In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:
People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand…. So, the reasonable hypothetical bystander is going to think you’ve read this email.
But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits:
The bystander is in fact likely to reason that one thing a legal background brings is a capacity to go to the point of an email – a form of communication oppressively compelling a speedy response – so that a response can be despatched, particularly where the email does not relate to particular legal problems but to an extra-curricular engagement… . [H]aving glanced through the email on the first page, noting the time, date and place of the dinner, and noting that I was to be the guest of the organisers, it was not necessary for me to read the attachments explaining how those who were to pay would pay. That subject was of no concern to me… The contention that, having regard to those matters, the fair-minded observer would necessarily infer that I read the invitation is fanciful.
Those hypothetical fair-minded observers may be surprised to learn that being a former dean of Sydney law school, a former High Court judge and a current Royal Commissioner does not require even basic computer skills. The Commissioner explained:
At the outset, it should be noted that there is evidence that I have no computer and that all email correspondence is sent and received by my personal assistant (ACTU MFI-6).
Indeed it is notorious among the legal profession that I am incapable of sending or receiving emails. The consequence is that I read emails only after they have been printed out for me.
As the reasons noted, the former judge’s findings may be reviewed by other judges:
To some minds, including those of fair-minded lay observers, it might seem strange that a person complaining about the bias of a Royal Commissioner should make application for disqualification not to a court, but to the person accused of bias or apprehended bias…Of course if the application to the decision-maker for disqualification fails, the applicant then has the opportunity to seek relief from a court of competent jurisdiction.
If yesterday’s decision is appealed to the fullest extent available, then it is possible that the current High Court may eventually need to rule on how a reasonable bystander would perceive their own email reading habits.
Two points, one substantial, one less so:
First, the test relates to a reasonable and *informed* bystander – i.e. a bystander who has listened to and read and understood the evidence. The uncontradicted evidence here is that Commissioner Heydon is an IT Luddite. I think it’s reasonable to attribute knowledge of that fact to the hypothetical bystander.
Secondly, the Commissioner’s decision cannot be “appealed” – he’s not a judge of a court anymore, he’s a person exercising the Executive Power of the Commonwealth under Chapter II of the Constitution. As such, he is an “officer of the Commonwealth” for the purposes of s75(v) of the Constitution and his decision is thus subject to “judicial review” (an imprecise academic term here referring to an application for prohibition, mandamus or injunction and ancillary remedies in the original, not appellate, jurisdiction) by the High Court or by the Federal Court under its “clone” of s75(v) in s39B of the Judiciary Act.
Thanks. I’m not sure which of your points was the more or less substantial one. I think they’re both substantial.
Regarding the informed bystander, your point is correct about the law. But I think there is potential ambiguity about how to work out what a bystander is informed of, at least when it comes to matters that aren’t on the official record but instead happen behind closed doors and are only witnessed by the decision-maker and his associates. While it’s true that Heydon’s lack of computer skills are uncontested, I don’t know if that means that the informed bystander has to believe that claim (any more than the informed bystander has to believe Heydon’s claim, not contradicted by evidence but nevertheless doubted by the union applicants) that he doesn’t read attachments.
Regarding appeals, my reference was just to the possibility of later appeals to the High Court from any court ruling on the merits of Heydon’s ruling. As Heydon and you say, any court involvement will be predicated on it having jurisdiction to give ‘relief’ to the disappointed union applicants. In turn, any such court ruling can then be appealed as far as the High Court. (There is also the possibility that the matter will be brought in – or removed to – the original jurisdiction of the High Court in order to speed things up.)
The second point was what I saw as the less substantial one. While the distinction can matter enormously from a technical perspective, the general public and non-legal journalists underatandly see judicial review of a quasi-judicial administrative decision-maker as indistinguishable from an “appeal”.
As to the first point, I was right about it being the more substantial issues – if for no other reason than that your rebuttal has now made me less sure of my position! I’m going to have to think about that. I stand by my view that the bystander should be attributed with the knowledge that Heydon doesn’t do emails in general, but the specific issue of whether the bystander would accept that he didn’t read the attachment (which, unlike the general Luddite point, *was* challenged, if only on inherent implausibility grounds) is more troublesome than my original comment might have suggested.
My issue with Heydon’s judgment is that some very real and worthy legal questions are surrounded with points of questionable relevance, points which are mere point-scoring on the union lawyers, and points which strain credibility.
The “IT Luddite” argument is a case in point. I don’t see how it makes a difference whether he reads the email on a screen or has it printed for him and reads it in hard copy. How is it relevant? Even to the issue of whether he reads the attachment, I don’t see why it is any more or less believable that he would ignore an attachment printed out than ignoring an attachment on the screen. It feels more like an obfuscation than anything else.
Another case in point was the reference to former Chief Justice Gleeson giving the Barwick lecture. Gleeson CJ was not chairing a royal commission at the time.
The major credibility strainer is Heydon’s effort to deny the nexus between the Liberal Party and the subject matter of the Royal Commission (he must be the only man in Australia who hasn’t heard the Prime Minister refer to the Royal Commission “cleaning up” the Labor Party).
He really goes too far in trying to clear himself from any skerrick of doubt, as by his own reasoning he needn’t have withdrawn from the event or ever specified that he would only do it once the royal commission was over. Yet he did both of those things, the first of them in some haste. It rather undermines the reasoning.
Two of the “reasons” cited by Heydon for rejecting the claim I am certain wouldn’t stand up on review. They are what he describes as “no reason to find incapacity to deal with issues impartially”, because frankly that’s setting the bar far too high, to the level of demonstrating actual bias, and “no logical connection between any predisposition and the issues” considering the Prime Minister’s own description of the Royal Commission and other elements make it impossible to say a reasonable and informed observer wouldn’t see a connection.
If he’s going to be upheld, it must be on the first ground “no apprehension of bias from non-political speech” (a speech he hasn’t given, of course!) I personally find this unconvincing but I concede it’s subjective. Still, no judge sitting on a case would ever agree, while he or she is sitting, to go to dinner with a witness to that case. The judge could say “I am not going to discuss the case with the witness”. The judge could say “We will not have the dinner if the case is still going by that date”. It would still create the apprehension of bias, and Heydon’s rationalizations around the facts of his specific situation and attempting to minimize everything rather than be transparent and frank do not convince me that it is unreasonable to apprehend bias or at least a possibility of bias, quite the opposite.
Here’s an interesting post about the fair minded lay observer http://sociallitigator.com/2015/09/01/trade-union-royal-commission-why-apprehended-bias-applications-are-so-hard-to-win/
Most of the commentary on this (in the media) is so bad I was excited to see this post appear in my RSS feed.
I wonder whether the end game of the parties and their supports is political rather than legal. The submissions made to the Commission are very different from the press releases the unions sent out and the comments made in Parliament by the ALP and Greens. The strategy appears to be to create a widespread perception that the Commission is actually biased so that when it reports its findings, they won’t be taken seriously (or when the findings are shredded into soundbites and used in Liberal Party attack ads, they won’t carry much impact.)
More interesting for me is the subject of contempt of commission. Is there a reason that it is rarely used (I couldn’t find any cases involving its application) and also why the legislation hasn’t been updated in what looks like decades? (I assume a $200 fine was a big disincentive in the distant past.)
This post isn’t really concerned with the merits of Heydon’s decision, just his remarks on the High Court. I imagine you’re right about the end game.
As for contempt of commission (in s6O of the Royal Commissions Act 1902), I think the reason why it is little used is that, unless the Commissioner is a sitting judge, it requires external prosecution. As well, if used to prosecute people for ‘insulting’ the Commissioner (especially people who were questioning the suitability of the Commissioner’s appointment or his willingness to stay on in light of political controversy), it would invite a quite plausible constitutional challenge based on freedom of political communication (assuming that the views Heydon J himself expressed in Monis aren’t adopted by the rest of the Court.)