Heydon and his debacle

Like Earl Warren, Dyson Heydon will come to regret accepting a government commission ... Sufficient evidence to support a legal finding of apprehended bias ... Sydney lawyer Graham Hryce teases out Heydon's curious reasoning 

Warren: persuaded by Johnson to do something he regretted

IN the immediate aftermath of the assassination of President John Kennedy in 1963, President Lyndon Johnson asked the Chief Justice of the United States Supreme Court, Earl Warren, to head the official investigation into Kennedy's death.

Warren was a former Republican whose judicial abilities were well regarded, and Johnson wanted a bipartisan chairman of integrity to give the investigation credibility.

Warren initially refused the appointment. Johnson, however, persuaded Warren to change his mind and the Warren Commission was established.

In September 1964 Warren delivered the commission's report to Johnson. Within a few years, however, the defects of the report - most of which flowed from Warren's errors of judgment - had become apparent and Warren's reputation as a jurist suffered irreparable harm.

Dyson Heydon finds himself in a similar position to Earl Warren.

The entire Heydon affair has been characterised by poor judgment on the part of the participants. Abbott showed poor judgment in appointing an eminent jurist without trial or industrial relations experience. Heydon showed poor judgment in accepting the appointment; in attempting to keep open the possibility of delivering the Barwick lecture; in mishandling the disclosure of relevant documents; and now, most importantly, in declining to recuse himself on the grounds of apprehended bias.

Heydon: reasoning uncompelling

The unions will no doubt appeal today's decision and this will drag the affair on interminably - causing further damage to the royal commission and Heydon's reputation. The High Court will now sit in judgment on his actions.

To date the royal commission has done a great deal of valuable work in exposing trade union corruption. It is important that it be allowed to continue that work without further controversy and delay. If Heydon had stood down the commission could have got on with its job under a new commissioner without significant delay. That is now not possible.

Heydon's defenders, both political and legal, have done him few favours. The Barwick lecture was clearly a Liberal Party fundraiser and it was risible for Liberal politicians to pretend otherwise. False analogies drawn by the prime minister with former High Court judges Michael McHugh and Michael Kirby are not to the point. The repeated references to Heydon's integrity are likewise misplaced, as are unwarranted criticisms of the NSW Bar Association by some of his supporters.

In fact, Heydon's defenders have made his position worse than it otherwise would have been.

The unpalatable fact is that there is sufficient evidence to support a legal finding of apprehended bias. Legal minds may differ on the ultimate outcome, but to suggest that, on the facts, there was not a problem is fanciful.

In fairness to Heydon, in finally refusing the invitation to deliver the Barwick lecture he accepted that there was a problem. So too did counsel assisting the royal commission, as did the organisers of the Barwick lecture.

Yet, in his reasons, Heydon backs away from these implicit admissions.

Furthermore, there are a number of curious aspects to Heydon's reasoning. For example, he finds "it is notorious among the legal profession that I am incapable of sending or receiving emails".

How could the fair minded observer (who is not a lawyer) know this? Heydon also refers to the fact that Murray Gleeson, the former chief justice of the High Court, delivered a Barwick lecture. But, Gleeson did not do so whilst heading a royal commission into the trade union movement.

More fundamentally, the fair minded observer is not obliged to accept the exculpatory statements of the impugned judicial officer or official.

In such circumstances, it becomes politically untenable for Heydon to continue in the role of royal commissioner and for the royal commission to continue under his leadership.

Heydon should have gone, but resolutely decided not to do so. As a matter of law this decision was open (although Heydon's reasoning is not compelling). Politically it was unwise and only adverse consequences can flow for Tony Abbott, the royal commission and Heydon's reputation.

Earl Warren came to bitterly regret accepting President Johnson's invitation to head the Warren Commission. Dyson Heydon may similarly come to regret having agreed to head the Royal Commission into Trade Union Governance and Corruption and not stepping down. And Tony Abbott may come to regret having appointed him.