On Monday, Dyson Heydon will pass judgment on whether a reasonable observer might think that the appearance of his impartiality has been compromised by his own misjudgments.
Heaven knows how he will be judge in his own cause, but whatever he does decide should not be allowed to obscure all of the instances of rotten judgment displayed throughout the affair.
By Tony Abbott, the prime minister, in deciding to have a Royal Commission in the first place. And by appointing Dyson Heydon, of all people, to conduct the inquiry.
By Heydon, not a bad man but never judicious, in accepting a commission he could never have done well. Then, in accepting a Liberal Party speaking invitation he ought to have known would make him an object of criticism. And then by his blindness, or oversight, in ignoring the umpteen chances to save himself from himself, before he made a complete fool of himself.
By the secretary functionary of a Liberal Party branch who put Heydon in such an untenable position. Hayden may be clever but was never smart, but surely people engaged in active politics have a nose for trouble.
And by Liberals generally, from Abbott and Attorney-General George Brandis down, who have pretended that the argument is about Heydon's integrity or reputation, rather than his commonsense or regard for the proprieties. By the same people, and indeed, by lesser standards who gave us the "stitch-up" attacks on Gillian Trigg of the Human Rights Commission. These are not only hypocrites, but inconsistent ones.
The primary beneficiary will probably be the Labor Party. Its leader, Bill Shorten, doesn't deserve the personal as well as professional luck involved. Nor do those unions whose dirty linen was there for all to see.
Union crookedness, crime and corruption deserved to be exposed, if by more straightforward means than by a partisan Royal Commission, with hand-picked staff. It was, of course, created, like so many things associated with Tony Abbott not for any public good that could be achieved, but for mere instant partisan advantage. There is no institution, tradition or convention that Abbott will allow to stand in the way of fighting his war for the maintenance of institutions, traditions and conventions.
But Abbott would have had no occasion for his opportunism had not corruption in party and unions been so obvious.
Heydon has a fine legal mind. When he went, late, to the Bar he immediately got complex briefs, particularly in appellate courts. Such courts generally take the facts, as determined in inferior, trial courts, for granted and focus on defining (or finding out) the law, and arguing about how it applies to the facts in hand.
Appellate work is highly intellectual, and puts one in the company, professionally and socially, of other top advocates and senior appellate judges. Most are semi-monastic and deeply conservative. The genius and style of Heydon was generally to complicate rather than to simplify.
He was the darling of a coterie of appellate judges around Justice Roddy Meagher, most of whom were eccentric, proudly reactionary and given, increasingly, to despise judicial innovators, law reformers and those who saw themselves as dispensing justice rather than applying the law.
Heydon was widely thought to have breached convention when he made a speech to a Quadrant dinner, later reproduced in Quadrant, attacking progressive and "political" judges and judicial liberals, particularly focusing on two former Australian Chief Justices, Sir Anthony Mason and Sir Gerard Brennan. He claimed for himself the mantle of another former Chief Justice, Sir Owen Dixon, as the model of judicial restraint and black letter law.
This speech, and its sneering style, was seen as an application for appointment to the High Court by a Howard government which was sick of judicial meddling, not least over refugees and native title. Howard, a law school contemporary of many of the mutually regarding circle around Meagher, rejected the nomination made by Philip Ruddock, then his attorney-general, and himself chose Heydon.
But Heydon failed to live up to expectations and became a judicial failure. This was not for want of flashing the technical brilliance he had demonstrated in academia and the bar, nor because he found High Court (or earlier Court of Appeal work) beyond his capacity. He wrote long and almost impenetrable, closely argued, judgments, complaining at the same time of the poor grammar of more readable colleagues. He had an arid, withering wit, sometimes admired on the court, for shooting down arguments from counsel and,casually demonstrating his immense learning, particularly in European history.
But however good his syllogisms, he seemed unable to persuade his peers. He failed to win the confidence, respect and deference of other judges. He once implied that this was their fault, because they were sheep. Diplomacy was never his style.
Other judges, such as Lionel Murphy, or Michael Kirby – even, over a long period Owen Dixon – were often in dissent. But each wrote for history and principle as much as instant dispute resolution, and have been, or will be, vindicated. No one much quotes Heydon, and, most likely, no one ever will.
Here's how I wrote about Heydon 2½ years ago, long before trade union inquiries.
"Heydon's term on the court has now finished without his having made much impact on the court or, more humiliatingly, on the law. Somehow, he simply did not live up to his promise.
"His fame did not increase. Nor did his influence on other judges. Instead he ended up as a judicial hermit, often in dissent … Rarely did he make a difference, either with reasoning or result.
"Waspish and mostly seemingly furious at his fellow judges, he found his approach, reasoning and conclusions were being simply ignored.
"Heydon, who had once attacked judges for making frankly political statements, was now to be found making open sneers about judges he thought politically correct, in the process making obvious his own conservative world view.
"The judge who claimed to be the intellectual heir of Owen Dixon and said (dubiously) that Dixon had not made judicial policy of his personal opinions, now used his own personal opinions to resolve some policy questions (such as in the wrongful birth case).
"The judge who mocked activist judges for using computers to troll the world for law reports proposing novel propositions undermining established ones, or using huge footnotes and copious references and asides, began filling judgments with footnotes, asides, recondite allusions to obscure history and personal attacks on his colleagues.
"How did a man of such promise find himself utterly sidelined?
"It was, it seems, because he was no good at judicial politics. If brilliant in the law, he could not give great committee. He might have had marked success as an advocate addressing judges but, as a judge, seemed to lack persuasive capacity with colleagues, either in conferences discussing cases or with his own draft judgments."
It is not hard to find political asides, all betraying his conservative instincts, in his judgments. But it is quite wrong to think him a reflex Liberal, or to imagine that he has anything but deep contempt for politicians of any party.
The problem with Heydon has never been a desire to please politicians, but a studied unworldliness, impracticality and lack of experience and empathy in common politics and economics. He has almost no experience as a fact finder. He has no background in industrial relations or the factory floor. Even his work on behalf of great captains of industry was focused on tax and major commercial disputes, rather than real-world problems. I half suspect that he assumes that all trade unions are prima facie criminal conspiracies under the 1825 (British) Combinations Act.
There are good Tory barristers and ex-judges who could have been well suited for a commission, if there needed to be one, into trade unions. Even for a fair report, rather than the "stitch-up" that everyone assumes Abbott wanted and intended.
Heydon, former top-level judge or not, was not of the background and temperament, including judicial temperament, to do the job. His performance of it will not improve his legacy, increase the prestige of the court, or encourage other former judges to continued public service.
Abbott was perfectly entitled to want to attack corruption in the labour movement, whether for political reasons or in a genuine effort to seek reform.
But his judgment was rotten in thinking he could effectively achieve either by a royal commission, just as it was with an inquiry into roof insulation scandals. More is involved than breach of convention about inquiries into previous governments, or a propensity to choose commissioners likely to see things as Abbott does. [These, after all, produce a certain self-correction, since reports from obvious partisans, or mates, such as the Commission for Audit, struggle for public acceptance.]
The real misjudgment is with the format. There is serious corruption in the trade union movement,. It is a scandal, a cancer on the economy and a blot on public life. It should be addressed by the state and the courts and, given that Labor itself will do nothing, reform must probably happen from conservative governments.
The effects of union corruption spill over into, and corrupt, the political arena, because one of the objects of industrial corruption is increasing power in the councils of the Labor Party. It might be true, in one sense, that an obviously crook Labor Party can stew in its own juices while voters see how so many of its leaders are unfit for public office. But unions have legal power, supported by the state, and parties are given millions by the state. The state has a right to insist on at least minimum standards of honesty, integrity and transparency.
If Abbott had evidence of union corruption, he should have assisted police to establish a task force to do something about it. By converting the affair into a political stunt, he has created a serious risk that even standover men, solicitors of bribes and people guilty of fraud will escape justice. That's rotten policy and rotten politics.
Even if Abbott had not realised the obvious limitations of Heydon, or the dangers of the royal commission approach, one might have expected his colleagues, or political advisers, to have the wit to warn him from a typically disastrous captain's pick. But Abbott, of course, will not listen.
It is entirely typical of the fundamental unsuitability of Heydon for the job that he did not see that he was not the man for the job. That was even before his colossal misjudgment of accepting an invitation to a party political function and of his "overlooking" its obvious partisan nature.
Perhaps Heydon is simply naive and innocent, unready for the nasty constructions that observers might put on his foolishness. That might explain his stupidity, but again underlines why he should not have been chosen for the job.
But what of the Liberal machine?
Why can explain the silliness of those who invited him to give a speech at a party political occasion, or, not having originally realised that it could present problems, persisted with it after the conflict was obvious? State organisers had to know too. What were they thinking? Did no one sense a danger?
A time may come, indeed, when people will be relieved the whole charade came to an embarrassing halt before Heydon had compounded all of his misjudgments by actually delivering his oration, perhaps to a convocation of senior Liberals, including Howard and Abbott. How much more righteous, then, would have been the concern for appearances. How much more easy to dismiss the evidence gathered by his commission.
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