Saturday, 2 January 2016

So who is 'Mr. Apprehended Bias 2015' and what makes him tick?

Former High Court justice John Dyson Heydon AC QC presided over the federal Royal Commission into Trade Union Governance and Corruption. 

This commission was in existence for six hundred and sixty-five days from 13 March 2014 to 28 December 2015 and, there were a total of one hundred and eighty-nine hearings days in the capital cities of five states.

The cost to taxpayers was reported as in excess of $45.9 million. Heydon's own contract as a royal commissioner is estimated as worth between $1.5-$2 million of this.

Heydon produced a two volume Interim Report in December 2014 and his Final Report ran to six volumes with thirty-five appendices - the contents of the last approx.187-page volume (allegedly containing verifiable threats to witnesses) being kept secret from the public and only shared with the Coalition prime minister, members of his cabinet and senior staffer/s in the prime minister's office.

Heydon’s “Introduction and Overview” to this final report ran to one hundred and sixteen pages in which he used the qualifying word “may” one hundred and twenty-two times, based on a word check count.

Throughout the report the language used by Heydon was sometimes highly coloured and its pages contain a number of bold assertions that do not appear to be supported by hard fact.

After all that time and money, Heydon made seventy-nine law reform and/or 'political' recommendations, as well as referring two unions, two companies, thirty-five union members and and six other individuals to either the Fair Work Commission, Australian Securities and Investments Commission, state industrial relations commissions, police, public prosecutors, or a number of other federal and state agencies, for further consideration.

With the Australian Bureau of Statistics recording 1.57 million persons who were members of a union in their main job in August 2014, only finding thirty-seven 'suspect' unionists (or 0.00235% of est. union population) is not what might be called a good look for this very expensive royal commission which examined over five hundred witnesses. Especially as its findings assert the existence of an endemic culture of corruption within unions.

As one of the previous referrals flowing from the royal commission police taskforce resulted in a prosecution which was dropped by the ACT Director of Public Prosecutions in October 2015 with no evidence offered, one wonders how many of those final referrals will also dwindle away into nothing.

This particular royal commission has had distinct overtones of political bias from the very beginning, exacerbated by Heydon’s own unsatisfactorily self-tested apprehended bias.

So what manner of man is Dyson Heydon and how have others viewed him over time?

Commencing In December 2015 and working backwards to 1999, here is a small selection of opinions:

Journalist Damien Murphy in The Sydney Morning Herald article Commissioner Dyson Heydon: A man for all reasons, 30 December 2015:

He joins a short line of judges who have delivered similar decisions against unions such as the defunct Builders Labourers Federation, the Painters and Dockers, and the Construction, Forestry, Mining and Energy Union.

But only Mr Heydon achieved the singular honour of shooting himself in the foot with his own royal commission.

On August 31 this year, he administered the kiss of life to himself to save his own royal commission.

For 18 days he'd been drowning in a whirlpool of his own making. For much of that time Australia had been wondering how the former High Court of Australia justice could save himself and breathe life back into his Royal Commission into Trade Union Governance and Corruption.

It emerged Mr Heydon had agreed in April to deliver the 6th Sir Garfield Barwick Address, a fundraising event organised by a branch of the Liberal Party, and had "overlooked" the political aspect of his dining companions.

The matter bubbled away while Mr Heydon continued to conduct his hearings.

On August 17, Fairfax Media reported that Mr Heydon, a former Rhodes Scholar, was on the panel that awarded then prime minister Tony Abbott his Rhodes scholarship.

Unions went ballistic.

Four days later the ACTU, AWU and CFMEU all made applications in the commission for Mr Heydon to step down.

His opponents saw it as a question of propriety. Mr Heydon, and the government who appointed him, saw it purely in legal terms.

Known as a loner with a love for black letter law, an aversion to computers and an apparent fear of emails, Mr Heydon, 72, served as a justice of the High Court of Australia between 2003-2013 after being a justice of the NSW Court of Appeal.

Previously he'd been dean of the Sydney Law School. He'd retired from the High Court at the constitutionally mandated age of 70 and picked up the trade union royal commission as a retirement gig.

The Sydney Morning Herald, 15 August 2015:

Gabrielle Appleby and Heather Roberts writing in Bias and the ‘black-letter’ judge: who is Dyson Heydon? [The Conversation, 21 August 2015]:

There is no doubt that Heydon was and is a brilliant legal mind, with a very firm grip on the applicable law. His distinguished legal and judicial career is credit to that.

Heydon’s legal brilliance did not guarantee, however, that he was influential while on the High Court. His approach was increasingly out of step with the court’s other members, particularly in the areas of implied rights and limits on government power, which he was reluctant to extend. His dissent rates would eventually earn him the moniker the “Great Dissenter”, and his frustration became increasingly evident in the tone of his judgments.

As a judge, Heydon also exhibited a particularly visible form of independence. Constitutional law academics Andrew Lynch and George Williams have referred to this as his pronounced “individualism”. By 2012, the year prior to his retirement, Heydon wrote every one of his judgments alone, even when he joined the result of the other justices.

Also in 2012, Heydon delivered another speech that caused a stir in the legal profession. It went part of the way to explaining his individualism. He referred to what he thought was one of the most dangerous threats to judicial independence: the pressure on judges to participate in joint judgments and the elevation of consensus as a value over individual intellectual integrity.

There is a degree of sad irony that, as royal commissioner, Heydon has found himself steeped in controversy alleged to be undermining public confidence in the integrity of the justice system. Heydon prided himself throughout his judicial career – and rightly so – on the robust independence and intellectual integrity he brought to the role.

It is important to be clear that the claim made against Heydon is one of apprehended bias only. The test for apprehended bias is whether a “fair-minded lay observer” might reasonably apprehend that Heydon’s impartiality has been compromised by his conduct.

It might seem incongruous for a member of the general public to understand why Heydon is being asked to apply the test to himself. There is a whiff of apprehended bias in the very idea.

It is true that this practice accords with the ordinary legal process for apprehended bias claims. A person against whom an apprehended bias claim is made is expected to apply the test objectively by reference to the standards of the fair-minded lay observer. According to a traditional black-letter approach, the individual’s personal feelings will simply not enter the decision.

But can, as Heydon has argued throughout his judicial career, legal tests really be objectively applied by reference only to the law in the books – and unaffected, consciously or subconsciously, by the individual judges’ background, interest, values and morals? This question has given rise to some of the great ongoing debates of legal philosophy.

Excerpts from the pen of Allan C. Hutchinson in "Heydon' Seek: Looking for Law in the Wrong Places" [2003, Monash University Law Review 85]:

As already should be clear, I am sceptical about the possibility of there being a definitive and cogent account of the common law's operation in line with traditional claims and ambitions. Nevertheless, I was excited to be told on my arrival in Australia that there was a recent paper that attempted to do just that. I eagerly obtained this essay by a former academic and now Justice of the Australian High Court, Dyson Heydon. The title of his paper, Judicial Activism and The Death of The Rule of Law, should have immediately tipped me off to what was to follow.' Still, knowing little of Heydon personally or professionally and knowing almost as little about Australian recent judicial history, I set to reading the written version of his speech to the Quadrant Dinner in October 2002. The author was clearly a polished and sophisticated fellow who peppered his talk with witty asides and sprightly anecdotes. Yet, beneath the gloss and erudition, the paper offered a very radical and almost anachronistic account of the common law. Indeed, my first reaction was to think that the date on the paper must be wrong as it read like something from 1902 rather than 2002. Heydon offered a rendition of the Rule of Law and the common law that was as fundamentalist in its formalism as any I could remember reading in any century, let alone the 21st century. For Heydon, judges can only fulfil their judicial duties by scrupulously attending to the law's formal structure alone: almost any consideration of the law's moral or political content is anathema. While I would normally recommend that such an audacious and frankly improbable proposal be ignored, the fact that it is espoused by the most recent appointee to the High Court means that it warrants serious debunking and outright rejection…..

In his incendiary jurisprudential intervention, Dyson Heydon makes it clear from the outset that the whole project of modern jurisprudence is mistaken and a betrayal of the common law tradition. Identifying proudly and explicitly with 'hanging judges' of yore, he idolises 'that evil old man in scarlet robe and horse hair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and ... is a symbol of the strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape'.  This is stirring and disturbing stuff. Heydon leaves no doubt that '[interpretation of] the law according to the books must be scrupulously adhered to by judges as this is the most effective 'bar to untrammelled discretionary power? Depicting judges as wild ideological animals who, if left unharnessed, will wreak political mayhem on an unsuspecting public, he offers an ideal judge who is 'an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power'.  This means that so powerful and reliable is 'the disinterested application ... of known law drawn from existing and discoverable legal sources independently of the personal beliefs of the judgeI6 that it can hold in check herds of rogue officials. Moreover, so tamed and tethered, these institutional pets can be trusted to have supreme power in the polity….

For Heydon, the recent history of Australian common law is a morality play in which the dark hordes of judicial activism have begun to eclipse the established forces of legal enlightenment. Rallying the judicial troops around a battle-cry of 'Back To The Future', he urges that time is well past to repel such interlopers and to return the common law to its traditional grandeur. Unless swift action is taken, the common law is destined to be sullied by those 'using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case'? In this scenario, the initial assault of the dark activists forces can be traced back to the 1970s and the villains of the piece are Anthony Mason and Lionel Murphy. Inveigling their way in to high judicial office, these usurpers professed allegiance to the common law, but only better to hijack it for their own political purposes. With some wit and savvy, these ne'erdo-wells began to abandon the orthodoxies of the common law and replace it with new credos of their own design: 'the soignt, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary - our new philosopher-kings and enlightened despots - are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude ... ought to hold even though they do not'." Presumably aided by a duped band of other High Court judges, the terrible two set about abandoning old tried-and-true rules and replacing them with newfangled and controversial doctrines which were little more than rough distillations of their own political agendas. Indeed, if Heydon is to be believed, Australian common law is quickly going to political hell in a judicial handcart. It is only with a return to traditional legal values and judicial methods that such an ignominious fate can be avoided…..

From the Strewth column in The Australian, 20 December 2002:

DYSON Heydon may have snared a prized position on the High Court following his controversial speech contra judicial activism. He appears, however, to have peeved a few of the blokes he pinged in the diatribe that some suggest was pivotal to his appointment. Strewth hears former chief justices, and knights of the realm, Gerard Brennan and Anthony Mason, will not be attending Heydon's swearing-in when Mary Gaudron, pictured, retires in February. In the fraternity that is the old boys' association of the High Court it is customary for all manner of former judicial officers, friends, relatives and other hangers-on to front for the boys' own initiation ceremony. So the absence of the two immediate past chief justices will be conspicuous. Heydon made some fairly pointed personal remarks about the Mason-era court of 1987-95, and did a demolition job on the 1992 Mabo case in which Brennan wrote the lead judgment. Yesterday Mason refused to comment on Heydon's attack on him, or whether he would attend the swearing-in, and Brennan's chambers also delivered a firm "no comment". Gezza and Tone aren't the only people cheesed off.

Journalist David Solomon writing in The Courier Mail article A law unto themselves, 19 December 2002 issue, p.15:

Heydon is the fourth appointment made by the Howard Government, so its nominees to the bench now constitute a majority of the court. In just three terms in office the Government has been able to put its own stamp on the court, to reverse the more liberal tendencies of the High Court under Chief Justice Sir Anthony Mason (though he was first appointed to the court by the McMahon government in 1972, and some of the appointees of the Hawke or Keating governments were far from radical in their approach to the law).

This Government made no secret of its intention of using its appointments to the High Court to change its jurisprudence. Following the Wik decision in 1996, when the court unexpectedly held that native title could exist in remote areas covered by pastoral leases in Queensland, then deputy prime minister Tim Fischer declared the Government would appoint "three capital-C conservatives" to the court. It did so during the next year. And Dyson Heydon is the fourth.

Journalist Valerie Lawson in The Age article Library speaks volumes for His Honour's passions, 19 December 2002:

John Dyson Heydon can't sleep. It has nothing to do with his appointment as a judge of the High Court. It's a habit of his years at the New South Wales bar.
He tends to begin his day at 3 am, writing judgments, writing books, reviewing military history.
He is not alone in the small hours. The 59-year-old works in the company of Napoleon (a marble bust), the Duke of Wellington (a statue), and a library full of history. He can recount any battle in detail."
His life has been as orderly as his library since the time he swapped his rugby days as "Dirty Dyson" (always covered with mud), to become a professor of law and a barrister….
Married to Pamela for 25 years, and father of Victoria, Christina, Alexandra and Nicholas, Justice Heydon, QC, is the very model of a modern North Shore citizen. He lives at Turramurra, and has a weekender at Robertson, NSW….

Valerie Lawson in The Sydney Morning Herald article Silence on QC's rush to judgment, 11 February 2000 issue, p.7:

The State Government and the legal profession yesterday stonewalled questions on the controversial appointment of Mr Dyson Heydon, QC, to the NSW Court of Appeal.
Neither the Attorney-General, Mr Shaw, nor the Chief Justice, Justice Jim Spigelman, would comment.
But while the legal profession publicly praised Mr Heydon's "eminence" lawyers privately found it peculiar that he will be sworn in on Monday just three months before his own appeal over a $7 million judgment against him is due to be heard by the Court of Appeal.
The question on everyone's lips was: what's the rush?
The State Government and the legal profession yesterday stonewalled questions on the controversial appointment of Mr Dyson Heydon, QC, to the NSW Court of Appeal.
Neither the Attorney-General, Mr Shaw, nor the Chief Justice, Justice Jim Spigelman, would comment.
But while the legal profession publicly praised Mr Heydon's "eminence" lawyers privately found it peculiar that he will be sworn in on Monday just three months before his own appeal over a $7 million judgment against him is due to be heard by the Court of Appeal.
The question on everyone's lips was: what's the rush?

David Marr in The Sydney Morning Herald article Pm Brings Some PantomimeTo A Court's Silent Mark Of Power, 18 May 1999:

Dyson Heydon, QC, arrived in a particularly dilapidated wig. He and a couple of Sydney law firms were ordered last week to pay $21 million damages to the NRMA. The big question at the Sydney Bar these days is: how much was Heydon's cover? As he passed along the lines of his black-robed colleagues, they offered shy pats of reassurance. He barely flinched. *Heydon and the law firms won on appeal on 21 December 2000 at which time he was a Justice in the NSW Court of Appeal* 

Last but not least is Dyson Heydon’s view of many of his fellow judges and of all of us found at the Barnold Law blog, 2 September 2009:

Heydon sniffed in relation to Australian Capital Television v Commonwealth (1992) 177 CLR 106 that 

the soigné, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary – our new philosopher-kings and enlightened despots – are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude – the great beast, as Alexander Hamilton called it – ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people. [my red bolding]

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