In the jargon of the moment, Dyson Heydon – the royal commissioner who has been putting trade union officials and Opposition Leader Bill Shorten on the spot – finds himself struggling with the sniff test.
Heydon on Monday released the email trail of the invitation he received to deliver the Garfield Barwick address, and made a statement at the commission. But the correspondence harmed more than assisted his defence of his now-abandoned intention to give the lecture, which is sponsored by the Liberal Party’s lawyers’ branches.
The crux of Heydon’s argument against a barrage of criticism is that he “overlooked” the matter of sponsorship and timing.
The story starts when, after some informal discussions “several years ago”, he was invited in April last year to give the lecture in August this year. An email from Gregory Burton, the chair of one of the lawyers’ branches of the NSW Liberal Party, thanked Heydon for his indication that he would be amenable to delivering the lecture “if the commission has completed”.
Burton made the position clear. “Although we are formally a branch of the party, our aim is to be a liberal-minded "bridge” to the profession rather than overtly party political (although we trust we show the party in a favourable light!),“ he wrote.
Heydon confirmed to Burton – whom he has known very well for years – that he could deliver the address.
In his Monday statement, Heydon noted that at that time the commission was due to finish at the end of 2014. Nor did he think the function was a Liberal Party fundraiser – which on any ordinary meaning it was not, because the charge to attendees covers little more than costs.
In March this year, when Heydon was at Oxford, there was correspondence about dates and topic.
Heydon told the commission on Monday: "I receive many invitations to speak at public functions. When I received the contact by email from the coordinator, I remembered that I had agreed to give the Garfield Barwick address in August 2015.
"However, in March 2015, I overlooked the connection between the person or persons organising the event and the Liberal Party which had been stated in the email of 10 April 2014.
"I also overlooked the fact that my agreement to speak at that time had been conditional on the work of the commission being completed before that time.” The reporting date had been extended in October 2014 to the end of this year.
April saw more correspondence about the date and subject. Heydon said he had entered the event in his diary.
In June, Heydon was sent the invitation for guests – it was complete with Liberal logo, a request for a donation from those not able to attend, and the information that proceeds would be applied to state election campaigning.
Heydon said this, amounting to three pages, was attached to the one-page email.
The email, from Burton, had the subject line: “FW: Liberal Party of Australia (NSW Division) – Lawyers’ Branch and Legal Policy Branch”.
“My personal assistant printed out a copy of the email and the attachments and provided them to me.
"I glanced through the email noting the date, time and place of the dinner. I did not read the attachments.”
Heydon started preparing some rough notes for his speech.
On August 12, Heydon was sent another email, which also enclosed the invitation “for your reference”.
Burton wrote: “As you know, although nominally under the auspices of the Liberal Party lawyers’ professional branches, this is not a fundraiser…”
“In the absence of hearing from you we have proceeded on the basis you are happy to go ahead even though the commission is still in hearing (not expected when originally arranged) and thought it presumptuous to do other than leave that up to you. If however a problem emerges at the last moment then people will I’m sure understand.”
It was almost as though Burton was giving a warning – did the commissioner know what he was doing?
The following morning at 9.23 – and, Heydon says, before media inquiries – the commissioner’s assistant sent an email to Burton saying: “If there is any possibility that the event could be described as a Liberal Party event he will be unable to give the address.”
Meanwhile, just after this, Fairfax published a story about Hayden’s delivering the lecture.
“Soon after the dispatch of that email, it was made plain that I would not be giving the address. My understanding at all times has been that the dinner was not to be a fundraiser.”
All through, Heydon was fully informed about the Liberal connections of the function, as his commenting about understanding “at all times” that it was not a fundraiser reinforces.
That, in March, Heydon “overlooked” both the Liberal connections and that the commission would still be going would be more excusable if he hadn’t been holding a string of witnesses – including two Labor leaders – to account on details that stretch back many years.
And as for not reading the attachments in June, it was quickly pointed out that such an excuse hasn’t washed when used in the royal commission.
One would have thought Heydon would have remembered, albeit vaguely, from the early correspondence that the lecture was Liberal-sponsored, and then would have applied abundant caution and examined the details. He is supposed to be a stickler for detail; he has had a career of experience in the importance of the appearance of neutrality.
The idea that somehow the NSW Liberals are to blame for inviting Heydon seems to me ludicrous. He is a former High Court judge – he should not have needed to be saved from himself.
Now the situation is a shambles. The ACTU is deciding whether to apply for Heydon’s disqualification from the commission on the ground of “apprehended bias”. If it does, he would hear the matter on Friday. The issue could end up in the Federal Court.
Heydon set out the doctrine of apprehended bias several years ago. In the joint judgment of Justices Heydon, Kiefel and Bell, in British American Tobacco Australia Services Limited v Laurie in 2011, their honours 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.
If he remains commissioner, Heydon’s findings will carry a heavy discount factor. That will particularly apply to anything in the political arena, notably about Shorten.
If Heydon quits or is forced out, the government either tries to patch up the commission or lets it lapse.
While it could continue under another commissioner, that would mean rehearing controversial evidence, because those receiving adverse findings could argue against them on the grounds they were based on hearings before the first commissioner but delivered by his replacement.