Lingering doubts about the royal commissioner’s state of mind … Commissioner refuses to release all documents … We’re now in cover-up mode
THE smattering of new documents released by the trade union royal commission on Thursday (Aug. 27) didn’t clarify anything about Dyson Heydon’s state of mind in accepting and then withdrawing from an invitation to speak at a Liberal Party dinner and fundraiser.
We’re in cover-up mode, where the message from Heydon and the royal commission is that he withdrew from the dinner without being prompted by any inquiries from outside as to what the hell he was doing.
That was reflected in the announcement from the commission on Thursday, August 13:
The earlier 9.23am email to the organiser of the Barwick dinner, Greg Barton SC, was an an attempt to cover Heydon’s backside, because he knew full well it was a Liberal Party event.
In all there were at least 13 mentions of the Liberal Party is the email chain that passed through Heydon’s computer from the time he accepted the invitation in April 2014.
So what happened between 9.23am and 11.22am on August 13?
The latest release of documents shows that counsel assisting the commission, Jeremy Stoljar, got in touch with Heydon at 9am on August 13. This followed a tip-off to Stoljar from NSW bar publications manager Chris Winslow at 7.31pm the previous night:
“Is Dyson Heydon aware that the Garfield Barwick address, which he is due to deliver is a Liberal Party fundraiser?”
In turn Winslow’s attention had been drawn to this tiny detail by Marcus Priest, a Canberra solicitor with Sparke Helmore, who is an ex-journalist and former staffer to Mark Dreyfus, the shadow AG.
He had seen a notification of the Barwick address on the bar’s InBrief newsletter and was wanting to get hold of the actual invitation.
Stoljar then told Heydon that inquiries were being made about the Liberal Party hosting the Barwick address.
Stoljar’s diary note was also released on Thursday and it records this about his conversation with Heydon:
Hence, the 9.23am email to Burton from Barbara Price, about “any possibility …” etc, which was an attempt by Heydon to cover his backside, while he still knew it was a Liberal Party event.
Burton’s email dated August 12 that Dyse showed Stoljar, claiming the dinner was not a fundraiser, said this:
“As you know, although nominally under the auspices of the Liberal Party lawyers’ professional branches, this is not a fundraiser …”
Heydon must have read that email because he showed it to Stoljar as a justification for attending the event.
There is also information about the NSW attorney general (Gabrielle Upton (Lib, Vaucluse) possibly giving a vote of thanks at the dinner and in the final paragraph:
“In the absence of hearing from you we have proceeded on the basis you are happy to go ahead even though the commission is still in hearing (not expected when originally arranged) and thought it presumptuous to do other than leave that up to you. If however a problem emerges at the last moment then people will I’m sure understand.”
And a last-minute problem did arise – people started sniffing about, looking for the invitation, and making inquiries – including Sydney Morning Herald journalist Latika Bourke.
On Thursday, August 13, Heydon adjourned hearings at around 10.10am, saying, “an important problem has just arisen. The hearing will resume in five minutes”.
At around 10.150am there was another adjournment:
“Another problem has arisen that I must attend to.”
In one or other, maybe both, of those adjournments attorney general Brandis was on the phone to the commissioner. Word had got around Canberra and that is no surprise because Marcus Priest is still well plugged into his network at the press gallery.
So the timeline for Thursday morning (Aug. 13) looks like this:
Heydon insists that he notified his organisers he was pulling out “prior to any media inquiry being received”.
So that’s it. Magically, an independent bolt of clarity struck Dyson just after The Sydney Morning Herald rang the royal commission for a comment about the story it was about the publish.
Solicitor assisting the commission, James Beaton, in a reply to Peter Gordon, acting for the ACTU, was at pains to point out that, apart from receiving an email, Stoljar did not speak with Chris Winslow on the evening of August 12 or the following day; Winslow did not tell Stoljar he had been contacted by a journalist or that he had fear that a story was about to appear; Stoljar did not show the emails to the commissioner.
Dyse is seeking to quarantine himself from any suggestion that he was prompted to remove himself from the Liberal Party dinner by outside forces.
It just dawned on him independently, in a spark of enlightenment.
Indeed, Beaton insists that “the best evidence of the commissioner’s state of mind on August 13 was the email at 9.23am”.
That was the one from Barbara Price saying he was coming to the dinner, but not if it was “described” as a Liberal Party event.
In other words, it was all right to attend and speak as long as not too many outsiders knew about the Liberal Party connection.
If that’s the best that Heydon can come up with for an innocent “state of mind”, then he’s still deep in the woods. He knows that an agreement to speak at a Liberal Party event is a disqualifying act.
Regardless of protestations to the contrary, the event was a fundraiser because even though the $80 entrance fee may have just covered the cost of the dinner and room hire, there was attached information that attendees could make a tax deductible donation to the NSW Liberal Party to be “applied to state election campaigning”. The invitation was accompanied by a “state donation compliance” form.
Beaton is also contesting Peter Gordon’s request for all correspondence, communications or documents, in whatever form, that relate to the Garfield Barwick lecture and the decision to withdraw.
The failure to produce everything, including communications between Brandis and Heydon, would leave a fair minded lay observer with a concern that the commissioner was deliberately covering-up what had occurred.
Details of the conversation between Stoljar and Heydon at 9am on August 13 remains a matter of abiding interest.
Here’s a relevant timeline of events: