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Dyson Heydon considers commission future after union submissions – as it happened Dyson Heydon considers commission future after union submissions – as it happened
(30 days later)
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Summary of Friday's hearingSummary of Friday's hearing
Dyson Heydon is now considering his future after hearing three union applications to withdraw from the royal commission into trade union governance and corruption.Dyson Heydon is now considering his future after hearing three union applications to withdraw from the royal commission into trade union governance and corruption.
After more than a week of political upheaval over the revelation Heydon had initially accepted an invitation to attend a Liberal party fundraiser, the former high court judge president over a hearing about the recusal applications.After more than a week of political upheaval over the revelation Heydon had initially accepted an invitation to attend a Liberal party fundraiser, the former high court judge president over a hearing about the recusal applications.
Here is a summary of the key points from today:Here is a summary of the key points from today:
Thanks for joining me for today’s coverage and for your comments and tweets. Guardian Australia will keep you updated when Heydon announces his decision.Thanks for joining me for today’s coverage and for your comments and tweets. Guardian Australia will keep you updated when Heydon announces his decision.
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The prime minister, Tony Abbott, has addressed reporters in Perth, but nobody asked about the developments at the royal commission in Sydney, so I will proceed to the summary of today’s events.The prime minister, Tony Abbott, has addressed reporters in Perth, but nobody asked about the developments at the royal commission in Sydney, so I will proceed to the summary of today’s events.
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The ACTU secretary, Dave Oliver, has been speaking to reporters outside the royal commission hearing in Sydney’s CBD.The ACTU secretary, Dave Oliver, has been speaking to reporters outside the royal commission hearing in Sydney’s CBD.
Like the lawyer representing the ACTU, Oliver expressed his displeasure that the commissioner originally wanted to hear the application for disqualification on Monday.Like the lawyer representing the ACTU, Oliver expressed his displeasure that the commissioner originally wanted to hear the application for disqualification on Monday.
We now know that if this matter was heard on Monday, which was the original desire of this commission to do, it would have been done without having the full documentation before us. It would also have been done on the basis that we wouldn’t have had an explanation on why Commissioner Dyson Heydon didn’t acknowledge the fact that he was sent the invitation on two occasions.We now know that if this matter was heard on Monday, which was the original desire of this commission to do, it would have been done without having the full documentation before us. It would also have been done on the basis that we wouldn’t have had an explanation on why Commissioner Dyson Heydon didn’t acknowledge the fact that he was sent the invitation on two occasions.
On Monday when the documentation was provided, we knew it had been sent to him once, and it wasn’t until this morning in the middle of this hearing that they then revealed and provided us with an email that demonstrated that Dyson Heydon had received the invitation twice.On Monday when the documentation was provided, we knew it had been sent to him once, and it wasn’t until this morning in the middle of this hearing that they then revealed and provided us with an email that demonstrated that Dyson Heydon had received the invitation twice.
Oliver said he had never suggested that there had been any doctoring of any documentation, but he returned the focus to the notion Heydon received the invitation twice.Oliver said he had never suggested that there had been any doctoring of any documentation, but he returned the focus to the notion Heydon received the invitation twice.
It may be an oversight on one occasion but now we have no explanation for the second occasion of receiving this email.It may be an oversight on one occasion but now we have no explanation for the second occasion of receiving this email.
(The counsel assisting the commission, Jeremy Stoljar SC, said solicitors for the CFMEU were given an electronic copy of all emails at 11.40am yesterday at their request, but that material was not provided to ACTU and AWU representatives “by oversight of commission staff”. But Stoljar said it was clear from the face of the hard copy versions released on Monday that the invitation was enclosed or attached, and there was no basis for claiming any doctoring.)(The counsel assisting the commission, Jeremy Stoljar SC, said solicitors for the CFMEU were given an electronic copy of all emails at 11.40am yesterday at their request, but that material was not provided to ACTU and AWU representatives “by oversight of commission staff”. But Stoljar said it was clear from the face of the hard copy versions released on Monday that the invitation was enclosed or attached, and there was no basis for claiming any doctoring.)
Despite Heydon flagging a decision on the unions’ applications on Tuesday next week, Oliver called on the prime minister to act in the meantime:Despite Heydon flagging a decision on the unions’ applications on Tuesday next week, Oliver called on the prime minister to act in the meantime:
After today we are now calling on Tony Abbott to shut this farce down - shut this royal commission down this afternoon - he can do that. That’s what we’re asking him to do.After today we are now calling on Tony Abbott to shut this farce down - shut this royal commission down this afternoon - he can do that. That’s what we’re asking him to do.
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The Labor leader, Bill Shorten, has been asked about the royal commission’s fate during a media conference in Canning in Western Australia, where there will be a byelection next month.The Labor leader, Bill Shorten, has been asked about the royal commission’s fate during a media conference in Canning in Western Australia, where there will be a byelection next month.
Should Dyson Heydon be deciding his own fate in the royal commission?Should Dyson Heydon be deciding his own fate in the royal commission?
Tony Abbott’s royal commission into his political enemies was always a political witch-hunt. We’ve seen in recent weeks the revelations that Tony Abbott’s captain’s pick, Dyson Heydon, saw nothing wrong with saying he would go to Liberal party events, Liberal party fundraisers. Now we see this quite amazing sort of debate happening today where the person accused of an apprehension of bias is being asked to judge themselves. Mr Abbott has failed the leadership test yet again. We know he has got poor judgment when it comes to his captain’s pick. Mr Abbott should never have allowed it to come to this debate where the person accused of the problem is judging themselves.Tony Abbott’s royal commission into his political enemies was always a political witch-hunt. We’ve seen in recent weeks the revelations that Tony Abbott’s captain’s pick, Dyson Heydon, saw nothing wrong with saying he would go to Liberal party events, Liberal party fundraisers. Now we see this quite amazing sort of debate happening today where the person accused of an apprehension of bias is being asked to judge themselves. Mr Abbott has failed the leadership test yet again. We know he has got poor judgment when it comes to his captain’s pick. Mr Abbott should never have allowed it to come to this debate where the person accused of the problem is judging themselves.
Is his role tenable?Is his role tenable?
We will have to see what happens today and in the coming days...I think there is a real problem here and we will see what happens today, but Mr Abbott has set up a royal commission to investigate his political enemies and in the last two years of this government Mr Abbott has spent taxpayer money to put three different Labor leaders into royal commissions. This is certainly, I think, all signs of a witch-hunt, and Mr Abbott should have acted before today.We will have to see what happens today and in the coming days...I think there is a real problem here and we will see what happens today, but Mr Abbott has set up a royal commission to investigate his political enemies and in the last two years of this government Mr Abbott has spent taxpayer money to put three different Labor leaders into royal commissions. This is certainly, I think, all signs of a witch-hunt, and Mr Abbott should have acted before today.
Shorten, who was questioned by the commission for two days in July regarding his time at the AWU and was chided by Heydon about his credibility as a witness, was tight-lipped about whether court action was warranted if the commissioner refused to resign. “Let’s not get ahead of ourselves,” Shorten said.Shorten, who was questioned by the commission for two days in July regarding his time at the AWU and was chided by Heydon about his credibility as a witness, was tight-lipped about whether court action was warranted if the commissioner refused to resign. “Let’s not get ahead of ourselves,” Shorten said.
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at 4.27am BSTat 4.27am BST
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Heydon adjourns to consider his futureHeydon adjourns to consider his future
The commissioner announces he will adjourn the hearing:The commissioner announces he will adjourn the hearing:
...to commence work on a consideration of this interesting and in some respects complex matter. I hope to complete that by Tuesday....to commence work on a consideration of this interesting and in some respects complex matter. I hope to complete that by Tuesday.
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Stoljar admits to email 'oversight' but rejects doctoring claimsStoljar admits to email 'oversight' but rejects doctoring claims
Counsel Assisting Jeremy Stoljar SC says an electronic copy of the email exchange was not provided on Monday “by oversight of the commission staff” but he rejectes the allegation of doctoring. He says there is no basis to say itCounsel Assisting Jeremy Stoljar SC says an electronic copy of the email exchange was not provided on Monday “by oversight of the commission staff” but he rejectes the allegation of doctoring. He says there is no basis to say it
...was altered or doctored in any way....was altered or doctored in any way.
Stoljar plays down any difference between the paper versions and electronic versions of the emails.Stoljar plays down any difference between the paper versions and electronic versions of the emails.
Robert Newlinds SC, for the ACTU, explains the significance of the discovery:Robert Newlinds SC, for the ACTU, explains the significance of the discovery:
You got the invtiation twice. That’s what the evidence shows, I think. The reason why I say I think is the way this has unfolded.You got the invtiation twice. That’s what the evidence shows, I think. The reason why I say I think is the way this has unfolded.
John Agius SC, for the CFMEU, says he had not claimed that the email was doctored or altered but that a fair-minded observer might form that conclusion.John Agius SC, for the CFMEU, says he had not claimed that the email was doctored or altered but that a fair-minded observer might form that conclusion.
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The hearing is resuming now.The hearing is resuming now.
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At the beginning of today’s hearing, correspondence between solicitors for the CFMEU and solicitors for the royal commission - both dated yesterday - were tendered as evidence. But I have yet to track down a copy of these documents, which may shed more light on the doctoring claims raised earlier today.At the beginning of today’s hearing, correspondence between solicitors for the CFMEU and solicitors for the royal commission - both dated yesterday - were tendered as evidence. But I have yet to track down a copy of these documents, which may shed more light on the doctoring claims raised earlier today.
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The commission is now having a short adjournment. But just before the break, Robert Newlinds SC, for the ACTU, returned to make clear he was not making any claim about doctoring of documents.The commission is now having a short adjournment. But just before the break, Robert Newlinds SC, for the ACTU, returned to make clear he was not making any claim about doctoring of documents.
But Newlinds also warned Dyson Heydon that he was not impressed about the commissioner’s attempt on Monday to force the ACTU to immediately bring on the application for disqualification. Newlinds said Heydon had wrongly claimed on Monday that all the relevant documents had been released:But Newlinds also warned Dyson Heydon that he was not impressed about the commissioner’s attempt on Monday to force the ACTU to immediately bring on the application for disqualification. Newlinds said Heydon had wrongly claimed on Monday that all the relevant documents had been released:
Boy, you’ve got to be confident when you tell someone they’ve got all the documents and you were wrong when you told me that.Boy, you’ve got to be confident when you tell someone they’ve got all the documents and you were wrong when you told me that.
Heydon adjourned the hearing at 12.29pm AEST “for a short time” to consider the matter. It’s unclear when he will return, but the commission has previously signalled that he might not make a decision on the recusal requests today.Heydon adjourned the hearing at 12.29pm AEST “for a short time” to consider the matter. It’s unclear when he will return, but the commission has previously signalled that he might not make a decision on the recusal requests today.
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at 3.41am BSTat 3.41am BST
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Just following up on the doctoring claims raised by John Agius SC.Just following up on the doctoring claims raised by John Agius SC.
The lawyer representing the CFMEU referred to tab 10 of MFI-2 . This was part of a bundle of emails released by the commission on Monday 17 August.The lawyer representing the CFMEU referred to tab 10 of MFI-2 . This was part of a bundle of emails released by the commission on Monday 17 August.
Tab 10 shows contains some emails from organiser Gregory Burton to Dyson Heydon on 12 August this year. The 11.12am email goes through the “final arrangements” for the Barwick dinner address, including the proposed order of events and details about the event. Burton followed up at 11.14am with an email saying he had omitted to ask whether he would be accompanied by a guest. The email trail contained, below the new emails, the previous emails about the event, including a 12 June email inviting people to the event with the subject line “Liberal Party of Australia (NSW Division) - Lawyer’s Branch and Legal Policy Branch”.Tab 10 shows contains some emails from organiser Gregory Burton to Dyson Heydon on 12 August this year. The 11.12am email goes through the “final arrangements” for the Barwick dinner address, including the proposed order of events and details about the event. Burton followed up at 11.14am with an email saying he had omitted to ask whether he would be accompanied by a guest. The email trail contained, below the new emails, the previous emails about the event, including a 12 June email inviting people to the event with the subject line “Liberal Party of Australia (NSW Division) - Lawyer’s Branch and Legal Policy Branch”.
Agius’s concern seemed to be about the alleged omission of attachments relating to state donation compliance information. But after the AWU’s lawyer, Herman Borenstein QC, addressed the hearing, Agius spoke again the clarify the point. Agius said he had conferred with one of the counsel assisting the commission, Sarah McNaughton SC.Agius’s concern seemed to be about the alleged omission of attachments relating to state donation compliance information. But after the AWU’s lawyer, Herman Borenstein QC, addressed the hearing, Agius spoke again the clarify the point. Agius said he had conferred with one of the counsel assisting the commission, Sarah McNaughton SC.
Agius said he had been told that the email was part of a chain of emails “and Ms McNaughton tells me ... the way the system effectively works is it drops off any attachments when the email is part of a chain”. Agius said, however, that there were still questions about the matter.Agius said he had been told that the email was part of a chain of emails “and Ms McNaughton tells me ... the way the system effectively works is it drops off any attachments when the email is part of a chain”. Agius said, however, that there were still questions about the matter.
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Agius has referred several times to allegations a document released by the commission might have been either a partial disclosure or even “doctored” to remove a reference to state donations. I am trying to track down the relevant details and will update readers shortly.
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Agius refers to Heydon’s “exquisitely experienced” mind and suggests he was aware of the potential conflict of interest when the speech idea was first raised in 2014, and he would not “overlook that very important fact” later.
The fair-minded observer might think that’s fair enough, if that conversation occurred in isolation.
Agius says the 2014 conversation with the organiser was followed up with an email the next day, and then there were several more emails in the past year or so.
It just in our respectful submission may beggar the belief of the fair-minded observer that the commissioner’s recollecation that something might have been overlooked is that reliable...
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Entire inquiry would be 'infected' says CFMEU lawyer
Robert Newlinds SC, for the ACTU, has finished setting out his case. The commission is now hearing from John Agius SC, for the CFMEU.
Agius says with one specific exemption the CFMEU “embrace and support” the submission made by Newlinds. Newlinds had left open the question of “whether you can unscramble the scrambled egg” - presumably, whether the inquiry could proceed in some limited or amended form.
Agius is emphatic that there is no way the commission can continue:
The reason why we do not adopt that part of his submissions is that in our respectful submission, the fair-minded lay observer’s observations in this matter would be such that there would be no part of the inquiry that would be untouched by a finding of a reasonable apprehension of bias. And that once you reach that position, Mr Commissioner, that there is a reasonable apprehension of bias, that there would be no part of the inquiry that could continue which would not be infected by such a finding.
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So what is the legal test that the ACTU is trying to prove?
Its submission sets it out as follows:
The relevant legal test was set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] as follows (footnotes omitted): ...a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial...(emphasis added).
The ACTU says it is a low bar to meet because there is a “double might” test.
Newlinds, summing up his case, tells the commissioner:
Might the fair-minded observer think that you might not bring an impartial mind to the resolution of the issues of the commission in circumstances when he knows that you were at all times prepared to speak at what you knew was a Liberal Party event? He is confused as to why it is that you say you never understood it was a fundraiser because it’s out of kilter of what we would expect of a person with your reputation. That is, it’s blindingly obvious from the emails you were sent. So he is confused about that - not necessarily going to reject you what’ve said but he just finds that perplexing...
He also knows - and this is important, when you look at for guidance, any other cases, I would suggest that’s dangerous because these are quintessentially cases that turn on their own facts, of the extraordinarily highly charmed public political nature of this commission. So he knows this is red hot in political terms, yet he knows that you for a year were quite happy to lend your name to an event of the Liberal Party, albeit for a large part of that time at a time after the commission concluded and that for a significant period this year, you indeed were prepared to speak when the commission was continuing in circumstances where you most definitely knew it was a Liberal Party function.
He also knows that remains your stated position, even though without a shadow of a doubt you now know it’s a Liberal Party function, that is a fundraiser. And in our respectful submission, he would be left in a state of doubt sufficient to think that you might not be able to bring an impartial mind to these highly sensitive matters...
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Newlinds takes issue with Heydon’s explanation that in 2015 he had “overlooked” the Liberal party connection that was made clear in the 2014 email.
Now, without being rude, may I respectfully suggest that overlooked means forgot.
Newlinds also queries Heydon’s claim that he had overlooked the fact that his original agreement to attend the event was conditional on the commission having completed its work.
He says Heydon had “so many opportunities to impose the condition again” but did not.
It doesn’t say why in all the period during that year when you knew it was a Liberal party event you didn’t reimpose the condition.
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Newlinds focuses on the 12 August email from Heydon’s assistant at 9.23am, and the commission’s media statement at 11.22am.
For clarity, I will reproduce both emails here:
This was Heydon’s assistant at 9.23am:
Dear Mr Burton,
I am replying to your email dated 12 August on Mr Heydon’s behalf.
He will not be accompanied to the dinner.
He does not wish to answer any questions after his address.
If there is any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of Royal Commissioner.
Regards,
Barbara
And this was the commission’s media statement at 11.22am, which was sent to reporters after the story about Heydon’s planned attendance was broken by Fairfax Media:
The Commissioner Dyson Heydon will not be delivering the Sir Garfield Barwick address.
As early as 9.23 this morning (and prior to any media enquiry being received) he advised the organisers that “If there was any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the positon of Royal Commissioner.”
Newlinds says it can be inferred that between 9.23 and 11.22, there was a media inquiry received by the commission.
Now, we have made the submission that the hypothetical observer might think that that [11.22 media] statement might be misleading. Because literally of course it’s true, at 9.23 that morning, you had advised the organisers of those words. But read in context, it could be read or thought to be misleading because in fact, when you look at the 9.23 email ... the only sensible reason was you were coming and you were asking Mr Burton to tell you if this was any possibility of the event being described as a Liberal Party event, you wouldn’t be able to come. So the hypothetical observer would think: well, what’s going on? That’s not what he said at 9.23, other than literally. In fact, at 9.23, he made it quite clear to Mr Burton that subject to that matter, he was coming ... so the hypothetical observer is confused, perhaps even confounded.
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Newlinds refers the 12 August email from Heydon’s assistant to Burton saying he will be unable to give the address “if there is any possibility (and those words are in bold) that the event could be described as a Liberal party event”:
Now, I think we’ve used the word bewildered in relation to the reasonable bystander’s state of mind at this point of the chronology, because obviously, the event could be described as a Liberal party event.
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You can read the full email trail here:
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Newlinds offers some praise for Heydon, but notes his ability to absorb detail and distil and retain facts:
We know that you’re the Honourable Dyson Heydon ... and we know that you have particular skills as a lawyer and as a judge and for that matter as an academic, and we know that you’re a man with a reputation for having a razor sharp mind - to use another clinche a mind like a steel trap.
Newlinds suggests that is why the reasonable hypothetical bystander is going to think Heydon had read the relevant email.
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Newlinds continues to explore the email trail between Heydon and Burton, the organiser of the Sir Garfield Barwick address. There is a back-and-forth over the proposed content of the speech. Newlinds focuses on a 12 June email.
There’s a number of things to notice about this document, which we think the reasonable bystander would assume that you would’ve read and understood. Firstly, the subject line of the email is “Liberal Party of Australia (NSW Division) – Lawyers Branch and Legal Policy Branch”...
Newlinds notes the attachements were described as “Invitation – August 2015 (1).docx; State Donation Compliance.docx”.
It is, we would respectfully suggest, clear enough to the reasonable bystander that you would’ve understood from reading this email that this was a function of the Liberal party and there was going to be some form of fundraiser because there was donation compliance forms involved.
Newlinds says the hypothetical observer would think he had read the email. (Heydon said on Monday that he had not read the attachments.)