Barrister says Abbott took him out of context over Heydon controversy

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Julian Burnside QC, a prominent human rights barrister, told the ABC this morning that his comments about trade union royal commissioner Dyson Heydon were taken out of context by the government during question time yesterday.

“As was pointed out by someone who is no great friend of this Government, Julian Burnside QC, Dyson Heydon is a man of honour ... Dyson Heydon is a man of honour,” the Prime Minister said in defence of Justice Heydon, whose impartiality to the commission was questioned after reports he was scheduled to give a speech at a Liberal Party fundraiser.

“They will grasp at any straws they can,” Burnside told the ABC.

“I don't think they would see me as a natural source of support, but the fact is I do have a high regard for Dyson Heydon.”

Justice Heydon claimed last week that he had overlooked the connection between the Sir Garifield Barwick address he was scheduled to give and the Liberal Party, but it has since been revealed that Justice Heydon was on the committee in the 1980s that awarded Abbott his Rhodes Scholarship.

“The more his connections with the Liberal Party become apparent, the more difficult it is to give him the benefit of the doubt,” said Burnside.

“But I still think that he's an honourable person.”
  • Patrick on 19/08/2015 3:37:53 PM

    Presumably all judges vote in elections, and their preferences likely flow to the Labor or Liberal party candidate depending on their political leanings.
    Doesn't it follow therefore that in any politically charged situation over which a judge must preside, that virtually any judge will be tainted with at least some political bias?
    Absent some credible basis for asserting the Commissioner is a liberal party stooge, this is a storm in a teacup.

  • Andrew Cohen on 18/08/2015 4:45:09 PM

    I have a high regard for former Justice Heydon having contact with him as my dean of my Law School, having litigated with him as my opponent, and having read some of his judgments, as well as having briefly socialised with him in recent years; and from all that, I have no doubt that his acceptance to give speech that what turns out to be a Liberal Party fundraiser arose from an unfortunate oversight.
    However, as I understand the gravamen, it is not the existence of bias or perceived bias, but that the potential for bias or the perception for bias must be absent for the appointment to continue to conclusion.
    That absence is paramount to what apparently is Mr Hayden QC's decision next Friday, viz: whether or not to disqualify himself.
    If that absence is not there, I trust that he will make the right decision, which is to put himself in the shoes of the reasonable Australian man/woman, Joe or Joanna Public, who surely may reasonably harbour a doubt, then the absence is not there.
    He should gauge this not on his self perception that neither consciously or subconsciously has his mistake caused him to be biased, but he is to me, inevitable decision must be based upon the question, 'Will the reasonable Australian harbour no thoughts of his having the potential to be biased in the circumstances'.
    Even a great man like he is, the shadow of potential bias cannot be assuaged by reference to people like me or you or Julian Burnside or Tony Abbott, who might know that he is unlikely to be biased, due to our knowledge of and contact with him.
    If he does make what looks to me to be the right decision, what a terrible waste and what a mess, given that if the government who gave him the commission cannot easily and therefore, with all difficulty, just start again, as I expect that we lawyers all know that a new commissioner will not be able to rely on transcripts, in the context of this Royal Commission equivalent to a mistrial, because it would demand that any replacement Royal Commissioner necessarily must, in order to carry out his commission in the appropriate judicial matter, be present for the actual evidence giving rise to outcomes and findings in relation to the witnesses.
    Being present when witnesses give evidence is central to our legal system and objectively to ensure fairness, when the truthfulness or otherwise of witnesses will colour the findings and outcomes.
    With an election looming, my view is that this has all been now, a huge waste because of Mr Heydon's mistake.
    To start again now, which in my opinion is necessary, perhaps should be better left to after the election, given that a central witness under scrutiny is the Leader of the Opposition. That of itself is why this is such a major cockup; and although I personally question the need for a Royal Commission, given that law enforcement agencies who might have interest in what the Commission has been investigating should and would be able to do their jobs in the meantime, and perhaps vitiate the need for a new Royal Commission, to have a potential prime minister giving evidence regarding allegations of corrupt activity at a time that might well clash with the final throes of a fiercely contested election does not sit well with me.
    I would be pleased if Mr Shorten could be exonerated if his past actions are, as he says, appropriate; and yet, this cockup will inevitably leave him under a shadow, that does demand both scrutiny and an outcome.
    Fairness demands that if the Royal Commission needs to be started from scratch, the timing must be right.
    Delaying the timing until after the election is a bad thing, but if it can't be done before the election which it probably can't, that is worse, as Mr Shorten will go into the election under a shadow.
    So 'appropriate timing' is impossible
    That is why the present situation leads me to use the word 'cockup', the word which I do not think I have ever used before. I was going to say'debacle'but I didn't.

  • Michael Miceli on 18/08/2015 4:18:58 PM

    Query whether 75(v) of the constitution is available for any party believing that there shall be some illegality in a finding by the Royal Commissioner's decision to not disqualify himself for the perceived bias.
    Interested to hear other comments on the relevance ( if any) of S75(v).

  • Michael on 18/08/2015 1:33:56 PM

    Not too sure if the heading of the article is correct - Abbott said Burnside considered Heydon to be "a man or honour" and Burnside says he considers Heydon to be "an honourable person". Sound like the same thing to me. I hope Burnside's links to the Labor party don't come back to haunt him one day, if he ever decides to go to the Bench. For example, this year's speech to the Labor National Conference - http://www.julianburnside.com.au/speech-to-labor-national-conference

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