Trade Union Royal Commission: Dyson Heydon stays on as Commissioner

Dyson Heydon arrives at the royal commission on Monday morning ahead of delivering his decision. Photo: Ben Rushton Australian Council of Trade Unions president Dave Oliver speaks to the media after the decision. Photo: Dominic Lorrimer

Heydon shows why judges really are a breed apartAttending Liberal event does not mean I back Liberals: Heydon

Dyson Heydon has ruled he will continue as the head of the royal commission into trade unions despite being accused of bias for agreeing to appear at a Liberal Party fundraiser.

In a short hearing on Monday, Mr Heydon dismissed an application by unions to have him removed as commission chair after he accepted an invitation to speak at the Sir Garfield Barwick Address.

“I have considered all the submissions. In my opinion, the applications must be dismissed. I publish my reasons,” Mr Heydon said at the end of the five minute hearing.

In the 67-page judgement of his reasons, Mr Heydon ruled “it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind” to the inquiry.

He rejected the unions’ submission that the Sir Garfield Barwick address was a “Liberal Party event”, saying the “mere fact that  a person agrees to deliver a speech at a forum does not rationally establish that the person is sympathetic to, or endorses the views of, the organiser of the forum”.

The government welcomed the decision but unions said they would be reading the judgment carefully before announcing whether they would appeal.

Mr Heydon was forced to consider his position after Fairfax Media revealed he was listed as a guest speaker at the Sir Garfield Barwick Address, a Liberal Party fundraiser.

The commissioner withdrew from the event but unions said his acceptance of the invitation gave the appearance of a political allegiance – with the commissioner himself left to make the ruling on whether it was a case of apprehended bias.

He had first been due to make a ruling last Tuesday, which he delayed until last Friday.

That date was again pushed back to Monday after fresh claims emerged Mr Heydon only withdrew from the event after he was alerted to possible media interest by counsel assisting the royal commission, Jeremy Stoljar SC.

Mr Heydon told the commission on Monday he had received three sets of written submissions on Friday afternoon – one from the CFMEU, one from the ACTU and one from the AWU.

But he had determined the application should be dismissed.

In his reasons, Mr Heydon noted he only read emails printed out by his personal assistant and in this case, he did not read attachments about Sir Garfield Barwick address.

Responding to the decision, Attorney-General George Brandis said the government was pleased.

“I’m not at all surprised by this decision, it’s a decision that I was privately expecting because the case for apprehended bias, applying the appropriate legal tests is so thin,” Senator Brandis told Sky News.

He said it would difficult “for anyone reasonably to conclude that he was biased to the Liberal Party” when Mr Heydon said he had withdrawn from the event as soon as he was aware it was a fundraiser.

“One of the reasons I recommended to the Prime Minister that we appoint Dyson Heydon to conduct this royal commission is that you could always foresee that the Labor Party and the union movement would throw everything at this person because they had so much to lose by the corruption in the union movement being exposed,” Senator Brandis said.

“Therefore I wanted someone whose reputation was so strong, whose integrity was so beyond question that he would withstand all the mud that has been flung at him by the Labor Party, the union movement and its surrogates in the parliamentary Labor Party.”

But ACTU secretary Dave Oliver said the royal commission’s reputation was now “terminally tarnished” as a result of Monday’s ruling.

“Despite the decision today of Dyson Heydon, the reality is that this royal commission is now terminally tarnished,” Mr Oliver said.

“Any recommendation out of this can’t be taken seriously in respect of looking at it for the political nature of this commission.”

He said unions would consider and read the judgment before deciding whether to appeal the decision in the Federal Court but renewed calls for Mr Abbott to shut the commission down.

“We have only just received it. We will need to talk to our legal counsel and we will engage with our affiliates and make an announcement in due course.”

“Look, the fact is he [Mr Heydon] has had to sit in judgment of himself. I am sure there are many people sitting in pubs at the moment or sitting at home watching this [thinking] “How does that work? Does that pass the sniff test?”. Speaker invite

New documents were released on Thursday after a fresh request by unions, with an email showing Mr Stoljar was asked on August 12 by Chris Winslow, the publications manager for the NSW Bar Association, if Mr Heydon was aware the Sir Garfield Barwick Address was a Liberal Party fundraiser.

The commission also released a note from Mr Stoljar’s diary which showed that he had raised this with Mr Heydon on August 13 and Mr Heydon had shown him an email from the event organiser Greg Burton in which he said the lecture was not a fundraiser.

Unions have demanded to know why the documents were not released two weeks ago when they made their first application for information.

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