Justice Dyson Heydon is taking more time to consider his position as royal commissioner into trade unions. Photo: Anna KuceraThe royal commission into trade union corruption would be unlikely to continue if Dyson Heydon disqualified himself from heading the inquiry because of his role in judging the credibility of witnesses when they give evidence, leading law academics have said.
Even so, Prime Minister Tony Abbott vowed on Tuesday that the royal commission would continue if Mr Heydon stepped aside.
“Regardless of what the royal commissioner ultimately decides, the royal commission must and will go on,” he said.
But law experts have warned that it would be difficult to continue because a new royal commissioner will not have had the opportunity to observe and interrogate witnesses who have given evidence.
Greg Craven, Professor of Constitutional Law at the Australian Catholic University, said there was a strong legal argument against Mr Heydon recusing himself from the royal commission because it would threaten its ability to continue after his departure.
“That is actually relevant in law, as well as relevant practically,” he said.
“One of the things the law of natural justice would say is that authorities like royal commissions should actually lean against disqualifying themselves from bias if the results of so doing would be that they could not carry on their inquiry.
“If I were Heydon, that would be part of the reason that I would say I was not going to recuse myself.”
Professor Craven, who is also vice-chancellor of the university, said that if Mr Heydon disqualified himself for bias, “the argument would then be that the royal commission could not go forward under another royal commissioner”.
“That would also be a breach of procedural fairness because they had not heard the parties,” Professor Craven said.
This would also give unions the opportunity to make the $61 million royal commission start again with a new royal commissioner.
Desmond Manderson, a professor of law at the Australian National University, said: “the question of weighing up evidence etc is clearly not just a matter of reading transcripts”.
“Too much about weighing up evidence is about credibility and that’s about personal demeanour, responsiveness and lots of other things that a text can’t adequately capture.
“The judicial system sets a lot of store by first hand and oral evidence.”
Mark Findlay, Professor of Criminal Justice at the University of Sydney Law School, said a royal commission is given to an individual commissioner.
“If he rules that he can’t continue he must resign his commission – as such the commission then lapses,” he said.
“[I]f he can no longer continue then the commission has to be reissued.”
Professor Findlay said it was possible for a new commission to be given to someone else who could take all transcribed hearings into account.
“But that would be difficult to manage and the new commissioner might object to not being able to personally interrogate key witnesses,” he said.
Unions made an application on Friday for Mr Heydon to disqualify himself from the inquiry because of an alleged appearance of bias after he accepted an invitation to a Liberal Party event
Mr Heydon said he “overlooked” the Liberal Party connections to the Sir Garfield Barwick Address to be held on Wednesday night and cancelled his appearance in recent weeks after he realised it was a fundraiser.
On Friday, Mr Heydon adjourned the hearing till Tuesday, but he is taking longer to make a decision.
A spokesman for the royal commission said on Tuesday afternoon that Mr Heydon “is taking the time required to consider his decision”.
“A further update will be provided in due course,” the spokesman said.