Dyson Heydon takes more time to consider whether he should disqualify himself as royal commissioner

AFTER a day spent hearing all the reasons he should sack himself, Dyson Heydon is about to have a more awkward weekend than most.

DYSON Heydon’s initial decision to accept an invitation to speak at a Liberal Party event tainted his role, the unions royal commissioner has been told.

The ACTU, CFMEU and AWU have today sought to have the former High Court judge disqualify himself over perceived bias. Mr Heydon gave himself time over the weekend to consider whether or not he’ll bow to union demands.

The commission had heard that in April 2014 Mr Heydon accepted an invitation to a Liberal party function in Sydney to deliver the Sir Garfield Barwick address.

However, last week he announced he would not go ahead with the speech.

A series of emails to him, which have been publicly released, note the Liberal party’s involvement in the event.

Counsel for the AWU, Herman Borenstein QC, told the commission that once Mr Heydon had accepted the invitation “that taints the work that the commissioner does in relation to this commission”, despite the date of the event or whether it was a fundraiser. ACTU senior counsel Robert Newlinds said the final report of the $61 million inquiry would have “no credibility” if it was found to have been produced through a biased hearing.

“It has to be unimpeachable,” he said.

“And it can’t be allowed to happen that people can just walk around after the report and say `Oh well, don’t worry about that report, that was old Mr Heydon and he was biased, he told us he was biased’.” The fact that Mr Heydon was still open to addressing a Liberal Party event once the commission was over was enough to conclude “the reasonable observer might apprehend that you might not be able to bring an impartial mind to the issues at hand”.

A screengrab obtained Friday, Aug. 21, 2015 of Commissioner Dyson Heydon AC QC (top right) during a hearing of the Royal Commission into Trade Union Governance and Corruption in Sydney. CFMEU lawyer John Agius has questioned why an original email, from the event organiser to Mr Heydon, referred to state donation compliance rules and yet the line was missing from copies released by the commission on Monday. (AAP Image/Royal Commission into Trade Union Governance and Corruption) NO ARCHIVING, EDITORIAL USE ONLY

Mr Heydon’s agreement to deliver the address also “elevated the situation to being prepared to associate yourself with the party”. “That is, lend your name to a party function ... for the purpose of the party,” Mr Newlinds said.

Counsel for the construction union John Agius said Mr Heydon’s acceptance of the invitation might have encouraged people to join the Liberal Party or donate to it.

Mr Heydon last week said he had “overlooked” the connection of the event to the party.

However, Mr Agius told the commissioner: “You’ve always known that it was a Liberal Party event, he’s known that from April 2014, the hypothetical observer might think.” Mr Newlinds said there was a “low bar” to meet in terms of apprehended bias, as opposed to actual bias.

The written union submissions did not suggest the royal commissioner was actually biased.

Mr Agius told the commission emails released by it appeared to have been “doctored” because they dropped reference to political donation disclosure and “Liberal Party of Australia New South Wales division lawyers branch and legal policy branch”.

However, after receiving advice from commission staff, Mr Agius admitted there was a technical explanation for why the words and attachment could not be seen.

Mr Newlinds said he did not accept the emails had been doctored, but objected to the fact that the commissioner had tried to force the application to be brought on quickly on Monday without him having been properly briefed or received all relevant documents. “The hypothetical observer would be most perturbed by that,” Mr Newlinds said.

Originally published as Dyson Heydon takes more time to consider whether he should disqualify himself as royal commissioner