail rather than just delivering a verdict. She thinks Heydon’s controversial intervention in the evidence of Opposition Leader Bill Shorten before the royal commission in July is relevant. Finally:
- 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.
Whether Heydon’s actions and those of the government that appointed him were prudent or popular is a separate question.
From Barron’s article, Heydon seems a person supremely confident of his ability as a judge. I don’t think he will exclude himself. Nevertheless if the ACTU appeals the work of the commission could be side-tracked for a very long time.
Mungo MacCallum thinks the damage is done:
- So this means that the rest of the proceedings, up till and into the final findings and their dissection, will lack a measure of credibility – unacceptable in the context of a forthcoming election campaign.
Abbott was relying on his commission as another weapon to belt Shorten and all his works; now he has lost that battle before it has properly started.
Greg Barns believes It’s not a good look when judges are seen as judging themselves. He quotes Leslie Abramson, a professor of law at the Louis D Brandeis School of Law in Louisville Kentucky, who said in 1994:
- To permit the judge whose conduct or relationships prompted the motion to decide the motion erodes the necessary public confidence in the integrity of a judicial system which should rely on the presence of a neutral and detached judge to preside over all court proceedings.