Wrinkles in the Dyson Heydon story … Parsing the emails … A speech lost for all time … Pulling out of the Barwick lecture moments before the story broke … A history of “overlooking” … Amazements aplenty
Abbott and Heydon have history. At the time of Abbott’s Rhodes selection The Sydney Morning Herald reported in November 1980:
“A leading Sydney University student politician who wants to see student bodies scrapped has been named Rhodes Scholar for 1981. Mr Abbott, 23, a law student, has taken a strong line against such bodies using money on ‘extreme causes’.”
Just the sort of stuff that 34 years later Abbott is hoping Dyse would attend to.
The application on Monday (Aug. 17) morning by the ACTU was for access to the correspondence, which Dyse coughed-up. Maybe there is more, but at this stage it gives the lawyers for the unions something to go on in arriving at a decision whether to make an application that the commissioner disqualify himself.
Peter Gordon, the ACTU’s solicitor sought every document “relevant to the issues raised in this correspondence”.
Leon Zwier, from Arnold Bloch Leibler, is acting for Bill Shorten, but was not part of the application for documents.
Meanwhile, Dyse has come up with the explanation that he “overlooked” the link between the organisers of the Sir Garfield Barwick lecture and the NSW Liberal lawyers club.
He must have been very determined to overlook the connection because he received at least five emails from organisers of the dinner, with attachments of the official invitation.
Many of the emails were sent and resent in the chain of correspondence, including copies of the reminders for the event sent to “members and friends”. There was a “gentle reminder” from Robert Carey, of Seven Wentworth Selborne, for members to get cracking and enrol for Dyse’s dinner. That was one day before the commissioner upped-stumps and went back to the pavilion.
The Liberal Party connection was mentioned 13 times in the correspondence that flowed back and forth through Dyse’s computer.
Apart from that some solid gold Liberal names were freely sprinkled – Howard, Brandis, Ellicott, Hughes. There was even mention of the far-right magazine Quadrant. Brandis was a previous Barwick lecturer, and billed taxpayers $1,000 for the privilege. Other dangerous lefties were also named as future lecturers, including Tubby Callinan.
What in the hell did Dyse think was going on? The penny miraculously dropped with the royal commissioner on Thursday morning (Aug. 13). The commission’s flack merchant, Adrian Kerr, emailed a statement at 11.22am saying:
“The commissioner Dyson Heydon will not be delivering the Sir Garfield Barwick address.
As early as 9.23 this morning (and prior to any media inquiry being received) he advised the organisers that ‘if there is any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of royal commissioner’.”
Twelve minutes after he advised the organisers he was pulling out, Latika Bourke from The Sydney Morning Herald’s Canberra bureau contacted the commission’s PR people and asked for a comment about the forthcoming Barwick event. That was at 9.35am.
The timing was amazing. Was there a vibe from Canberra that the Liberal Party connection was about to break? That seems possible and if the ACTU manages to tease out more about the timing then it may emerge that Heydon and the organisers thought it was all right to proceed with the Barwick dinner, as long as the compromised circumstance sailed under the radar and stayed out of the daily blatts.
The latest bunch of emails released yesterday (Monday, Aug. 17) is here, although not in chronological order.
The first relevant one is dated April 10 last year, in which Gregory Burton SC thanks Dyson for being “amenable” to give the lecture in the following year. He also tells Dyse the Barwick lecture is the Liberal lawyers “flagship” event.
There are numerous distracting wrinkles that emerge from the emails, including in March this year Burton’s suggestion that Dyse might like to explore Barwick’s views on human rights conventions [shudder].
Heydon replied on March 25 that he wasn’t aware Barwick had any particular views on human rights conventions, “but I would be interested to be directed to where he expressed them”.
Looks like the Libs have missed out on a zinger of a speech. Burton thought the topic was “excellent”, adding that his original suggestion was prompted by something John Howard once said, that it was Liberals who founded or initiated the Australian Conservation Foundation and the “Universal Declaration on Rights” – although they have been “captured for a different agenda”.
Barwick was one of the founders of the ACF, but Liberals and the “Universal Declaration of [Human] Rights”? Who might they be?
In the recent August 12 email, Barton makes it clear that Bar News is onside with republishing Dyse’s lecture. Maybe this organ is a secret Liberal Party publication – after all Burton is on the Bar News committee and royal commission counsel assisting, Jeremy Stoljar, is chair of the committee.
All very amenable and, in the circumstances, amazing that the Party connection could be “overlooked”.
In reply to an earlier email from Burton (on Aug 12), Heydon’s assistant, Barbara Price, said that Dyse will be unaccompanied to the event, he does not want questions or any Liberal Party description to be associated with the lecture.
This suggests, that while knowing the evening was affiliated with the Liberal Party, Heydon was covering his tracks, not wanting that association flagged – which was a bit late because the flyer had gone out before June 12.
Of course, there may be better explanation.
Burton’s Aug. 12 email said:
“As you know, although nominally under the auspices of the Liberal Party lawyers’ professional branches, this is not a fundraiser … I shall compere questions and there won’t be any on the royal commission.”
This also points to an awareness that the royal commissioner speaking at a Liberal banquet raised obvious sensitivities, not to say conflicts.
Now the unions are pouring over the emails and with their written submissions on any bias and recusal application are due by 2pm on Thursday (Aug. 20).
The matter could go to the High Court as part of its original jurisdiction in which a writ of prohibition is sought against a Commonwealth officer.
It does raise the question of who on the High Court could hear it?
Meanwhile, the debate outside the commission throws up some delicious notions.
William Burrell, from Cowrie Junction, in Queensland deserves a prize for his letter to Monday’s Financial Review (Aug. 17). He said that there is only a perception of bias about Heydon, “due entirely to Labor Party accusations”.
“No commission should have to continue its deliberations under a cloud of perceived bias. Therefore Heydon’s choices are either to step down or to recommend that a clutch of ALP idiots be charged with contempt.”
That might clear the whole thing up, except of course it was widely known which side of the fence Heydon sits, or stands. You might call that bias, or a view of the world that finds its way into his particular application of the law.
What the acceptance of the invitation from the Liberal Party lawyers has done is, possibly fatally, confirmed what has been long acknowledged about the royal commissioner’s arch views.
In 1999 the NRMA sued Dyson Heydon, along with Allen Allen & Hemsley and Abbott Tout for negligent legal advice. The complaint was that they had “overlooked” the possible effect of a pending High Court decision.
In the NSW Supreme Court the trial judge Roger Giles found that Dyse and the other defendants had been negligent and awarded damages of over $21 million.
The defendants appealed and while the appeal was pending Dyse was appointed to the NSW Court of Appeal.
To avoid the embarrassment a specially constituted CA, consisting of judges from other states, was created to hear the appeal.
That court allowed the appeal and held that the appellants had not been negligent, despite the earlier “overlooking”. Potential embarrassment had been avoided.
Melbourne barrister Geoffrey Gibson’s blog is robust and frequently enjoyable.
He’s entered into the arena on Dyse and Co, with some gratifying observations about the noble jurist, from the perspective of someone at the Yarraside bar:
“He [Heydon] is the author of works in the wantonly superior and acerbic style that some elevated lawyers in Sydney appear to find satisfying. He never sat as a trial judge, being appointed straight to a court of appeal and then to the High Court.”
Gibson thinks Heydon’s lack of experience as a trial judge makes his appointment to the royal commission inappropriate:
“Royal commissioners are not judges and they do not exercise a judicial function. They are part-time public servants conducting an inquiry and they are anything but independent of those who give them the job. But it is useful in many contentious inquiries to appoint someone who has judicial or at least forensic experience in determining issues of fact arising from conflicts between witnesses, and to do so with a person who is as distant from the fray as possible. Neither of those ends was achieved here.”
Further:
“The Vinerian Scholar entered into this royal commission and into territory that would be less familiar to him than Mars – or the home of the South Sydney bunnies. He also came with a propensity to pedantic dissent from the mainstream, and a capacity to say things that put your teeth on edge. He looks like an unsettling nerd out of sync with the rest of us, a flat white made flesh, the lone Ranger sans Tonto, more of a protected species than a living national treasure.”
“It is difficult to avoid the inference that the government chose to go ahead with the appointment [of Heydon] in spite of all the difficulties because they were set upon giving to their inquiry the gloss of the seal – the cachet, if you prefer – of the High Court of Australia – and there you have the whole bloody problem. We have drawn the courts, and our best one, into the political gutter.”
Finally:
“What did we Australians do to deserve this smutty little fiasco; more signally, what have we done to deserve these truly awful people who so truly believe that they are our ruling class?”
That’s pretty close to nailing it.