Later today, Dyson Heydon will rule on whether he should recuse himself as Commissioner for the Royal Commission into Trade Union Governance and Corruption. The application on behalf of the ACTU, and several unions who are parties before the Royal Commission, rests on Heydon’s decision to accept an invitation to give the Sir Garfield Barwick address to a legal policy branch of the NSW Liberal Party. The argument is that in accepting the invitation to give the address, and not withdrawing when he was positively alerted to its association with the Liberal Party until such time as the event attracted media attention, could give rise to apprehended bias in his conduct of the Royal Commission.
Since arguments were made to Heydon on 21 August, there has been all manner of tea leaf reading as to how he will rule, such as whether several postponements in announcing his decision is an indication either way.
There is an interesting association, however, with a celebrated case that dealt with the matter of judicial bias, that may well weigh on Heydon’s mind (although he would surely disavow any influence on what he will insist is purely a question of law). [And let me hasten to add that the question of apprehended bias in the conduct of inquiries is not a matter of “judicial bias”.]
In February 2000, upon being appointed to the NSW Supreme Court and Court of Appeal (incidentally by a luminary of the Labor Left, then Attorney-General Jeff Shaw), Heydon told the Court:
“I have been fortunate in my professional career in many ways. First, the good judgment and self sacrifice of my parents made possible an education in which I have encountered many good teachers at all stages. Of these, the greatest was Leonard Hubert Hoffmann at University College Oxford.”
Heydon told an Oxford Law Alumni event in Sydney in 2006:
“In College there were Lennie Hoffmann and Tony Guest – brilliant, lucid minds. The future Lord Hoffmann was in the process of going to the Bar, and was not about much until the weekend. When the time of tutorials was discussed with him, he showed himself to be a man of compromise. “When do you want to come?” he would say. I would say: “Noon on Friday.” He would say: “8pm on Friday.” Then we would compromise. We would meet at 8pm on Friday.”
In introducing Heydon to a lecture (on threats to judicial independence) at the Inner Temple (one of the four Inns of Court) in London in 2012, the Master Reader noted:
Justice Heydon came to this country in 1964 as a New South Wales Rhodes Scholar to read law at University College Oxford, where one of his tutors was Lord Hoffmann. Whether due to that or not due to that he was awarded a first both in jurisprudence and in the postgraduate Bachelor of Civil Law degree.
Like Heydon, Hoffmann was a Rhodes Scholar (born and growing up in South Africa).
Like Heydon (in 1967), Hoffmann (in 1957) won the Vinerian Scholarship, a discretionary award given at Oxford for “the best performance in the examination for the Degree of Bachelor of Civil Law”.
In 1998, Hoffmann was a member of the House of Lords, and a member of the Court of Appeal. He was one of five “Law Lords” sitting on an appeal by General Augusto Pinochet, against a decision that the former Chilean dictator did not have immunity from extradition and prosecution for crimes against humanity. Given the attention attracted by the case, the ruling was televised. Hoffmann being the most junior of the bench as constituted, cast the decisive vote that saw the appeal dismissed in November 1998. In agreeing with two other Law Lords who ruled that Pinochet was not entitled to immunity, Hoffmann gave no reasons.
Subsequent to that decision, Pinochet’s lawyers were alerted to rumours that Hoffmann had an association with Amnesty International, who had been given permission to act as an intervener in the appeal. It transpired that Hoffmann was indeed a director of Amnesty’s charitable arm, Amnesty International Charity Ltd, and had been since 1990. (Amnesty had created a distinct charitable arm because the political activities of the broader organisation disqualified it from charitable status.) Furthermore, Hoffmann’s wife had been a paid employee of Amnesty International, as an administrative assistant, since 1977.
Hoffmann insisted that his association with Amnesty had no bearing on his decision, and was no cause for real or apprehended bias. At the time he told the UK’s Daily Telegraph: “The fact is I’m not biased. I am a lawyer. I do things as a judge.”
Indeed, several months earlier, Hoffmann, sitting as a judge in the Privy Council, was again the crucial third vote, on a five member bench, upholding the execution of a convicted killer in the Bahamas, contrary to the stance taken by Amnesty. Among the grounds for the appeal were that the sentence should not be carried out while the condemned man’s case was being investigated by a human rights commission.
In June 2000, the Guardian described Hoffmann as:
“… one of the privy council’s hanging judges, and in the last 20 months he has helped to send 13 Caribbean prisoners to the gallows.”
Nevertheless, a newly constituted appeals court in the House of Lords, unanimously ruled in February 1999, that Hoffmann’s association with Amnesty constituted grounds for automatic disqualification (a class of error differing from real or apprehended bias), and that it disqualified him from sitting on the Pinochet case. In ruling, Lord Browne-Wilkinson said:
If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart’s famous dictum is to be observed: it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Whether or not he knew of Heydon’s association with and regard for Hoffmann, counsel for the ACTU, Robert Newlinds, SC raised the Pinochet decision in the argument that Heydon should recuse himself from the Royal Commission:
May I say at this point, may I just refer to some of the English cases which our learned friend has brought to the Commissioner’s attention. Firstly, a word of warning: it is quite clear from a review, even a cursory review of the authorities in each country, that the English test, the legal test, is substantially different than the test in Australia.
THE COMMISSIONER: That was explained in Johnson v Johnson.
MR NEWLINDS: It was explained in Johnson v Johnson and I think in Ebner itself the Court says take no notice of Pinochet, a decision in the Lord Hoffman case, because I think what the court said was “Well we, if we were looking at those facts, we would just approach it in a completely different way; we would apply a different test.” They were not saying they wouldn’t have come to the same result, but in England there is a concept, as I read it, of automatic disqualification, or something, so that is just a word of warning.
At his swearing-in in 2000, Heydon said:
“Whatever impact the tactics of General Pinochet’s lawyers will have on Lord Hoffmann’s reputation, my recollection of his supreme powers of lucid analysis will remain fresh and clear.”
Heydon’s choice of words are interesting. Remember, this was a year after the appeal that saw Hoffmann’s disqualification. The ruling was unanimous, with the reasons largely articulated by Lord Browne-Wilkinson, and the other Law Lords concurring at various length. Given the nature of Hoffmann’s association with Amnesty and the fact that Amnesty was effectively a party to the case, it might be said that the decision, as a matter of law, was hardly surprising.
Yet, with the benefit of a year’s reflection, Heydon presents the settled question of bias as a matter of “the tactics of General Pinochet’s lawyers”; instead of, say, “Whatever impact the decision of House of Lords in Re Pinochet will have on Lord Hoffmann’s reputation.” Indeed, even raising the controversy at a ceremonial swearing-in, is an interesting reflection of Heydon’s state of mind at the time.
And in the years since, notwithstanding a career of some eminence at the bar and in the courts, the Pinochet case looms large in any profile or assessment of Hoffmann. Indeed, an opinion piece upon his retirement as a law lord in 2009, seizes on it as defining the remainder of Hoffmann’s career:
But, if Hoffmann’s reputation really had been unquestioned, he should now be approaching his retirement age of 75 as senior law lord – the very pinnacle of the judicial hierarchy. Appointed to the Lords when he was only 60, he would have become presiding judge in our final Court of Appeal if ‘senior’ had still meant ‘longest-serving’.
That convention was abolished in 2000 when Lord Irvine, the Lord Chancellor, announced that Lord Bingham was to become senior law lord. It was a brilliant move: Bingham had never seemed entirely comfortable as Lord Chief Justice and went on to flourish in the House of Lords. But I suspect it would never have happened but for the Hoffmann debacle of 1998.
I won’t pretend to know Heydon’s decision today (though I have my reasonably formed suspicions), but I suspect, nothwithstanding any disavowals to the contrary, Heydon will not be able to banish from his mind the similar circumstances, and eventual fate, of his “greatest teacher”.