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Dyson Heydon decision 'pretty hard to fault': legal expert -

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ELEANOR HALL: Labor says it will now move a motion in the Senate to call on the Governor-General to remove Justice Dyson Heydon from the Royal Commission into trade unions.

Dr Anna Olijnyk is a law lecturer at Adelaide University whose research focuses on the relationship of courts to the branches of government.

She's been following the Dyson Heydon case closely and joined me earlier:

Dr Olijnyk, your reaction to Justice Dyson Heydon's decision?

ANNA OLIJNYK: Legally it is fairly convincing. He certainly engages with the arguments on a very detailed level.

What I think is interesting about the decision is how he really dismisses the value of general impression. He actually criticises some of the unions' arguments as being imprecise.

He says for example, labelling the Sir Garfield Barwick Lecture as Liberal party function is a very imprecise way of labelling it, you have to look very closely at what it is. He also talks about the importance of considering whether any allegiance that he does have to the Liberal party would affect his decisions in the royal commission. And he says, oh no they wouldn't, because the issues for him to decide in the royal commission are not, he thinks, party political.

So it's a very carefully reasoned judgement and the reasoning is pretty hard to fault.

ELEANOR HALL: He was arguing that there was no perception of bias; could he equally have argued that a perception of bias was not relevant in the case of a royal commission?

ANNA OLIJNYK: I don't think he could have. Every government decision maker, almost every subject to very limited exception, has an obligation to be free of both actual and apprehended bias.

ELEANOR HALL: So did he answer that apparent inconsistency then about why he decided not to give the speech if doing so would not produce a position of bias?

ANNA OLIJNYK: Yeah he said there are things that people do, because they want to avoid people objecting, because they want to be prudent, because they want to engage in careful risk management. So he effectively said it was the sort of thing you would do because you wanted to steer well clear of any possible perception of bias, but giving the address wouldn't necessarily create an appearance of bias itself.

ELEANOR HALL: Does that argument convince you?

ANNA OLIJNYK: Look, lawyers do tend to be very risk adverse and to do everything they can to avoid trouble if they can.

ELEANOR HALL: Was the union lawyers cases sloppy, as justice Heydon implies?

ANNA OLIJNYK: No I don't think it was. I think it was an excellent example of advocacy. Probably where the difference is between the unions' case and justice Heydon's decision is in the level of detail that they say you have to look at.

So the unions say you really look at this from a broad perceptive. Their case was: here we have a royal commissioner engaged in a very party politically sensitive inquiry, who has agreed to give an address to a Liberal party function.

They say that's enough to create an appearance of bias. Heydon says, you have to look a lot more closely at that; you have to unpack those concepts; what do you mean by party political sensitive inquiry?

What do you mean by a Liberal party function? How does giving an address at that function create an appearance that the commissioner won't decide the case on its merits?

So I think they were really just working on different matters of impression.

ELEANOR HALL: So what are the chances of the unions winning if they take an appeal to the Federal Court?

ANNA OLIJNYK: Look I think they've got a chance. This is, I think, a case that's close to the line. So there are cases, there are clear cases of bias sometimes. There are clear cases where there's no argument for bias. This one is right in the middle I think.

Like I said, I wouldn't have been shocked if Heydon had decided the other way. I think that was open on the facts.

So they've got a chance.

ELEANOR HALL: Now the unions, they're considering that option. The Labor party's also exploring the root of asking the Governor General to remove justice Heydon.

What are the legal requirements for this to happen?

ANNA OLIJNYK: Well that would have to be done on advice of the Government. So the Federal Government is free to ask the Governor General to terminate Heydon's commission.

ELEANOR HALL: So the Federal Government is unlikely to do that, what about the Labor party and possibly with support of other opposition parties in the Senate asking the Governor General?

ANNA OLIJNYK: My understanding is that they wouldn't have the power to do that; it would have to come from the Federal executive.

ELEANOR HALL: So at this stage it looks like justice Dyson Heydon will remain as commissioner. Do you think there is any way that will now tank the findings of this royal commission?

ANNA OLIJNYK: Well, I think to answer that you have to think about what royal commissions are there to do. So a royal commission will investigate a situation and then report to government on its findings. It will make findings; it will make recommendations. And then what the Government does is completely up to the Government.

Legally, these findings aren't tainted in any way, because we don't have a finding of apprehended bias. Politically, if the Government wants to ask on those findings, I think there's still a lot of feeling in the community, and certainly on one side of politics, that there are arguments you could make that these findings aren't reliable.

ELEANOR HALL: Dr Anna Olijnyk, thanks so much for joining us.

ANNA OLIJNYK: Thank you Eleanor.

ELEANOR HALL: And that's Dr Anna Olijnyk, a law lecturer at Adelaide University.