By Anna Patty
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- Comment: Heydon saves his own skin
- Analysis: Heydon finds 'fatal' flaw in unions' argument
- Analysis: Heydon shows why judges are a breed apart
Dyson Heydon has refused to step down as head of the royal commission into trade union corruption because the Liberal Party event he agreed to address was a "legal event" in nature.
The former High Court judge, who was hand-picked by Prime Minister Tony Abbott to run the commission, said that "in my opinion the applications" for his recusal "must be dismissed".
Mr Heydon said the Sir Garfield Barwick Address was a legal event in memory of Australia's longest serving High Court chief justice.
He said it could not be rationally argued that a person giving a legal address at such an event believes in or supports Liberal Party politics.
Royal commissioner Dyson Heydon has released his final report.Credit: Ben Rushton
"The mere fact that a person agrees to deliver a speech at a particular forum does not rationally establish that the person is sympathetic to, or endorses the views of, the organiser of that forum," Mr Heydon said in his decision.
Unions had not "demonstrated, as distinct from merely asserting, how any such predisposition, even if it might be apparent to the fair-minded observer, was logically connected to the actual issues for determination in the commission".
The unions had also "failed to establish that the fair-minded observer might reasonably conclude that I could not deal with the issues for resolution on their merits".
Mr Heydon said a reasonable bystander would be likely to think that a person with a legal background would have the capacity to go to the point of an email and be "scrupulous" in reading emails.
But because the email did not relate to commission business but to a possible outside activity, "there was no point in my looking at it".
The contention that he had read the email containing the invitation to the Liberal Party event was "fanciful".
"Having glanced through the email on the front page, noting the time, date and place of the dinner, and noting that I was to be the guest of the organisers, it was not necessary for me to read the attachments explaining how those who were to pay would pay," Mr Heydon said.
"That subject was of no concern to me. Further, the fair-minded observer would recognise that I was busily engaged in [royal commission] work.
"Indeed, it is notorious among the legal profession that I am incapable of sending or receiving emails. The consequence is that I read emails only after they have been printed out for me."
A resolution of the question as to whether he should step aside as commissioner had been delayed twice since unions lodged an application 10 days ago for Mr Heydon to disqualify himself from the politically charged inquiry.
The Australian Council of Trade Unions argued that he should recuse himself because of a perception of bias after he agreed in April last year to give the keynote address at a Liberal Party event.
Unions said Mr Heydon's acceptance of the invitation to speak at the Sir Garfield Barwick Address suggested an appearance of bias in presiding over the royal commission. The unions claim he only withdrew from the event after being warned of possible media interest by counsel assisting the royal commission Jeremy Stoljar, SC.
Sir Garfield was also a Liberal MP.
Mr Heydon said the unions had not established that he knew the event was associated with the Liberal Party or that it was a Liberal Party fundraiser.
References in the email headers that the event was associated with the Liberal Party were also dismissed because they did not establish the nature of the address as a Liberal event or a fundraiser.
Mr Heydon's final decision to cancel his appearance at the event did not necessarily suggest that his attendance would have given rise to an apprehension of bias.
"Sometimes a decision-maker chooses not to do something, not because to do it will give rise to a reasonable apprehension of bias, but because the decision-maker for sensible reasons of risk management and self-preservation wishes to avoid the attacks of the suspicious and the malicious," he said.
"That is the construction a fair-minded observer would put on the matter."
Federal Attorney-General George Brandis described the reasoning in Mr Heydon's decision as "a tour de force in its explanation".
The ACTU will now consult with its affiliates to decide whether it will try to challenge Mr Heydon's decision in the Federal Court.
But ACTU secretary Dave Oliver said he did not yet know what its next step would be. Unions would likely wait for the outcome of a push within the Senate to remove Mr Heydon.
Mr Oliver said Prime Minister Tony Abbott's royal commission was now "terminally tarnished and Commissioner Heydon's decision to dig in and stay despite the overwhelming perception of bias confirms this.
"What we are left with now is a multimillion-dollar royal commission that is tainted – everything that has happened until now and everything that will happen in the future is stained by these events," he said.
"Deciding to speak at a Liberal Party fundraiser demonstrates a serious lack of judgement and the way in which the commission has secretively handled this entire process has raised more questions than it has provided answers.
"It doesn't pass the sniff test. The simple fact is that you do not attend a political party event if you do not support, or are not sympathetic to, the cause".