Damned if he stays, damned if he goes, but Dyson Heydon will fight

If royal commissioner Dyson Heydon rules next Tuesday that he is an objective judge, will he be showing bias?

This is the legal conundrum that has now engulfed the Royal Commission into Trade Union Governance and Corruption.

No one else in Australia could possibly be having the sort of weekend Heydon is going to have: reading through reams of submissions arguing that he has “an apprehended bias”, which means he should no longer run this inquiry.

After an extraordinary day at the commission in Sydney yesterday, Heydon announced his short-term future.

“What I’m going to do is to commence work on a consideration of this interesting and in some respects complex matter,” he said.

These were his departing words after he sat through a morning of public attacks on his professionalism by leading barristers.

There are two separate aspects to this story: one political, one legal.

Politically, Heydon clearly erred by accepting an invitation to a political function.

Yes, he did withdraw, 16 months after agreeing to do it and just as the media was about to publish, but the damage was done and the commission is, for the moment at least, deeply wounded.

Legally, it is not so clear that he erred.

Yesterday, three union submissions were presented which argue that, in the mind of “the hypothetical bystander”, by accepting an invitation to address a Liberal Party function he is now identified with the Liberals.

Their argument boils down to this: it was a Coalition government which appointed him and Heydon’s findings may damage the Liberals’ major political opponent, the Labor Party.

The ACTU’s counsel, Robert Newlinds SC, put the argument: “Our submission is that in agreeing to do the (Liberal Party) speech … if I can put it bluntly, people don’t speak at fundraisers of a political party unless they believe in the cause of that party and they certainly don’t speak at fundraisers of a political party if they support the other side of politics.”

Initially, some of Heydon’s supporters argued that it was not a fundraiser — they were wrong, as the documents released by Heydon show.

The invitation explained how people could donate to the Liberal Party and capped donations at $5000.

It said: “Please note individual donors need to be on the electoral roll to make a political donation.”

Counsel assisting the commission, Jeremy Stoljar SC, gave a possible insight into the response Heydon will give when in a submission yesterday he outlined the principles required for a judge to be disqualified for “apprehended bias”.

“The test to be applied when determining whether a judge is disqualified for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide,” he said.

Heydon needs to make a judgment as to what “a fair-minded lay observer” may think about his acceptance of the invitation.

That will be extremely difficult, especially given that the person making that judgment is in the eye of the storm.

The politics are also vexed — the governing political party wants him to say, the alternative government wants him to go.

Therefore, Heydon needs to make a further judgment.

If he feels he’s been wrongly accused of bias, does he want a fight which could go on for months.

On Tuesday, Dyson Heydon either resigns under a cloud of bias allegations or fights to restore his reputation.

I think he’ll fight.