I do not think Royal Commissioner Dyson Heydon knew he had been booked to speak at a political fundraiser. But if that's the case, it raises serious questions about the Liberal Party's NSW division, writes Julian Burnside.

Royal Commissioner Dyson Heydon was due to give the 6th Annual Sir Garfield Barwick Address on August 26. It was to be given in honour of Sir Garfield Barwick, former Chief Justice of the High Court. The speech was to be given at the Castlereagh Boutique Hotel. Tickets were $80 per person. It was to be a Liberal party event, one which looks very much like a fundraiser, although the Liberal party now says it was not a fundraiser, just an event you had to pay to attend.

The event was promoted to Liberal party members. The invitation to attend the address was on the letterhead of "Liberal New South Wales", with a prominent Liberal Party logo. The payment form on the invitation said "Cheques should be made payable to: Liberal Party of Australia (NSW Division)". The invitation also solicited donations and said "All proceeds from this event will be applied to state election campaigning".

This morning, after his speaking engagement was revealed by Fairfax media, Heydon announced that he would not now give the address.

Heydon presides over the Royal Commission into Trade Unions. The Royal Commission has so far been fairly unfriendly to the Labor side of politics.

While there are many aspects of Heydon's judicial philosophy I disagree with, I do not think he is so foolish as to accept the invitation knowing it was a Liberal Party fundraiser. I do not share his views, but I do not doubt that he is an honourable person.

The affair raises a number of important issues. But the facts are not entirely clear. We do not know when Heydon learned that the event was a Liberal Party fundraiser.

If Heydon was aware all along that the event was a Liberal Party fundraiser, then it is little short of astonishing that he accepted the invitation. While a Royal Commissioner might not have to show the same impartiality as a judge, a demonstration of actual bias should result in his resignation or removal.

Heydon is a brilliant lawyer and has a distinguished record as a judge. It is difficult to imagine that he knew that the event was a Liberal Party fundraiser. He would certainly have been conscious of the impropriety of sitting on the Royal Commission and, at the same time, helping the Liberal Party raise funds.

I do not think he knew.

But if he did not know, it raises serious questions about the Liberal Party's NSW division. Heydon's role presiding over a contentious inquiry into trade unions is hardly a secret. The appearance of former Labor PM Julia Gillard in front of Heydon was headline news and the Abbott Government has used the Royal Commission relentlessly to advance its own political ends. It is fair to assume that, when the Liberal Party invited Heydon to give the address, it was aware that he was the Royal Commissioner.

How to explain such a thing? There are only a few possibilities. Maybe the NSW branch of the Liberal Party is so stupid that it was not aware that Heydon was the Royal Commissioner. That would require stupidity of a very high order. Maybe it is so unprincipled that it did not recognise the impropriety of having the Royal Commissioner speak at a political fundraiser while he was engaged in such a highly charged inquiry. Maybe it is so corrupt that it thought that the interests of the Abbott Government might be advanced by inviting Heydon to speak.

Tony Nutt, the NSW state director of the Liberal Party, has been quoted as saying that Heydon was approached "several years ago" to deliver this year's memorial lecture. That is not quite the same as saying that he was invited, and accepted, the invitation several years ago.

The fifth annual Sir Garfield Barwick Address was delivered by the Hon Murray Gleeson on August 20, 2014. At that time, Heydon had been Royal Commissioner for six months. It seems surprising that these things are lined up so long in advance.

Regardless, on the assumption that Heydon accepted the invitation before he became Royal Commissioner in February 2014, it is hard to believe that no one in the Liberal Party thought it desirable to tell him that the event he had agreed to speak at was a Liberal fundraiser, and that his participation might compromise his role as Royal Commissioner.

The only plausible explanation is that the fault lies with the Liberal Party, but if they are to take the blame which almost certainly lies with them, they will have to choose: are they stupid, unprincipled or corrupt?

It's hard to think of any other explanations for the known facts. Perhaps they will try to shift the blame to Heydon. That too would be stupid, unprincipled and corrupt.

Julian Burnside AO QC is an Australian barrister and an advocate for human rights and fair treatment of refugees.

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