John Dyson Heydon is, at first blush, an unlikely candidate for disqualification from sitting on a court or a statutory inquiry into corruption and maladministration. Justice Heydon cultivated a reputation for punctiliousness throughout a long career in academia and on the bench, including a 10-year stint on the High Court, and frequently inveighed against what he saw as rulings based on personal or political considerations rather than on existing law – judicial activism. He would certainly be well acquainted with the requirement for judges to disqualify themselves from cases in which there was actual bias or a perception of apprehended bias.
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Nevertheless, two days after hurriedly withdrawing from a speaking engagement at a Sydney dinner organised for and on behalf of the Liberal Party, Justice Heydon resumed his seat at the Royal Commission into Trade Union Governance and Corruption in Sydney. The inquiry over which he has presided since its establishment by the Abbott government in March 2014 has frequently been characterised as a union witch hunt and an attempt to slander the Labor Party. There is no evidence or suggestion that Justice Heydon's stewardship of the royal commission is that way inclined, or that his judgments on the High Court were in any way influenced by party political considerations. Nonetheless, when a Liberal Party judicial appointee accepts an invitation to attend a Liberal Party function at which guests are invited to donate to party coffers, a fair-minded lay observer might reasonably apprehend that he may not bring an impartial and unprejudiced mind to the resolution of the question that appointee is required to decide.
Justice Heydon says he was unaware it was a fund-raiser, and Attorney-General George Brandis has gone further, arguing it was not a not a party political event at all. In fact, the event was the annual Sir Garfield Barwick address, organised by the Liberal Party's NSW Division to honour the former High Court chief justice and attorney-general in the Menzies government. But it seems clear raising money for electoral expenses and soliciting more money on the night was also on the organisers' minds. Invitations were sent on Liberal Party letterhead, with invitees advised to make the $80-a-head cost payable to the party's NSW division. Those who delivered the Garfield Barwick address in the past have been predominantly former Liberal Party attorneys-general, and Senator Brandis' claim this was a legal rather than political event strains credulity. Evidently Justice Heydon thought so too, as his decision to withdraw after being apprised of the dinner's dual nature was prompt.
It's speculated the invitation was extended on the basis that Justice Heydon would have delivered his findings before the dinner was held. The royal commission was originally intended to wrap up last December, which adds weight to this theory. Last October, however, Senator Brandis (though not asked to explicitly to do so) granted Justice Heydon an extension, and broadened the royal commission's scope to allow investigation of union criminality. The irony of this will not be lost on Senator Brandis' critics.
For a judge of Dyson Heydon's conscientiousness not to have been aware of the party political nature of the Barwick address seems extraordinary. But having left the High Court three years ago and "retired",he may have become less circumspect. The other puzzling element is the Liberal Party's belief in Justice Heydon's suitability as a flag-waver. Even if the royal commission had concluded last December and delivered its findings promptly, inviting a former commissioner to a Liberal Party function a few months afterwards would certainly have raised eyebrows.
The potential for royal commissions to swing around and bite the government of the day on the backside has been amply demonstrated in years past. Now, the Coalition's attempt to shine a light on union chicanery has been dealt an unexpected and embarrassing credibility blow. Liberal Party despair at Tony Abbott's leadership will deepen as a result, and taxpayers will rue the $80 odd million spent on an enterprise likely to end in ignominy. Opposition MPs may be gloating at the Liberals' own goal, but with the unions sure to reject whatever recommendations Justice Heydon makes (even though the movement desperately needs systemic reform) overdue efforts to distance the ALP from organised labor will stall. Justice Heydon is sticking doggedly to his appointed task, but the perception of bias, real or imagined, has rendered his stewardship of the royal commission untenable.
