Dyson Heydon has form

August 20, 2015
Justice Dyson Heydon has failed to pass the 'pub test'.

Why was John Dyson Heydon QC liberal prime minister Tony Abbott’s “captain's pick” to run the royal commission into the trade unions?

It could be from the shared solidarity that you’d expect of Rhodes scholars. Or perhaps it was just innocent association from the time former Prime Minister John Howard appointed Dyson Heydon to the High Court in 2003, a position he retired from under the compulsory age rule of 70 in 2013.

At the time of the appointment, Richard Ackland, editor of the Australian law journal, Justinian, pointed out in a newspaper opinion piece that there is a double-edged sword in establishing royal commissions.

Ackland referred to the “Costigan effect”, which occurs when a government sets up a royal commission for political dividends and ends up getting bitten on the backside by unintended consequences.

The Costigan royal commission into the activities of the Ship Painters and Dockers Union is a classic example. Costigan’s inquiry pioneered the use of computers in following the money trail. When it did so, it found itself inquiring into “bottom of the harbour” dodgy tax deals of prominent business people that led to an investigation of Kerry Packer.

Ackland wrote that something similar could occur with the conservative lawyer appointed to lead the unions’ royal commission: “In my waters, I feel that Dyson Heydon is just the sort of take-no-prisoners man to make the government regret it let loose a royal commission into trade unions.”

This conjured up the possibility that Dyson Heydon might undertake a forensic inquiry into questionable dealings by employers as the evidence emerged. This, of course, has failed to materialise with the inquiry widely held to be a witch-hunt into unions, designed to win the Coalition the next federal election.

Instead, Dyson Heydon kicked an own goal when it was revealed that he had agreed to speak at a NSW Liberal Party fundraiser in Sydney on August 26, the annual Garfield Barwick Memorial Lecture.

The Right Honourable Sir Garfield Barwick was a federal Liberal MP who was Attorney-General before being appointed Chief Justice of the High Court in 1964. His biographer, David Marr, said that the Barwick High Court’s decision in the Casuarina case in 1970 “became the cornerstone of the tax avoidance industry in Australia, and Barwick became the leading influence on the High Court’s tax decisions, which in turn stripped section 260 (the catchall section of the Income Tax Assessment Act designed to prevent tax evasion) of almost all of its remaining effect.”

As to Barwick’s business dealings concerning his family company Mundroola when he was Chief Justice, Labor’s then finance minister Senator Peter Walsh claimed in parliament that “the prima facie evidence shows that Chief Justice of Australia [Barwick] … was a tax evader”.

In 1975, Barwick backed up Governor-General Sir John Kerr in his dismissal of the Whitlam Labor government.
No doubt Dyson Heydon was going to remind his Liberal Party audience of this and would now be a little put out that he will be unable to do so.

One annual lecture that Dyson Heydon did manage to give was the Acton Lecture for Religious Freedom in April last year — after the announcement in February of his appointment as royal commissioner.

This was at the invitation of the right-wing think tank, the Centre for Independent Studies (CIS). The founder of CIS is Greg Lindsay, who was previously president of the Mont Pelerin Society.

This venerable society was named after the hotel in Switzerland where it held its first conference in 1947 organised by Friedrich Hayek. The work of the society — “re-establishing liberalism as the public doctrine of Western civilisation” — was carried out, without much initial success, by a small group of right-wing intellectuals that included Milton Friedman.

Their work won both of them the Nobel Prize for economics and their economic doctrine is now universally referred to as neoliberalism.

Abbott’s Attorney-General, George Brandis, who addressed the inaugural Barwick memorial dinner in 2010, and who has ministerial responsibility for the Royal Commissions Act, defended Dyson Heydon while declining to reveal whether he knew that a serving royal commissioner was loaning himself to the Liberal Party for a fundraising event.

In response to the ACTU’s likely use of the High Court to have the royal commission wound up, Brandis attacked what he called “lawfare” — trade unions and environmental groups having the temerity to use the court system to test the legality of government decisions.

In 1985, president of the NSW Court of Appeal Justice Athol Moffit who was the royal commissioner investigating organised crime in NSW in the early 1970s, wrote a book called A Quarter to Midnight.

In it he recalled the English origins of judicial appointments from the time in the early 17th century when King James I thought that judges were servants of the monarch and should obey the orders of the Crown. The English jurist Sir Edward Coke argued that the law was supreme, a view accepted with the Act of Settlement in 1701.

This gave judges security of tenure, but the king was still allowed to appoint judges “whom he thought would favour himself, but could not dismiss them if they did not”.

Dyson Heydon was certainly an appointment that the Abbott government thought would favour its view of weakening trade unions.

As the unseemly affair unfolded, he set what was surely a first for a royal commissioner when he appeared to be in the dock defending himself with the dubious proposition that it was just a lapse of memory.

His credibility as witness to his own shortcomings demonstrably failed to pass the “pub test”.

Dyson Heydon then got to be judge and jury of his own fate by alone deciding on his ability to continue as commissioner following an application by the ACTU for him to step aside and bring the royal commission to an end.

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