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| What would an ordinary hypothetical person think of Dyson Heydon? | What would an ordinary hypothetical person think of Dyson Heydon? |
| (35 minutes later) | |
| Dyson Heydon says he “overlooked” the fact that his address to the Garfield Barwick dinner was a Liberal party event. | Dyson Heydon says he “overlooked” the fact that his address to the Garfield Barwick dinner was a Liberal party event. |
| Related: Dyson Heydon likely to make decision on royal commission role by Tuesday | Related: Dyson Heydon likely to make decision on royal commission role by Tuesday |
| Now that he has before him an application from the Australian Council of Trade Unions to disqualify himself from sitting as the royal commissioner into trade union governance and corruption, he has to put himself in the position of the reasonable hypothetical bystander, who theoretically is the judge of an apprehension of bias. | Now that he has before him an application from the Australian Council of Trade Unions to disqualify himself from sitting as the royal commissioner into trade union governance and corruption, he has to put himself in the position of the reasonable hypothetical bystander, who theoretically is the judge of an apprehension of bias. |
| So, what would Dyson Heydon think this ordinary hypothetical person thinks of Dyson Heydon? | |
| He might well arrive at a conclusion that his explanation of “overlooking” the invitation’s connection with the Liberal party should be accepted because, after all, commissioner Heydon is a former high court judge of good character and reputation. | He might well arrive at a conclusion that his explanation of “overlooking” the invitation’s connection with the Liberal party should be accepted because, after all, commissioner Heydon is a former high court judge of good character and reputation. |
| There is some interesting context to consider here, because when Julia Gillard’s lawyers submitted that the former prime minister’s “good character and reputation” should be considered when weighing her evidence against the conflicting evidence of two other witnesses, that submission was firmly rejected by Heydon, who said: | There is some interesting context to consider here, because when Julia Gillard’s lawyers submitted that the former prime minister’s “good character and reputation” should be considered when weighing her evidence against the conflicting evidence of two other witnesses, that submission was firmly rejected by Heydon, who said: |
| This is a mystifying submission. It is a dangerous submission. And, if it were correct, it would be a very troubling submission. | This is a mystifying submission. It is a dangerous submission. And, if it were correct, it would be a very troubling submission. |
| The commissioner said the list of high-powered positions Gillard held over the years did not of itself give further information about her reputation and character, particularly as against that of other witnesses. He went on: | The commissioner said the list of high-powered positions Gillard held over the years did not of itself give further information about her reputation and character, particularly as against that of other witnesses. He went on: |
| If some such presumption were adopted, it would always be the case that the powerful, the celebrated and the successful will have undue advantages over the weak, the obscure and those of moderate achievement. Then would be the time to ask the question: ‘Little man, what now?’ It is a strange submission to be advanced on behalf of a former politician belonging to the Australian Labor party tradition – a tradition of social democracy. | If some such presumption were adopted, it would always be the case that the powerful, the celebrated and the successful will have undue advantages over the weak, the obscure and those of moderate achievement. Then would be the time to ask the question: ‘Little man, what now?’ It is a strange submission to be advanced on behalf of a former politician belonging to the Australian Labor party tradition – a tradition of social democracy. |
| Dyson Heydon comes from no such tradition, yet implicit in his claim that he “overlooked” the fact that a Liberal party branch invited him to deliver the Garfield Barwick address is that we, or at least the reasonably hypothetical bystander, would understand he is of good character and reputation. | Dyson Heydon comes from no such tradition, yet implicit in his claim that he “overlooked” the fact that a Liberal party branch invited him to deliver the Garfield Barwick address is that we, or at least the reasonably hypothetical bystander, would understand he is of good character and reputation. |
| What else has the bystander to go on, other than that he is “powerful, celebrated and successful”? Good enough for Dyson. Not good enough for Julia. | What else has the bystander to go on, other than that he is “powerful, celebrated and successful”? Good enough for Dyson. Not good enough for Julia. |
| Memorably, Heydon found that Gillard’s main offence in relation to her role as a solicitor in the creation of an Australian Workers Union slush fund was a “lapse of professional judgment, but nothing more sinister”. Nonetheless, he went on to complain about her skill as a witnesses and her “immense determination to vindicate her position”. | Memorably, Heydon found that Gillard’s main offence in relation to her role as a solicitor in the creation of an Australian Workers Union slush fund was a “lapse of professional judgment, but nothing more sinister”. Nonetheless, he went on to complain about her skill as a witnesses and her “immense determination to vindicate her position”. |
| The key parts of her evidence were the product of many months, in a sense nearly 20 years, of thought about the issues - the product, too, of iron willpower which drove her very able mind into the most intense and thorough preparation. All this - her intense degree of preparation, her familiarity with the materials, her acuteness, her powerful instinct for self-preservation – made it hard to judge her credibility. | The key parts of her evidence were the product of many months, in a sense nearly 20 years, of thought about the issues - the product, too, of iron willpower which drove her very able mind into the most intense and thorough preparation. All this - her intense degree of preparation, her familiarity with the materials, her acuteness, her powerful instinct for self-preservation – made it hard to judge her credibility. |
| He again picked up the issue of “credibility” when Bill Shorten was in the commission’s witness box last month, saying to the leader of the opposition: | He again picked up the issue of “credibility” when Bill Shorten was in the commission’s witness box last month, saying to the leader of the opposition: |
| What I am concerned about more is your credibility as a witness and perhaps your self interest as well. A witness who answers each question ‘Yes’ or ‘No, ‘I don’t remember’, or clarified the question and so on, gives the cross-examiner very little material to work with. It is in your interests to curb these, to some extent, extraneous answers. Mr Stoljar [counsel assisting] has a plan. Plans may succeed or they may fail but he is entitled to pursue it. | |
| For Gillard and Shorten the implicit message is: it’s inconvenient if, as witnesses, you’re thoroughly prepared or you’re not giving Jeremy Stoljar enough rope with which to hang you. | |
| Observers, whether hypothetically reasonable or not, might think that is an extraordinary complaint to make or to say about witnesses – please don’t mess with our “plan”. | Observers, whether hypothetically reasonable or not, might think that is an extraordinary complaint to make or to say about witnesses – please don’t mess with our “plan”. |
| Last week’s focus was on the released emails between Heydon and the organisers of the Liberal party dinner and fundraiser, plus the legal case for recusal. There are other aspects that should be considered too. | Last week’s focus was on the released emails between Heydon and the organisers of the Liberal party dinner and fundraiser, plus the legal case for recusal. There are other aspects that should be considered too. |
| The public finds it curious that judges or commissioners of inquiry sit in their own cause when it comes to determining applications for recusal or disqualification on the ground of apprehended bias. | The public finds it curious that judges or commissioners of inquiry sit in their own cause when it comes to determining applications for recusal or disqualification on the ground of apprehended bias. |
| However, there’s an important qualification, which to some extent ameliorates the difficulty we have getting our heads around judges, or quasi-judicial officers, putting themselves in the position of hypothetical reasonable people and then determining whether those people have an apprehension of their bias. | However, there’s an important qualification, which to some extent ameliorates the difficulty we have getting our heads around judges, or quasi-judicial officers, putting themselves in the position of hypothetical reasonable people and then determining whether those people have an apprehension of their bias. |
| Any decision made by a judge or commissioner in these cases is able to be appealed. Here, the Constitution gives the high court in its original jurisdiction power to prohibit, make directions to, or injunct an officer of the Commonwealth. Dyson Heydon, in his current role, is most certainly an officer of the Commonwealth. | Any decision made by a judge or commissioner in these cases is able to be appealed. Here, the Constitution gives the high court in its original jurisdiction power to prohibit, make directions to, or injunct an officer of the Commonwealth. Dyson Heydon, in his current role, is most certainly an officer of the Commonwealth. |
| In other words, if the commissioner’s decision on Tuesday is to stay put, the unions’ next step could well be an application directly to the high court, under section 72 of the Constitution. | In other words, if the commissioner’s decision on Tuesday is to stay put, the unions’ next step could well be an application directly to the high court, under section 72 of the Constitution. |
| I imagine that consideration would be in commissioner’s mind as he considers his verdict. Heydon might think it better to disqualify himself rather than for his former colleagues on the high court to do it for him. | I imagine that consideration would be in commissioner’s mind as he considers his verdict. Heydon might think it better to disqualify himself rather than for his former colleagues on the high court to do it for him. |
| Then again, like Justice Antonin Scalia of the US supreme court, in the famous duck-shooting-with-Dick-Cheney recusal case, he might think he is so rock solid with his reasoning that an appeal was out of the question. | Then again, like Justice Antonin Scalia of the US supreme court, in the famous duck-shooting-with-Dick-Cheney recusal case, he might think he is so rock solid with his reasoning that an appeal was out of the question. |
| Heydon was such a standout minority judge when serving on the high court that it is not entirely beyond the bounds of possibility that there could be different views as to this reasoning on this question, as there was on many others. | |
| Certainly, his failure to explain gaps in his thought process – between accepting the invitation in April 2014 and rejecting it moments before the media broke the story this month – might suggest a consciousness of apprehension. | Certainly, his failure to explain gaps in his thought process – between accepting the invitation in April 2014 and rejecting it moments before the media broke the story this month – might suggest a consciousness of apprehension. |
| This was something Robert Newlinds, senior counsel for the ACTU, pressed firmly on Friday. What happened between 9.23am on Thursday, 13 August and 11.22am the same day? | This was something Robert Newlinds, senior counsel for the ACTU, pressed firmly on Friday. What happened between 9.23am on Thursday, 13 August and 11.22am the same day? |
| At 9.23am, Heydon’s personal assistant Barbara Price told the organiser Gregory Burton that he would be coming to the dinner, but didn’t wish to answer questions, and that if there was “any possibility” the event could be described as a Liberal party event, then he would not be able to give the address. | At 9.23am, Heydon’s personal assistant Barbara Price told the organiser Gregory Burton that he would be coming to the dinner, but didn’t wish to answer questions, and that if there was “any possibility” the event could be described as a Liberal party event, then he would not be able to give the address. |
| Related: The sometimes enjoyable mind of Dyson Heydon | Richard Ackland | Related: The sometimes enjoyable mind of Dyson Heydon | Richard Ackland |
| This is despite the fact, that he knew for 16 months that it was a Liberal party occasion. Indeed, the Liberal party connection was mentioned 13 times in emails that flowed into Heydon’s computer, and that’s not including the attachments. | This is despite the fact, that he knew for 16 months that it was a Liberal party occasion. Indeed, the Liberal party connection was mentioned 13 times in emails that flowed into Heydon’s computer, and that’s not including the attachments. |
| Two hours after the 9.23am email the commission notifies the world that he’s pulling out of the dinner and the address. Only the the day before he had been reminded, again, it was a Liberal party branch dinner. | Two hours after the 9.23am email the commission notifies the world that he’s pulling out of the dinner and the address. Only the the day before he had been reminded, again, it was a Liberal party branch dinner. |
| At this stage, with the current state of available information, the hypothetical ordinary reasonable person is likely to be utterly “bewildered” |
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