Trade Union Royal Commission: Dyson Heydon shows why judges really are a breed apart

Dyson Heydon will remain as the head of the royal commission into trade union corruption. Photo: Ben RushtonUnions weigh appeal as Labor shifts attack to ParliamentAddressing Lib fundraiser does not mean supporting Libs: HeydonComment: Heydon saves his own skinAnalysis: Heydon finds ‘fatal’ flaw in unions’ argument
杭州龙凤

A welter of evidence clearly establishing a widespread public perception of bias on the part of the royal commissioner into trade union corruption has been brushed off as irrelevant by the highest legal authority charged with assessing it: the royal commissioner himself.

In finding that the evidence tendered by unions amounted to insufficient weight to justify his own recusal, Heydon has confused his own subjective self-assessment with a more objective public understanding of his impartiality, giving more weight to the former than the latter.

In part this is driven by a calculation – shared by the government as it happens – that much of the “outrage” against him is transparently political and self-serving. Further, that the claims of apprehended bias derived from opportunistic outrage by persons primarily concerned with discrediting him, undermining his inquiry, and thereby avoiding further scrutiny of their own questionable actions.

This is undoubtedly correct, inasmuch as some parties are concerned, but the question mark hanging over the royal commissioner’s impartiality remains and, despite his determination to continue, is not limited to unionists, dodgy or otherwise.

Heydon’s verdict was to some extent inevitable. When a judge is asked to rule on his or her self – especially on questions of impartiality – disentangling the personal from the public, the subjective from the objective, is difficult. It is itself a conflict of interest.

But that’s the job.

Heydon may well be completely unbiased and may well have brought to this politically super-charged inquiry a completely impartial and unprejudiced mind.

But self-evidently, many people do not think so.

In any event, Heydon appears to have sloughed off his own admirably economical direction in another case, that being British American Tobacco Australia Services Limited v Laurie of February 2010, where he said: “It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification … Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.”

Prima facie, the retention of the royal commissioner is a win for the Abbott government. Heydon’s departure in ignominious circumstances would have de-spurred a process which is central to the political architecture of the Coalition’s re-election.

Yet it has also served to deepen public suspicion that its aims were always partisan – and that the $60 million-plus allocated is a vast sum of public funds directed to a political cause deemed advantageous to the incumbent government.

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