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ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 19, 55 Market Street, Sydney, NSW, 2000

On Friday, 21 August 2015 at 10am

ACTU Application

Before the Commissioner: The Hon. John Dyson Heydon AC QC

Counsel Assisting: Mr J Stoljar SC Ms Sarah McNaughton SC Mr Thomas Prince

Instructed by: Minter Ellison, Solicitors

.21/08/2015 APPLICATION 23 Transcript produced by DTI CORRECTED

1 THE COMMISSIONER: Yes, Mr Stoljar? 2 3 MR STOLJAR: Before I deal with some housekeeping matters, 4 there are some appearances, Commissioner. 5 6 THE COMMISSIONER: Yes. 7 8 MR NEWLINDS: Commissioner, if you please, I appear with 9 Mr Sulan for various entities identified in some 10 submissions we sent up yesterday. Can I seek leave for us 11 to appear on behalf of those parties for the purpose of the 12 application described in that document? 13 14 THE COMMISSIONER: Leave is granted. Yes, Mr Borenstein? 15 16 MR BORENSTEIN: Commissioner, I seek leave to appear with 17 Ms Levine for the Australian Workers' Union. 18 19 THE COMMISSIONER: Yes, that is granted. Mr Agius, of 20 course, appears for the CFMEU and various other people. 21 22 MR AGIUS: Yes. 23 24 THE COMMISSIONER: Thank you. Incidentally, Mr Agius, 25 I congratulate you on your speedy return to health. 26 27 MR AGIUS: I am indebted to the care of medical 28 professionals at the Royal North Shore Hospital. 29 30 THE COMMISSIONER: They must be very able people. 31 Mr Stoljar? 32 33 MR STOLJAR: Commissioner, can I just deal with a few 34 matters before the applicants come to the substance of 35 their applications. 36 37 The first is that there was an exchange of 38 correspondence between the solicitor for Mr Agius's client, 39 the CFMEU, yesterday, and the solicitors for the 40 Royal Commission. I tender on this application a letter 41 from Slater & Gordon of 20 August 2015 and the response 42 from the solicitors for the Royal Commission of 20 August 43 2015. 44 45 THE COMMISSIONER: Yes. 46 47 MR STOLJAR: It may be convenient for those to be marked


1 ACTU MFI-6. 2 3 THE COMMISSIONER: I will mark them in that way. I think 4 it is convenient, as a matter of background, to retain the 5 exhibits from last Monday. MFI-2 is obviously centrally 6 important, but the others have some background utility. 7 Those two letters will be ACTU MFI-6. 8 9 ACTU MFI-6 - LETTER FROM SLATER & GORDON DATED 20/08/2015 10 AND RESPONSE FROM SOLICITORS FOR THE ROYAL COMMISSION 11 DATED 20/08/2015 12 13 MR STOLJAR: The next matter is that the CFMEU submissions 14 came with a bundle of documents which, as we apprehend it, 15 the CFMEU wishes to put into evidence on this application. 16 I tender that bundle. 17 18 THE COMMISSIONER: Yes. That will be ACTU MFI-7. 19 20 ACTU MFI-7 - CFMEU SUBMISSIONS ON APPLICATION 21 22 MR STOLJAR: Commissioner, the Commission has received 23 three sets of written submissions from, respectively, the 24 ACTU and associated members of the ACTU, the CFMEU, and the 25 AWU, and I ask that those submissions be received by you. 26 27 THE COMMISSIONER: Yes. I receive those submissions. 28 I should indicate that I have read them. 29 30 MR STOLJAR: Commissioner, this morning Counsel Assisting 31 circulated a set of written submissions and I ask that they 32 be received. 33 34 THE COMMISSIONER: Yes. They are received. 35 36 MR STOLJAR: I note in respect of those submissions that 37 the usual practice in an application for disqualification 38 is that it is treated as a matter between the parties 39 seeking the disqualification and the judicial officer the 40 subject of the application. That usual practice is that 41 counsel for other parties, who may be present, take a 42 neutral position on that application. That is the course 43 which Counsel Assisting proposes to follow on these 44 applications. Subject to any matters arising, or unless we 45 can be of any assistance to you, Commissioner, we didn't 46 propose to amplify what we have said orally on our written 47 outline.


1 2 THE COMMISSIONER: That position seems to accord with what 3 Mr Newlinds submitted in paragraph 114 of his written 4 submissions. 5 6 MR STOLJAR: Yes, Commissioner. I have had some 7 discussions with my friends about the order of address and 8 the agreed position, as I apprehend it, is that the ACTU 9 will go first, followed by the CFMEU, followed by the AWU. 10 11 THE COMMISSIONER: Yes. Yes, Mr Newlinds? 12 13 MR NEWLINDS: If the Commission pleases, firstly, in 14 relation to the position of Counsel Assisting, may we say 15 we think the position adopted is entirely appropriate and 16 these submissions as to legal matters are a matter which we 17 think is perfectly appropriate for Counsel Assisting to 18 assist if they think they can in that regard, so we thank 19 our learned friend for that. 20 21 As far as evidence is concerned, I have not been in 22 the loop, if you like, as to the correspondence between 23 other parties and the Commission. I have spoken to 24 Mr Stoljar. I am operating on the basis that MFI-2 is 25 complete, and it seems to me what has happened is that in 26 loading on the computer, some things didn't get there. If 27 at any point, when I am going through MFI-2, I come to a 28 point when it seems not to be the case, I am sure 29 Mr Stoljar will point that out. 30 31 THE COMMISSIONER: Yes. I am not entirely in the loop 32 either, but I think what you have said is probably correct. 33 I do not think there is any new material that is not in 34 MFI-2 in some respect. 35 36 MR NEWLINDS: And for my part, I haven't reviewed the 37 material that was just tendered at the request of the 38 CFMEU, but for my part, the only material I want to rely 39 on, and that I consider relevant for my application, is 40 referred to in our written submissions and as you will have 41 appreciated, that is either documents in MFI-2 or other 42 documents which are in the public domain which, I assume, 43 somewhere in the course of the Commission bear 44 identification numbers, for example, the Letters Patent and 45 the opening documents and the like. 46 47 THE COMMISSIONER: Yes.


1 2 MR NEWLINDS: Evidentially-wise, I confine myself, and you 3 can assume that the only relevant matters are what we have 4 identified. 5 6 THE COMMISSIONER: Yes. Just on the CFMEU bundle which, 7 I think, is ACTU MFI-7, you may not have seen it but it 8 supports your points in some respects. 9 10 MR NEWLINDS: That is good. 11 12 THE COMMISSIONER: While we are on evidence, 13 Mr Borenstein, do you have any additional evidence you want 14 Mr Stoljar to tender? 15 16 MR BORENSTEIN: We don't. We have references, as you will 17 have seen, to various documents that are in the 18 Commission's archives. We have a folder which collects 19 them, which may be convenient for you to look at. 20 21 THE COMMISSIONER: If you have gone to the trouble of 22 putting them together, it probably is convenient, if you 23 can hand it up, but if any further step has to be taken, do 24 not bother, I can check for myself. 25 26 MR BORENSTEIN: No, we have them in a convenient bundle 27 and we can hand them up. 28 29 THE COMMISSIONER: All right. It is not necessary for me 30 to mark that, I think, but if you can hand it up whenever 31 is convenient. Mr Agius, do you have any evidentiary 32 material other than ACTU MFI-7? 33 34 MR AGIUS: Our additional material has now been tendered 35 by Counsel Assisting. We have nothing in addition to that. 36 37 THE COMMISSIONER: Very well. I think we can proceed, 38 Mr Newlinds. 39 40 MR NEWLINDS: Thank you, Commissioner. I understand you 41 have read the written submissions -- 42 43 THE COMMISSIONER: I have. 44 45 MR NEWLINDS: -- and I certainly don't propose to read 46 them out to you. 47


1 THE COMMISSIONER: I have read them several times. 2 3 MR NEWLINDS: May I start with this point: there are some 4 factual matters which no doubt will not be immediately 5 embraced by you in relation to construction of certain 6 circumstances that have occurred over the last year and a 7 bit, but, before I come to that, can I make this 8 submission. We think it is clear enough and would be 9 readily apparent to the hypothetical reasonable observer 10 that as of today, looking forward, your position is that 11 you are prepared, once this Commission concludes, to speak 12 at a Liberal Party fundraiser. 13 14 Our respectful submission is that is enough to pass 15 what we have called the Ebner test in our written 16 submissions. In other words, the submission is that the 17 reasonable observer might apprehend that you might not be 18 able to bring an impartial mind to the issues at hand. 19 I immediately appreciate that you are not going to embrace 20 that submission, because you made no secret of that fact. 21 22 So I start, I understand, from the proposition that 23 you have already formed your own view that that position is 24 appropriate. I accept that, but, of course, I have to make 25 the submission that your own subjective view is irrelevant 26 and the reason I say that is not because you are any 27 relevant person, it is because if ever there is someone who 28 does not fit the description of the "reasonable 29 hypothetical lay observer", it is you, Commissioner. 30 31 The question becomes - and I would ask you, and I know 32 you will, to try and open your mind to this more wider 33 question - objectively, is there sufficient problem with 34 the circumstance that I have just outlined so as to create 35 what the lawyers call "apprehended bias"? Some of what I 36 am just about to say is obvious, but just let me step 37 through it. 38 39 The connection between the conduct and the asserted, 40 by me, apprehended bias is as follows: the Liberal Party 41 of Australia and the Australian Labor Party are natural 42 adversaries, as we all know. Since the Second World War 43 they have either effectively been the government or the 44 opposition, certainly in the Federal Parliament, and in 45 most State Parliaments throughout the land, and, in this 46 great democracy in which we live decisions as to what laws 47 govern us and who becomes the Executive Government are


1 determined by the people who vote one or other of those 2 parties in and we have, as we all know and love, a very 3 robust contest between these adversaries which peaks at 4 election time but continues throughout. That is the first 5 point. 6 7 The second point is the union movement in Australia is 8 not just inextricably but it is organically connected to 9 the Australian Labor Party. The unions founded the 10 Labor Party way back in the 1890s, I think after some 11 shearing strikes, and, as we know, because it is a 12 perennial debate within the Labor Party, continue to, by 13 reference to the structure of that party, have significant 14 influence on the policy position of the party on various 15 matters and also on the very important matter of 16 preselection and the like. 17 18 Indeed, I don't think this is something that would 19 require evidence during the period that Ms Gillard was 20 Prime Minister, it was often said - and I certainly don't 21 put this forward as being the fact - that she was a puppet 22 or someone who was under the control of the union movement, 23 and that was put forward by the other side of politics, the 24 Liberal Party, as a criticism Ms Gillard, but the 25 underlying premise that the unions have the ability to 26 exert great control on the Labor Party ought to be taken as 27 a given. 28 29 Then you come to this Commission and in the portions 30 of our learned friend Mr Stoljar's remarks, which we have 31 set out in our written submissions, the political context 32 in which this Royal Commission was formed, and about which 33 the topics that the Commission is concerned, was 34 acknowledged. We embrace those comments, but just to spell 35 them out, the Commission was created by the Abbott 36 Government and it has been said that it was created for 37 purposes of hopefully damaging the Labor Party in part. 38 However, to put a vanilla description on it, without 39 getting into political labelling, the topic, as 40 I understand it, a fundamental topic that runs right 41 through the Terms of Reference and right through the 42 matters that you are inquiring into, is not the sexy things 43 as to whether there are crooks or non-crooks involved with 44 the union movement, but it is the very important question 45 of whether the law should be reformed so as to bring 46 different responsibilities and legal obligations upon those 47 who control the unions, a topic about which the two sides


1 of politics in this country disagree. It seems, indeed, I 2 think just this week in the Senate, a Bill failed to pass. 3 It had been promoted by the Government, it proposed some 4 reforms - I am not over the detail - as to the governance 5 of unions, it was opposed by the Labor Party, and it failed 6 because of the way the crossbenchers fell. 7 8 There you have, without getting into the exciting part 9 of the Commission, a circumstance where you have a position 10 where the unions stated public position and the 11 Labor Party's stated public position is that they don't 12 think that any law reform is necessary, they think the way 13 they are structured is perfectly satisfactory. They don't 14 think it is appropriate that they should have brought to 15 bear on them - and when I say "they", I mean people in 16 control of unions - the same type of laws that apply to 17 people in control of companies, and they think that the 18 arrangements for superannuation and the like under the 19 control of union funds is perfectly satisfactory. On the 20 other hand, it is pretty clear that, at a very general 21 level, that is not the position of the Liberal Party. That 22 is a matter, I don't want to take it any further, that is a 23 subject of the inquiry. 24 25 The next point is this: our submission is that in 26 agreeing to do the speech, even on the condition originally 27 imposed in 2014, as we apprehend it is the position today, 28 at a time when the Commission has ended, is such as to 29 associate yourself with the Liberal Party and if I can put 30 it bluntly, people don't speak at fundraisers of a 31 political party unless they believe in the cause of that 32 party, and they certainly don't speak at fundraisers of a 33 political party if they support the other side of politics. 34 35 I don't want to get into which side of politics you do 36 or don't support because if this application was simply 37 based on someone doing a search and working out that you 38 had been to Liberal Party functions, or were a member of 39 the Liberal Party indeed, this would be a very different 40 application which I don't think I would be prepared to 41 make. 42 43 The distinguishing factor that we say changes the 44 position from that bland state of affairs, because if 45 people who supported a particular party in this country 46 were disqualified from being Judges or being Commissioners 47 of Inquiry, then we wouldn't be left with many people to


1 choose from. There are swinging voters and there people 2 who keep it top secret, but mostly it is generally known. 3 That is not our application, it is not based on that. It 4 is not based on any suggestion that you might be a 5 Liberal Party supporter or not. It is based on the 6 agreement to do the address which we say elevates the 7 situation to being prepared to associate yourself with the 8 party; that is, lend your name to a party function for the 9 purpose of raising money for the party in part, but even if 10 it wasn't for raising money for the party, for the purpose 11 of the party. 12 13 I don't know how political parties operate, but 14 I assume that in organising functions and getting people to 15 come along to them, not only do they want to raise money, 16 but they want to try and convert people, if you like, to 17 the cause, and certainly they would probably like to get 18 people who might be interested in the cause to take up 19 membership or if they are already members, to get more 20 involved in the affairs of the party. 21 22 To use the words of one of the cases, those 23 circumstances are sufficient, in our respectful submission, 24 to engender in our friend, the hypothetical lay observer, a 25 disquiet that you might be partisan against the 26 Labor Party. I am quoting from what Justice Ashley said in 27 the case of Lex Lasry QC, who is now Justice Lasry, 28 I think, which we have set out in paragraph 5 of our 29 written documents, where his Honour said: 30 31 I agree, on the other hand, with the 32 observations of Thomas J ... that the 33 hypothetical observer would be likely to be 34 concerned if, in a Commission raising 35 matters which were highly politically 36 charged - reflecting a divide between the 37 main political parties - a Commissioner was 38 thought to harbour political prejudice. 39 40 May I emphasise at this point what I call the double 41 "might" test in Ebner. We would respectfully suggest that 42 the use of the two "mights", not only is it rather ugly 43 grammar, it does emphasise that this is actually quite a 44 low bar that is imposed by the High Court in relation to 45 the test, because I don't have to persuade you that the 46 hypothetical observer would think that you harbour a 47 political prejudice. I only have to persuade you that the


1 hypothetical observer, firstly, might think and, secondly, 2 what he might think is that you might harbour a political 3 prejudice. 4 5 I think that is an important point to emphasise. The 6 test could be cast with the use of many other words but it 7 has obviously deliberately been cast in that sense which 8 creates a low threshold. That is our first submission. We 9 put it forward as a basis by itself that would justify the 10 making of the orders we seek. 11 12 May I say at this point, may I just refer to some of 13 the English cases which our learned friend has brought to 14 the Commissioner's attention. Firstly, a word of warning: 15 it is quite clear from a review, even a cursory review of 16 the authorities in each country, that the English test, the 17 legal test, is substantially different than the test in 18 Australia. 19 20 THE COMMISSIONER: That was explained in Johnson 21 v Johnson. 22 23 MR NEWLINDS: It was explained in Johnson v Johnson and 24 I think in Ebner itself the Court says take no notice of 25 Pinochet, a decision in the Lord Hoffman case, because 26 I think what the court said was "Well we, if we were 27 looking at those facts, we would just approach it in a 28 completely different way; we would apply a different test." 29 They were not saying they wouldn't have come to the same 30 result, but in England there is a concept, as I read it, of 31 automatic disqualification, or something, so that is just a 32 word of warning. 33 34 Secondly, the case about the Palestinian litigant and 35 the lady judge who was a member of a Jewish organisation - 36 I can't quite remember its name -- 37 38 THE COMMISSIONER: I know what you are referring to. 39 Helow v Home Secretary. 40 41 MR NEWLINDS: Thank you very much. I'm sorry. All I want 42 to say about that is: beware applying a different legal 43 test but, secondly, very distinguishable on the facts 44 because her Honour, whilst a member of an organisation, had 45 not adopted a public stance of support of that organisation 46 in the way that we say you have done, for the reasons 47 I have explained. So, we say applying a different test and


1 in any event facts very different. 2 3 Could I then say something about the doctrine of 4 necessity which our learned friend has brought to your 5 attention. It is important, obviously, but our answer to 6 it is this, and it is at a number of levels. 7 8 Firstly, as a matter of law, we say no doctrine of 9 necessity applies - I am sorry, did I interrupt you? 10 11 THE COMMISSIONER: I was about to say I had not quite 12 heard what you were talking about, but the doctrine of 13 necessity, yes, which, of course, one only gets to -- 14 15 MR NEWLINDS: Yes. I just thought I would deal with it -- 16 17 THE COMMISSIONER: If you wish. 18 19 MR NEWLINDS: -- at this point because what I am trying to 20 do is deal with this discrete submission that I have just 21 made as a standalone case, if you like. So I will deal 22 with the doctrine of necessity now, if that is convenient 23 to you, I won't come back to it. 24 25 THE COMMISSIONER: Certainly. 26 27 MR NEWLINDS: There are three points we want to make. 28 Firstly, we say as a matter of law in this country, the 29 doctrine of necessity has no part to play in relation to 30 the application of the bias rule as a concomitant of 31 procedural fairness. It certainly has a place to play in 32 relation to other aspects of the requirement of procedural 33 fairness and as the cases explain, there is, especially in 34 relation to the prejudgment rule, a lot of flexibility 35 allowed in the jurisprudence for the application of that 36 rule to take into account the very different ways that, for 37 example, a court would operate in an adversarial case, to 38 the way a Commission of Inquiry like this obviously acts. 39 That is the first point. 40 41 I will just tell you the first three points and then 42 I will come back and develop it. 43 44 The second point we would say is that as a matter of 45 fact it is just not made out. Necessity is necessary, it 46 is not some subjective balancing of financial consequences 47 and the like. I will give you an example, if I may. If,


1 for example, this case went to the High Court, of course, 2 the High Court would hear the application, even though all 3 their Honours know you very well, and the reason for that 4 is obvious, if they all recused themselves there would be 5 no High Court and, Commissioner, you and the other litigant 6 would be deprived the opportunity to go to that court; so 7 there is a classic example of the doctrine of necessity. 8 9 The third point we would make is if the doctrine is 10 applicable and if you find some facts are made out, there 11 is ultimately a question of discretion involved. There 12 must be because there must be a balancing exercise between 13 the asserted or found necessity and what is considered a 14 fundamental requirement of our entire legal system, that 15 anyone who adverse findings might be made against is 16 entitled to a fair hearing, which includes a hearing not 17 just by an unbiased person but that is perceived to be 18 heard by an unbiased person. 19 20 Maybe that third point is another way of putting the 21 second point because if it is truly necessary to proceed 22 with the proceedings, notwithstanding the perceived or 23 indeed perhaps even actual bias, well, then, you can't have 24 any discretionary consideration involved. If necessity is 25 a matter of judgment, for example, how much money has this 26 Commission cost to date, would it be appropriate to throw 27 all that money, time and work away, if that be the 28 consequence, against the requirement for procedural 29 fairness, then we would say that as a matter of discretion, 30 the particular circumstances of this inquiry would actually 31 dictate that you accede to our application for reasons 32 I will develop. 33 34 Going back to the first point, as I understand it, and 35 my submission is, just starting at first principles, why is 36 there an obligation of procedural fairness on this 37 Commission, our submission is it seems to be well settled 38 that it is because the operation of this Commission, what 39 its powers are, and the like, are governed by the 40 Royal Commissions Act 1902. Nowhere in that Act does it 41 say that a Royal Commission is required to afford 42 procedural fairness to anybody. However -- 43 44 THE COMMISSIONER: It is scarcely controversial that 45 Royal Commissions are bound by procedural fairness. 46 47 MR NEWLINDS: No, I know, but I just want to develop why


1 the doctrine of necessity can't come in and - can I just 2 develop the submission? 3 4 THE COMMISSIONER: Yes. 5 6 MR NEWLINDS: I know it is not controversial, the 7 overarching proposition. First principles: you've got to 8 find it in the Act. The orthodox way that that would be 9 dealt with is that it is an implied provision of the Act. 10 11 THE COMMISSIONER: If you could find it in the Act, well 12 and good. There is another approach, it is simply a 13 general doctrine of law: principle of legality, the Act 14 has to be very clear before it takes away -- 15 16 MR NEWLINDS: Correct. Correct. And so the fact that 17 Parliament hasn't taken it away leads to an implication, 18 either in the Act that it is positively there, or simply 19 leads to the result that the general obligation remains in 20 place. That is because it is one of those principles of 21 law that whilst it is open to the Parliament to derogate 22 from, the courts have always taken the position that it 23 would be such an important step for a Parliament to take, 24 that the courts in order to find that the Parliament has 25 taken that step, require the Parliament to spell it out in 26 simple terms, and so where does that leave us? 27 28 That leaves us with the position that procedural 29 fairness is something that a Commission is required to 30 provide. That leads to the second question: well, what is 31 procedural fairness? It is an easy thing to say; sometimes 32 a slippery concept to come to grips with. It is generally 33 accepted that it has two limbs. 34 35 One is that a person is entitled to a fair hearing, 36 which boils down to a proper opportunity to be heard and to 37 be heard by an unbiased adjudicator: that's one limb. The 38 other limb is that the adjudicator can't prejudge the 39 litigation. 40 41 There you have a whole series of cases that explain in 42 relation to that second limb that it is not set in 43 concrete, that no-one can write out what is required by the 44 particular officer, in your case, a Commissioner, but in 45 other cases a Judge of a court, and what the cases say: 46 well, you have to be flexible because you look at the 47 Royal Commissions Act, it is an inquiry, the Commissioner


1 is involved in the inquiry, it is not adversarial, it is 2 inquisitorial; of course, he or she is going to form views 3 along the way. They might be very strong views. That all 4 can be dealt with by being flexible as to what's applied. 5 6 We haven't found any cases that say anything similar 7 in relation to the bias rule. In other words, in doing all 8 of those things, the requirements to bring an impartial and 9 unprejudiced mind to the resolution is not diluted, and 10 I get those words from the case of Carruthers v Connolly 11 which is in our submissions. It is a Queensland case, 12 [1998] 1 QR, and it starts at page 339. It is a decision 13 of Thomas J. If I can just draw your attention to the part 14 of the passage, I'm not going to spend very much time 15 taking you to the cases, but at page 371, firstly starting 16 at line 5, there is a paragraph that talks about the 17 relevant test for bias and it picks up the Ebner test 18 objectively. 19 20 At about line 9 it says: 21 22 This objective is applicable not only in 23 the proceedings of courts but also in 24 various quasi-judicial tribunals, 25 administrative tribunals and commissions of 26 inquiries. 27 28 In the next paragraph: 29 30 In applying the principles, different 31 expectations of conduct will exist 32 according to the function being performed 33 by the person or entity who exercises the 34 relevant public power. For example, a 35 degree of intervention that is unacceptable 36 by a Judge may be acceptable in a 37 Commissioner. The Commissioner has an 38 inquisitorial function which the role of a 39 Judge is essentially to adjudge an 40 adversarial contest, but the expectation of 41 the person exercising the power will bring 42 an impartial and unprejudiced mind to the 43 resolution of the question entrusted to 44 that person is not to be diluted. 45 Condemnation of a biased tribunal is an 46 unacceptable abuse, just as exoneration of 47 a biased tribunal may be considered


1 worthless. 2 3 The non-dilution of that requirement, as explained by 4 his Honour - and, of course, it could be diluted by 5 Parliament - in our respectful submission means that the 6 doctrine of necessity has no part to play as a matter of 7 law. If there is a biased tribunal, and I know you 8 understand it, but for the benefit of everyone else, I, at 9 no point in these submissions, are suggesting that you 10 actually biased. When I say "bias", it is shorthand for 11 the apprehension as described in the cases. If you are 12 biased, procedural fairness cannot be afforded in a way 13 that cannot be answered by questions of necessity. That is 14 the first point. 15 16 The second point is: as a matter of fact, necessity 17 hasn't been proved. All that has been pointed out by our 18 learned friend is that there has been a mammoth amount of 19 work done undoubtedly at a large amount of costs to the 20 Government and other people. We would respectfully say, 21 "Okay, well, that's a result", but it doesn't compel that 22 the only way to deal with a finding of bias would be to 23 continue on notwithstanding such a bias. 24 25 The third point is: if there is discretion involved, 26 in my respectful submission, it would actually compound the 27 matter, compound the problem. If you were to come to the 28 unlikely - I accept this would be an unlikely result, but 29 this is the one contemplated by our learned friend, to 30 actually find that you are - well, to actually find that 31 there is shown to be a reasonable apprehension of bias in 32 the hypothetical bystander, on the one hand, but, on the 33 other hand find, as a matter of fact, that it is necessary, 34 notwithstanding that, for you to continue - and may I 35 explain why I would say that that would actually be a 36 monstrous exercise of discretion. 37 38 I know this is obvious, but the end result of this 39 inquiry is not going to be a judgment that is binding on 40 people. It is going to be a report, a very important 41 report, everyone says - and we would accept that - and it 42 is going to be deployed then within the body politic of 43 Australia by various interest groups to determine what, if 44 anything, should be done about unions. Maybe the result of 45 this inquiry will be all the rumour and innuendo that has 46 floated around for decades in this country, that unions are 47 corrupt and the like, is not true and you give them a clean


1 bill of health, that's possible, and if that happens the 2 unions will be very happy, but it will have no credibility 3 to anyone if it comes forward in the context that there has 4 been a finding that it was a biased hearing. 5 6 The other side of the coin is: you will find bad 7 things about various people in unions, perhaps, but most 8 importantly, you might recommend law reform. Law reform 9 will happen if the Parliament, under whichever side of 10 politics has the numbers at any given time, is persuaded 11 that it is a good thing. If the report is to be used for 12 that beneficial purpose, to assist people to persuade our 13 democracy to come to a new position on law, it has to have 14 credibility, it has to be unimpeachable, and it can't be 15 allowed to happen that people can just walk around after 16 the report and say, "Oh, well, don't worry about that 17 report, that was old Mr Heydon and he was biased, he told 18 us he was biased." 19 20 We say the doctrine of necessity just should be put to 21 one side and the answer to this case is yes or no. 22 I either make out the position, in which case whatever 23 relief is appropriate has to follow, and I have to say we 24 haven't properly analysed relief, but if I get to that 25 stage, I am sure it can be sorted out. 26 27 Can I then go to the longer part of the case, if 28 I may? It does involve going back to MFI-2 and just 29 walking through the documents. I know that you have read 30 them recently and you will have them in your mind, but can 31 I just take a little time doing that. 32 33 At MFI-2, mine never had tabs, so can I use the 34 numbers in the bottom right-hand corner, so starting at 35 page 1, we have the email from Mr Burton to you of 10 April 36 2014. Obviously, Mr Burton has been to a riveting and 37 brilliant Acton Lecture and you and he have had a 38 conversation and it is quite clear from the second 39 paragraph that the conversation included probably a 40 reasonably vague chat about the Sir Garfield Barwick 41 address, and that you had given some sort of indication 42 that you might be prepared to do that once the Commission 43 was completed, and he is setting out the detail. 44 45 In the next paragraph, he sets out or he tells you 46 that he is the chair of one of Lawyer Branches of the 47 Liberal Party (NSW), the one that has a focus on policy,


1 the other on professional engagement, and so on. 2 3 The next paragraph: 4 5 Although we are formally a branch of the 6 Party, our aim is to be a liberal-minded 7 "bridge" to the profession rather than 8 overtly party-political (although we trust 9 we show the Party in a favourable light!). 10 11 The next paragraph is about the flagship event, being the 12 Sir Garfield Barwick address. He tells you where it is and 13 the like. 14 15 Then we, in the next paragraph, are told about some 16 former speakers and as you can see it includes various - 17 certainly all the people who are not currently serving 18 legendary Liberals: Mr Ellicott, Mr Hughes and Mr Howard, 19 who have spoken, it would be consistent, you would expect, 20 with a Liberal Party event and also, though, I should point 21 out, in the third-last paragraph, the Honourable 22 Murray Gleeson has spoken. I don't think anyone who dare 23 suggest what way his political leanings bend. I would 24 imagine he would keep them very close to his chest. But, 25 still, he was a person who they were anticipating getting 26 and they had sounded out Mr Callinan and Mr Garry Downes. 27 28 Just going back to the second paragraph, what 29 Mr Burton took away from the discussion was that you had 30 indicated that you would be amenable to delivering the 31 address, but - and this is very important, I know - 32 conditional on the Commission being completed. 33 34 There we have, going back to my first submission, the 35 position being that you, Commissioner, see no problem with 36 agreeing to do the address, but only when the Commission is 37 completed, and I have made my submissions about that. 38 39 Could I then go through to page 3 where you write back 40 punctually: 41 42 I will deliver the Barwick address in 43 August 2015. 44 45 Just in the chronology, we know that at that time your 46 Commission expired, or the letters patent expired I think 47 on the last day of December 2014, and so obviously the


1 foreshadowed date is after that time. 2 3 Page 5, Mr Burton writes back, even more punctually 4 with an explanation mark, "Many thanks!", that happens on 5 12 April. 6 7 On page 8, we move forward to 2015. The chronology 8 has paused in April 2014 and the arrangement is that you'll 9 do it sometime in August and it is known to both you and 10 Mr Burton that that is after the Commission has been 11 completed and it is obviously understood by the two of you 12 that that was a condition. 13 14 Chronologically, I think we're right in saying, that 15 in October 2014 the Governor-General amended the letters 16 patent or issued new ones extending the time for reporting 17 until the end of 2015. So by the time we get to page 8 of 18 MFI-2, we are in March 2015, and the Commission no longer 19 is scheduled to be completed by the end of 2014. That is 20 obvious enough because we're now into March 2015 and you 21 are still the Commissioner and Mr Burton would have known 22 that, and he writes to you. 23 24 At this point it has to be accepted, on the facts, 25 that it seems Mr Burton has forgotten that there was a 26 condition understood by the two of you as to the giving of 27 the address, because he writes and he says: 28 29 I am proposing that "save the date" ... 30 31 I think that is a thing you can send through the email that 32 attaches the calendar, I think. You don't actually get an 33 email of the "save the date", although no doubt, 34 Commissioner, you are more savvy with these things than 35 I am. 36 37 ... for the 2015 Barwick address, which you 38 have kindly accepted for, should go out in 39 March. 40 41 Do you have a preference between 42 Wednesday ... 43 44 -- and some dates are set out. 45 46 ... with arrangements as in the first email 47 in the chain below?


1 2 Now, that is important because Mr Burton is referring you 3 to something that is below in what is commonly known as 4 chains of emails. 5 6 You may already have in mind a perspective 7 on a topic of interest, but, if you don't, 8 then (having dived into your work on bills 9 of rights and human rights) I wonder if 10 Barwick on Human Rights Conventions and 11 related matters may be a diving-off point? 12 13 I think, as you point out later, that would be a very short 14 speech. But, importantly, if we move down the chain of 15 emails, we come at page 9 immediately to the email of 16 10 April 2014 where Mr Burton had spelt out in very clear 17 terms that this was an event organised by Liberals and 18 could reasonably be described as a Liberal Party event. 19 20 You write back on 25 March, that is at page 11. You 21 have obviously read the email and rather pithily point out 22 that a gap in your knowledge was any understanding of any 23 views of Sir Garfield on Human Rights Conventions and, 24 subject to that, you had considered you were putting 25 forward a topic for a speech and you weren't fussed as to 26 dates, to the dates that had been suggested. 27 28 At page 12, Mr Burton writes back on 25 March. He 29 thinks your suggested topic is terrific; then gives an 30 explanation for the human rights thing. Then importantly, 31 we think, the last paragraph says: 32 33 If you have no preference on dates I'll try 34 to aim for a non-Parliamentary sitting week 35 to give the politician-lawyers less excuse 36 not to turn up! 37 38 We would have thought, when you read that email, you would 39 have understood that the politician lawyers were likely to 40 be Liberal politicians who were also lawyers who might be 41 interested in coming to the address, but even if that 42 wasn't the case, you would immediately know that the event 43 had some sort of political connection, and that is what the 44 fairminded observer, we would respectfully submit, would 45 think that you thought. 46 47 If we go to page 13, if I may, we're now into 4 April


1 this year. Mr Burton has now fixed on a date and he notes 2 that that's a non-sitting week for Federal and New South 3 Wales Parliaments. The next paragraph is simply about how 4 long the speech may be. 5 6 At page 15, on 7 April, you write back to Mr Burton 7 and tell him that you have entered the event into your 8 diary of 26 August. It is not clear whether the "save the 9 date" email was ever sent, but, if it was, it seems that 10 you have manually entered the event into your diary. When 11 I say that, it seems you have manually done it as opposed 12 to it happening automatically by the "save the date" 13 process. 14 15 We then come to June. There is a gap in the 16 chronology from the start of April through to 12 June when 17 Mr Burton sends you the email of 12 June, and there's a 18 number of things to notice about this document which we 19 think the reasonable bystander would assume that you would 20 have read and understood. 21 22 Firstly, the subject line of the email is: 23 24 Liberal Party of Australia (NSW Division) - 25 Lawyers' Branch and Legal Policy Branch 26 27 And the attachments are described as: 28 29 Barwick Invitation - August 2015 30 31 Then it says: 32 33 ... (1).docx; State Donation 34 Compliance.docx. 35 36 I think in computer-speak that means there were two 37 attachments. It may be there was one and that was a 38 description of them. It doesn't matter. It is, we would 39 respectfully suggest, clear enough to the reasonable 40 bystander that you would have understood from reading this 41 email that this was a function of the Liberal Party and 42 there was going to be some form of fundraiser because there 43 was donation compliance forms involved. 44 45 What he says to you is: 46 47 I thought you would like a copy of the


1 formal invitation, following the "save the 2 date" that was circulated some months ago. 3 You of course are our guest - please let us 4 know if you would like to bring a guest. 5 6 Pausing at this point, the transcript of Monday's 7 appearance, I think it is towards the bottom of page 13, 8 you said that you did not read the attachments to this 9 email, that you noted the date and place, but nothing more. 10 11 We then go down to the bottom of the email and what 12 Mr Burton, I think, has done is that he's forwarded on to 13 you a general email that presumably has been sent out to 14 people who are identified as likely suspects to come along 15 to this talk. Once again, it has the same heading on it, 16 17 Liberal Party of Australia (NSW Division) - 18 Lawyers' Branch and Legal Policy Branch 19 20 The next paragraph talks about the Lawyers Branch and the 21 Legal Policy Branch, obviously enough in the context of the 22 title of the "Liberal Party of Australia invite you", and 23 then the details of the time and place are in that third 24 paragraph and, of course, attached to it is the invitation. 25 Mine is not coloured, but I am prepared to bet quite a lot 26 on the fact that it is probably blue in large parts, it's 27 got the Liberal Party logo and brand and, obviously enough, 28 anyone looking at that invitation would immediately know 29 that it was a Liberal Party event. 30 31 If you go over to the RSVP part of it, at page 19, 32 which obviously enough was not a relevant document to you 33 because you weren't going to be paying to come along to 34 give your own speech, Mr Burton had made that clear, but 35 the document, if noticed by you, makes it entirely clear 36 that, firstly, if people don't want to come - only because 37 I assume they'd be out of the jurisdiction - they're able 38 to make a donation and, secondly, that it is $80 a person 39 to come along; that is on the left-hand side. On the top 40 of the right-hand side, the cheque is to be made to the 41 Liberal Party of Australia, NSW Division. 42 43 At the bottom of that column: 44 45 A receipt will be issued. All proceeds 46 from this event will be applied to 47 State election campaigning.


1 2 In context, that is obviously State Election campaigning 3 for the Liberal Party. 4 5 Then there is the Disclosure Warning which is at the 6 bottom of that page and then what seems to be from the 7 title of the email, perhaps, a separate document, at 8 page 20, a State Donation Compliance explanation document. 9 I haven't looked at this - I should have because in another 10 place I was involved with, there were a lot of facts about 11 donations in New South Wales, but obviously enough, I think 12 you can take notice that there is a $1,000 cap on what at 13 least individuals can donate to any political party. You, 14 of course, can donate more than that, but if you do you 15 have to disclose your name, that is the first point that 16 you get from the warning, and I guess the other advantage, 17 if you like, if a person understands that what they are 18 paying by way of their ticket price is a donation to a 19 political party, they get a tax deduction for it. 20 21 So pausing, without having heard what you said on 22 Monday, at transcript page T13, the hypothetical reasonable 23 observer would really be in no doubt that you understood 24 that this was a Liberal Party function and that you 25 understood it was a fundraiser of some type, and that is 26 because the hypothetical observer would naturally assume 27 that you would read the email and even if scanning it, you 28 would pick up those facts, not necessarily from going to 29 the attachments, but from the very body of the email itself 30 and the titles. 31 32 Can I pause here and address another question of law 33 that our learned friend has just drawn attention to? 34 35 We know that you are the Honourable Dyson Heydon. 36 When I say "we", I mean the lawyers in this room and we 37 know that you have particular skills as a lawyer and as a 38 judge and, for that matter, as an academic. We know that 39 you are a man with a reputation for having a razor sharp 40 mind; to use another cliche, a mind like a steel trap. 41 42 I think my learned friend is correct in saying that 43 the hypothetical bystander that this matter must be judged 44 by, he or she doesn't know that. But what he or she does 45 know is, if you like, your resume. They do know that you 46 were appointed to the Court of Appeal of New South Wales, 47 then to the High Court of Australia and served for the best


1 part of a decade, I think, and that the Executive Branch of 2 Government has seen you as a person appropriate to carry 3 out this very important, difficult and fact intensive 4 inquiry. I would submit that you would accept that those 5 facts are imputed to the bystander. 6 7 Then there is a question of: well, what would the 8 bystander make of all that? In our respectful submission, 9 it is not a very large step to say that they would assume 10 that the very things that you actually are renowned for are 11 the position. People don't get appointed to the High Court 12 of Australia unless they are considered truly brilliant 13 lawyers, and what the truly brilliant lawyers have over and 14 above truly ordinary lawyers, they have that special 15 ability to absorb incredibly quickly and distil facts, and 16 an ability to retain facts so absorbed and distilled, so as 17 to fit them into the wider picture of the particular legal 18 problem at hand. That is what a great lawyer is expected 19 to be able to do, and that is what the person would infer 20 the Executive thought about your abilities when they 21 originally appointed you to this Commission and extended 22 it. So, the reasonable hypothetical bystander is going to 23 think you've read this email. He or she may think you have 24 read it quickly, but they're going to think that you are a 25 very good - not a very good reader, but a person who is a 26 very quick reader, because that is another skill that most 27 successful lawyers have, and that even when reading 28 quickly, you pick up the salient points. 29 30 Could I then go forward to page 21. Just to remind 31 you, that was June. We now move forward to 12 August and 32 in the usual way of emails, Mr Burton, using the chain, 33 sends you the email at the top of the page, forgetting to 34 ask if your wife was coming, but in enclosing the chain, 35 what's happened is he has changed the title, but if you 36 look at the next email down the page on page 21, that has 37 the same title but this is the one which we don't have an 38 original of. That's right. The way this seems to work, 39 I'm sorry, Commissioner, I've got myself confused, is that 40 Mr Burton has sent two emails two minutes apart and it 41 would seem that your assistant has printed them off as one, 42 and that is why we don't have a standalone copy of the one 43 at the bottom of the page. I'm told that there is now the 44 standalone email. It doesn't matter. They were obviously 45 both given to you, it would seem, inferentially, that you 46 received them in this way. 47


1 Let's look at the two emails. The one at 11.12, the 2 first one, says that he's enclosing the information for 3 your reference, but nowhere on the document does it suggest 4 that there was an enclosure, and we can infer by reference 5 that no inclosure was produced by the Commission; that 6 Mr Burton forgot to do the thing that he said he was doing, 7 and the invitation wasn't enclosed. Mr Stoljar will tell 8 me if I've got that wrong. I will proceed. 9 10 Apparently what has been produced today does have 11 produced with this email the invitation which I have to say 12 surprises me because usually you can tell on emails whether 13 there is something attached to it, but there you have it. 14 It would seem that we can proceed on the basis that 15 Mr Burton in fact did manage to attach it. 16 17 You've got the invitation again but importantly what 18 the email says is he's giving you a running sheet and then 19 the second paragraph: 20 21 The NSW Attorney ... 22 23 This is in August of this year, if you read on: 24 25 ... has kindly agreed to give [you] a brief 26 note if she ... 27 28 There has only been one New South Wales Attorney who is a 29 lady and we know she's a liberal, but anyway, the Liberal 30 Party is in power in New South Wales, so we know that the 31 New South Wales Attorney was a liberal. Then we can skip a 32 paragraph. The poor old Bar News seems to have missed out 33 as a result of all this process, but I am sure Mr Stoljar 34 can cope. 35 36 The next paragraph: 37 38 As you know, although nominally under the 39 auspices of the Liberal Party lawyers' 40 professional branches, this is not a 41 fundraiser - the cost charged is purely to 42 cover dinner including our guests and a 43 small contingency for fixed costs in case 44 of a numbers collapse (which doesn't look 45 like happening at present!) although of 46 course people will disclose it if they go 47 over the State donation limit. It is not


1 open to the media. I shall compere 2 questions and there won't be any on the 3 Royal Commission. 4 5 Pausing there, we tried to identify why the 6 hypothetical observer or, indeed, anyone reading this 7 letter would be a little bit confused by reading that 8 paragraph, because, on the one hand, the first thing 9 Mr Burton does is he reminds you that it is under the 10 auspices of the Liberal Party Lawyers Professional Branch. 11 12 The second thing he says is it is not a fundraiser. 13 14 The third thing he says is that people paying money to 15 come along will disclose if they go over the State donation 16 limit. That is the State donation limit, obviously enough, 17 for political donations. 18 19 So there is a contradiction apparent on the face of 20 the document between the proposition that this is not a 21 fundraiser, but that people who come along will have to 22 disclose what they have paid if they're over the limit. 23 24 It seems inferentially, and perhaps this is what the 25 bystander might think, that Mr Burton is now a little bit 26 concerned as to whether it is appropriate for you to be 27 attending in circumstances where the Commission is 28 continuing, but he couches it in a very unusual way. In 29 other words, he doesn't say what I just said. Perhaps that 30 is the consequence of the position you hold and the way 31 people deal with you, but in a roundabout way - well, let 32 me say what he says. He says: 33 34 In the absence of hearing from you we have 35 proceeded on the basis you are happy to go 36 ahead even though the Commission is still 37 in hearing (not expected when originally 38 arranged) and thought ... 39 40 That is the "we": 41 42 ... it presumptuous to do other than leave 43 that up to you. If however a problem 44 emerges at the last moment then people will 45 I am sure understand. 46 47 He might have said, "Hey, Dyson, remember originally you


1 weren't going to do this if the Commission was still 2 going?", or he might have said, "Have you thought about 3 whether there would be a problem coming along to this 4 event?", even though he has just told you it is not a 5 fundraiser, but he doesn't do that; he couches it in that 6 rather odd way. 7 8 If you move forward then, I think, to 13 August, which 9 is at page 24, you respond. It is the next day at 9.23. 10 I'm so sorry, I said you responded. It is Barbara which, 11 I think, is Ms Price. 12 13 Dear Mr Burton, 14 15 I am replying to your email dated 12 August 16 on Mr Heydon's behalf. 17 18 He will not be accompanied to the dinner. 19 20 He does not wish to answer any questions 21 after his address. 22 23 Pausing there, obviously you're coming. Subject to what 24 follows, you're coming without anyone coming with you, and 25 you don't want to answer any questions, you are just going 26 to give the address: Then: 27 28 If there is any possibility ... 29 30 And those words are in bold: 31 32 ... that the event could be described as a 33 Liberal Party event, he will be unable to 34 give the address, at least whilst in the 35 position of Royal Commissioner. 36 37 I think we've used the word "bewildered" in relation to the 38 reasonable bystander's state of mind at this point of the 39 chronology because obviously the event could be described 40 as a Liberal Party event. When I say "obviously", it is 41 obvious from the email that this responds to which we've 42 just looked at. It is at page 24, but that is the same 43 email that we just went through at page 21, and it spells 44 out absolutely clearly that whatever else this is, it is a 45 Liberal Party event, and then it's got "but it is not a 46 fundraiser but if people pay money they might have to give 47 donations".


1 2 We pose for consideration the fact that the 3 hypothetical observer would be saying to him or herself at 4 this moment, "Well, what's going on? Why does Ms Price, on 5 behalf of Mr Heydon, ask Mr Burton if there's a possibility 6 that the event could be described as a Liberal Party event, 7 in circumstances where the day before he has been told it's 8 a Liberal Party event and, anyway, from April 2014 through 9 to 13 August, he has been told over and over again that it 10 is a Liberal Party event, and he has been told that it is a 11 fundraiser because he has been given the invitation." 12 13 Then we move forward to page 28. We are now at 11.22 14 on 13 August, and what we don't have is any evidence that 15 casts any light as to what, if anything, happened between 16 9.23am on 13 August and 11.22 on 13 August. One could 17 speculate, but it would be nothing more than speculation 18 and, therefore, in our submission, the proper way to 19 approach it is the hypothetical observer would not know and 20 would be mystified because all he or she could do would be 21 to speculate. You really can't draw any inferences from 22 any of the surrounding circumstances. 23 24 So what happens is the media department of the 25 Commission issues a press release, or what used to be 26 called press releases, I think they're called something 27 else now, media releases, which says: 28 29 The Commissioner, Dyson Heydon, will not be 30 delivering the Sir Garfield Barwick 31 address. 32 33 An interesting thing for the general public to know. One 34 would have thought the general public had no idea you were 35 giving the Sir Garfield Barwick address and would perhaps 36 wonder why they were being told that, and then the public 37 is told through the media: 38 39 As early as 9.23 this morning (and prior to 40 any media enquiry being received) ... 41 42 I'm sorry, I should pause there. From those words in 43 parentheses, one can infer that between 9.23 and 11.23 44 there was a media inquiry received by the Commission. 45 "He", that is you: 46 47 ... he advised the organisers that "If


1 there is any possibility that the event 2 could be described as a Liberal Party event 3 he will be unable to give the address, at 4 least whilst he is in the position of 5 Royal Commissioner. 6 7 We have made the position that the hypothetical 8 observer might think that that statement might be 9 misleading because literally of course it's true, at 9.23 10 that morning, you had advised the organisers of those 11 words, but read in context, it could be said or thought to 12 be misleading because, in fact, when you look at the 9.23 13 email at page 24, the only sensible reason was you were 14 coming, and you were asking Mr Burton to tell you if there 15 was any possibility of the event being described as a 16 Liberal Party event, you wouldn't be able to come. 17 18 So the hypothetical observer would think, "Well, 19 what's going on? That is not what he said at 9.23 other 20 than literally. In fact, at 9.23, he made it quite clear 21 to Mr Burton that, subject to that matter, he was coming", 22 and they might also think, "Well, he told Mr Burton or does 23 Mr Burton find out via the media?", and certainly we know 24 that Mr Burton wasn't told by any email or documentary 25 communication. So the hypothetical observer is confused, 26 perhaps even confounded. 27 28 At 3.11pm on that same day, a second media release 29 emerges from the Commission which sets out the first one, 30 and then says: 31 32 In answer to media enquiries, and to put 33 the words quoted above in context, the 34 Commissioner is releasing an email exchange 35 of 12 and 13 August 2015 regarding the 36 Sir Garfield Barwick address. 37 38 So the hypothetical observer looks at those two emails 39 which he or she of course has already seen in this strange 40 hypothetical world that we have to try and get our heads 41 around, and immediately his or her concern that the earlier 42 media release might have been misleading in the way I've 43 described is allayed because everyone through the media is 44 being shown the full context of the 9.23 email, but having 45 had his or her concerns allayed at that point, immediately 46 he or she notices another problem because he might think - 47 and in our submission he would be entitled to think - the


1 release of those two emails puts the earlier media release 2 in a context, but if the suggestion was that these two 3 emails put that media release in its full context, that 4 would be misleading, you might think. 5 6 The reason I say that is that if all one looks at is 7 those two emails and the media releases, one might be 8 forgiven for thinking that the first time you had any 9 inkling that this might be a Liberal Party event was 10 sometime around August 2015, which is just not true. You 11 have always known, the hypothetical observer would think, 12 that he has always known it was a Liberal Party event. He 13 has known that from April 2014. 14 15 Mr Burton, subject to his problems with grammar, has 16 actually gone out of his way to make it clear over and over 17 again that it was a Liberal Party event, and he's given him 18 the invitation which makes it clear that it is a 19 Liberal Party fundraiser although Mr Burton apparently 20 asserts it is not, but anyway, the Commissioner knows the 21 people coming along who pay money will be obliged under the 22 law of New South Wales to declare that money, and so if the 23 hypothetical observer was speaking out loud, he or she 24 would be very concerned: "What is going on? Why is the 25 Commission not putting the reason that Mr Heydon is not 26 giving this address in its full and proper context? And 27 why is Mr Heydon not telling everyone else" - because, of 28 course, this hypothetical observer, he or she knows all 29 these otherwise private facts, he or she knows of the 30 emails and communications that have gone backwards and 31 forwards. The people reading the media release in the 32 media, they don't know any of that. All they know is there 33 have been two media releases and they have been shown two 34 emails. So the hypothetical observer would be saying to 35 him or herself, "What is going on? Why aren't the public 36 being told the full picture? Why is it being suggested 37 that Mr Heydon has only just found out that it is possible 38 this could be a Liberal Party event when he has always 39 known it was a Liberal Party event?" 40 41 That concludes what we call in our submissions the 42 objective evidence. 43 44 Can I just use that as a tag because in this unusual 45 application we then have, which we do accept is relevant 46 evidence, what you said from the Bench on Monday of this 47 week which is set out from about line 17 on page 11 of the


1 transcript of that day through to precisely line 25 on 2 page 14. 3 4 We have tried to work out whether there is any clear 5 law on what is the status of what you said. What the cases 6 tell us - and what I am going to say is the answer is not 7 clear - is that there is a thing well-known to the area of 8 these type of applications called a correcting statement. 9 It is mentioned by the High Court, I think, in the Johnson 10 & Johnson case which we have given you a reference to at 11 page 96. 12 13 The High Court doesn't put this qualification on it, 14 but every case we have been able to find where the 15 correcting statement has been given and taken into account 16 in the decision has been those classic cases where it is 17 alleged against the judicial officer that he or she has 18 prejudged because they've gone overboard in what is usually 19 described in the judgments as "robust debate", often with 20 counsel, where it is suggested that they have so 21 emphatically stated a position on a fact in issue that they 22 have got to the stage where they prejudged, and then there 23 are those statements, which I think we're all very familiar 24 with, to the effect that, "Well, of course, everyone 25 understands that was just me engaging in Socratical 26 dialogue, it is the way I resolve cases and, of course, 27 these are all just preliminary views, I have not made any 28 final judgment at all, even though it might have sounded 29 like I had." So we all understand that. But this is not 30 one of those cases. 31 32 This is a case where we rely on the events that I've 33 just been through, and the inferences that can be drawn 34 from those events to found our application. 35 36 We cannot find a case where a correcting statement or, 37 as you called it, a contextual statement from a judicial 38 officer has been referred to, but there's nothing in 39 Johnson & Johnson that says it can't be, and may 40 I therefore make this submission as to its proper status in 41 the conspectus of facts before you. 42 43 Firstly, it is admissible as evidence but not evidence 44 of the fact; that is, it doesn't become evidence that you 45 can take into account that what you say actually occurred, 46 or what you did or didn't do, you did or didn't do, but it 47 becomes evidence that it was said in open court and,


1 therefore, becomes another fact that the reasonable 2 hypothetical bystander knows and takes into account when 3 coming to his or her ultimate conclusion, but it is not 4 determinative. There is nowhere, and nor could it be right 5 as a matter of principle, that any application of this kind 6 is simply trumped by a statement from the Bench as to what 7 in fact happened. 8 9 It must be that the hypothetical observer is then 10 taken to consider that explanation and factor it into all 11 the facts because, of course, I accept that whilst what we 12 have been doing in going through the chronology is setting 13 out at each point in time where we think the hypothetical 14 observer would be up to in terms of what they think is 15 going on, it would be to go down a path towards error to 16 continue to take that too far because ultimately, like all 17 decision-makers, the hypothetical observer, having got in 18 all the facts, then sits back and reflects on everything he 19 knows; we would suggest including his various states of 20 mind as things have unfolded. So including the fact that 21 at various times he has been very confused, perplexed and 22 bemused as to what is going on, that he has noticed all 23 these inconsistencies in documents and the like, but he 24 doesn't accept this uncritically. 25 26 He of course knows that it is not on oath, and he of 27 course knows it is not the subject of being tested in the 28 cauldron of cross-examination, but he also knows that it 29 comes from you, so he is going to give it some weight, and 30 we would expect him to, but he is going to assess it 31 against the objective facts that he does know happened, the 32 probabilities, and come to a conclusion as to how plausible 33 it is and, equally, he's going to be very careful - I've 34 slipped into calling him "him", nothing in the cases 35 suggest this person is a man - he's going to be very alert 36 once a judicial officer has made an explanation as to what 37 hasn't been said. 38 39 May I go then to deal with this at paragraph 89. We 40 have sought to pull the eyes out of what you said and we 41 think it comes down to three points. 42 43 You overlooked the connection between the person or 44 persons organising the event and the Liberal Party which 45 had been stated in the email of 10 April 2014. Without 46 being rude, may I respectfully suggest that "overlooked" 47 means forgot; that is certainly as we read it. So it tends


1 to suggest that in March 2015, you forgot that you had been 2 told it was a Liberal Party event in April 2014. It 3 doesn't say that at all the points that I've just 4 identified between April 2014 and March 2015, when you'd 5 been told that it was a Liberal Party event, over and over 6 again, that you overlooked or forgot any of those 7 statements. 8 9 The second thing you said was that you forgot, if 10 I may be so bold, the fact that you had an agreement, 11 whether it be a tacit agreement to speak in April 2014 12 conditional on the work of the Commission being completed 13 before that time. So much may be accepted. It is obvious 14 from the emails, and it is equally obvious that Mr Burton 15 forgot. 16 17 But it really doesn't come to grips with the 18 fundamental problem which is, "Well, so what if you forgot 19 about that agreement or condition that had been struck in 20 April 2014." You have had so many opportunities to impose 21 the condition again, which is, indeed, what happened when 22 you pulled out of the address. You reimposed the 23 condition. It doesn't say why, in all the period during 24 that year, when you knew it was a Liberal Party event, you 25 didn't reimpose the condition. 26 27 Then you talk about the 12 June email, which we've 28 looked at. It is at page 17 and you say that you glanced 29 at that, you only noticed the time, date and place. By 30 implication you are saying that you missed the title to 31 both emails, you missed the title to the 12 June one: 32 33 Liberal Party of Australia Lawyers' Branch 34 and Legal Policy Branch. 35 36 And you missed the title to the other email: 37 38 Barwick invitation - State doc donation 39 compliance document. 40 41 But you don't say that you missed the fact that you had 42 been told that it was a Liberal Party function repeatedly 43 in all the other correspondence we've looked at, and so the 44 natural inference that the hypothetical bystander would 45 draw; that is, that you would read and understand your 46 emails, is actually confirmed by what you didn't say in the 47 relevant context.


1 2 The next thing we think is telling is that at all 3 times the Commissioner's understanding was that the dinner 4 was not to be a fundraiser. Our first submission is so 5 what? It just confirms again that at all times you did 6 understand it was a Liberal Party event, and secondly, it's 7 completely out of kilter with all of the documents we've 8 looked at. 9 10 Where does that leave us, if I may conclude? We have 11 set this out at page 22 of our written documents. 12 Reminding you, if I may be so bold, of the double might 13 test: low threshold. Might the fairminded observer think 14 that you might not bring an impartial mind to the 15 resolution of the issues of the Commission in circumstances 16 when he knows that you were at all times prepared to speak 17 at what you knew was a Liberal Party event. He is confused 18 as to why it is that you say you never understood it was a 19 fundraiser because it is out of kilter with what he would 20 expect of a person with your reputation, that is, it is 21 blindingly obvious from the emails you were sent, so he is 22 confused about that. He is not necessarily going to reject 23 what you've said but he just finds that perplexing, 24 unusual; in lawyer-speak, improbable or implausible. 25 26 He also knows - and this is important when you look 27 at, for guidance, any other cases and I would suggest that 28 that is dangerous because these are quintessentially cases 29 that turn on their own facts - of the extraordinarily 30 highly-charged public political nature of this Commission. 31 He knows that this is red-hot in political terms and yet, 32 he knows that you for a year were quite happy to lend your 33 name to an event of the Liberal Party, albeit, for a large 34 part of that time, at a time after the Commission concluded 35 and that for a significant period this year you were, 36 indeed, prepared to speak when the Commission was 37 continuing in circumstances where you most definitely knew 38 it was a Liberal Party function. 39 40 He also knows - to go back to my first point - that 41 remains your stated position even though without a shadow 42 of a doubt you now know it's a Liberal Party function that 43 is a fundraiser. 44 45 In our respectful submission, he would be left in a 46 state of doubt sufficient to think that you might not be 47 able to bring an impartial mind to these highly sensitive


1 matters and I don't even need to go that far. I've just 2 made the submission leaving out the first "might" of the 3 test. I only need to go as far as to persuade you that he 4 might find himself in a position of apprehending reasonably 5 that you might not bring an impartial mind to the 6 resolution of the question. 7 8 We could debate, if you were in a debating frame of 9 mind, whether I've persuaded you of some higher level of 10 subjective state of mind in this hypothetical person, but 11 it is irrelevant. It is the test that I just stated and in 12 my respectful submission an understanding of the full 13 gravity of the consequences that follow from such a 14 finding, which for reasons I've explained, as a matter of 15 law, are wholly irrelevant, you're really compelled to make 16 that finding which compels the result. 17 18 I will just conclude by saying this, that we haven't - 19 and I will take full responsibility for this - spent enough 20 time thinking about appropriate relief. Also, I haven't 21 addressed you on the ACTU's standing and I should say -- 22 23 THE COMMISSIONER: I wouldn't bother about that. 24 25 MR NEWLINDS: I was about to make a concession. I can't 26 think of a sensible -- 27 28 THE COMMISSIONER: There are plenty of other people. 29 30 MR NEWLINDS: There are, yes. Leaving the ACTU to one 31 side, I act for a number of unions. Their application is 32 that you not proceed with the inquiry insofar as it affects 33 them, but that is all they can seek. 34 35 THE COMMISSIONER: That simply would mean that your relief 36 as framed in 115 is a little too wide. 37 38 MR NEWLINDS: It does. 39 40 THE COMMISSIONER: It would be quite wide because of the 41 seven or so unions that -- 42 43 MR NEWLINDS: Yes, but what I was about to say though is 44 there is then a question as to whether you can unscramble 45 the scrambled egg. I don't know and I don't pretend to 46 know enough about the inquiry, the way it is structured and 47 even what in particular you're investigating into. If it


1 is possible to proceed with other parts of the inquiry well 2 then I can't, on behalf of my clients, make any submissions 3 that you should not do so, but ultimately, of course, if 4 I've made good my submission which is not to do and is not 5 based on the individual unions that I appear for, it's 6 based on the union movement generally, if I've made good 7 that submission, and that is the only submission I've made, 8 then it would really seem to follow that you can't proceed. 9 Those are my respectful submissions and thank you for 10 dealing with it with so much courtesy. 11 12 THE COMMISSIONER: Yes. Mr Agius? 13 14 MR AGIUS: Commissioner, with the exception of the very 15 last submission my learned friend made carving out parts of 16 the jurisdiction, in effect, afforded by the 17 Letters Patent, with the exception of that submission, we 18 embrace and support my learned friend's submissions and 19 I say that with great respect to him. The reason why we do 20 not adopt that part of his submissions is that, in our 21 respectful submission, the fairminded lay observer's 22 observations in this matter would be such that there would 23 be no part of the inquiry that would be untouched by a 24 finding of a reasonable apprehension of bias and that once 25 you reached that position, Mr Commissioner, that there is a 26 reasonable apprehension of bias that there would be no part 27 of the inquiry that could continue which would not be 28 infected by such a finding. 29 30 Otherwise, we embrace my learned friend's submissions, 31 indeed, we're indebted to them. They replicate, in other 32 words, much of what we put in our own and I do not propose 33 to repeat what we have in our written submissions. We rely 34 upon the written submissions. 35 36 Mr Commissioner, you will have seen a bundle of 37 material which was tendered this morning. Its purpose is 38 merely to establish a nexus between the prejudice that 39 arises because the function in this case was a 40 Liberal Party function and the work of the Commission. 41 I don't want to spend any time on this, but in our 42 respectful submission one needs to look at the context of 43 the Commission, one needs to look at the context of the 44 inquiry. Like it or not, this Commission is dealing with 45 matters which are politically sensitive on both sides of 46 Parliament, the conservative side and the Labor side, and 47 the work of this Commission has been embraced by the


1 Liberal Party in government. It is proud and is said to be 2 proud of the fact that it has established this 3 Royal Commission and there is a clear inference available, 4 in our respectful submission, on the material that 5 Mr Commissioner you have lent your support to the 6 Liberal Party and that would indicate, in our respectful 7 submission, a clear link between the bias, that is, the 8 apprehended bias that we allege is available and the work 9 of this Commission. 10 11 What I do want to spend some time on and hopefully not 12 very much time is on what we regard as a very significant 13 matter that has occurred since our written submissions were 14 completed and which has arisen following our written 15 request to the Royal Commission yesterday for material and 16 the provision of that material by the Royal Commission 17 yesterday. 18 19 Here I am speaking of ACTU MFI-6, a request from 20 Slater & Gordon on behalf of the CFMEU for clarification 21 and for the provision of documents and the reply by the 22 Royal Commission providing additional material which had 23 not before been provided. 24 25 Mr Commissioner, I commence with the statement that 26 was made by the Commissioner in this hearing room earlier 27 this week. At line 29 on page 13, Mr Commissioner, you 28 said: 29 30 On 12 June 2015 I received an email from 31 the organiser to which was attached a copy 32 of the invitation to the address, that 33 being a three-page document, as I say, 34 attached to the email, a one-page document. 35 In the usual course, my personal assistant 36 printed out a copy of the email and the 37 attachments and provided them to me. 38 I glanced through the email noting the 39 date, time and place of the dinner. I did 40 not read the attachments, having noted in 41 the one-page email of 12 June that I was to 42 be the guest of the organisers. 43 44 Following 12 June I was deeply engaged in 45 Commission business. I did not give any 46 consideration to the Sir Garfield Barwick 47 Address. I did not prepare a written


1 paper. I did prepare rough notes which 2 I have produced pursuant to the requests of 3 the applicant in its letter of today's date 4 which is ACTU MFI-1. 5 6 Then you go on, Mr Commissioner, to say: 7 8 On 12 August 2015 the coordinator of the 9 Sir Garfield Barwick Address sent me an 10 email which has previously been released by 11 the Commission. I was engaged either in 12 hearings or in other duties until the 13 following morning. At that time I caused 14 my personal assistant to send an email 15 which included the following words: 16 "If there is any possibility" - those two 17 words emphasised - "... that the event 18 could be described as a Liberal Party 19 event, he will be unable to give the 20 address at least whilst he is in the 21 position of Royal Commissioner." 22 23 And for completeness, you go on to say: 24 25 Shortly after the dispatch of that email it 26 was made plain that I would not be giving 27 the address. 28 29 In that part of the statement you refer to an email which 30 has previously been released by the Commission. We take 31 that email to be behind tab 14 of ACTU MFI-2. At page 29 32 of the bundle there is an email from Adrian Kerr which was 33 sent on Thursday, the 13th, at 3.11pm. It has attachments, 34 12 and 13 August emails, as PDF copies, and it reads: 35 36 The Commission's media statement this 37 morning was issued in the following terms: 38 39 The Commissioner Dyson Heydon will not be 40 delivering the Sir Garfield Barwick 41 address. 42 43 As early as 9.23 this morning (and prior to 44 any media enquiry being received) he 45 advised the organisers that "If there was 46 any possibility ... 47


1 Again, in bold: 2 3 ... that the event could be described as a 4 Liberal Party event he will be unable to 5 give the address, at least whilst he is in 6 the position of Royal Commissioner. 7 8 In answer to media enquiries, and to put 9 the words quoted above in context, the 10 Commissioner is releasing an email exchange 11 of 12 and 13 August 2015 regarding the 12 Sir Garfield Barwick address. 13 14 Email addresses have been redacted. 15 16 Then as attachments to that email there are two emails. 17 One is the email, that we're very familiar with, from 18 Barbara Price in which she replies to an email dated 19 12 August on your behalf, Mr Commissioner, indicating: 20 21 He will not be accompanied to the dinner. 22 23 He does not wish to answer any questions 24 after his address. 25 26 And then the statement which we've heard twice now in this 27 reading: 28 29 If there is any possibility that the event 30 could be described ... 31 32 Et cetera, he will be unable to give the address. The 33 second email that was released was the one from Mr Burton 34 of 12 August 2015 at 11.12am and the subject is included: 35 36 Final arrangements Barwick dinner address 37 26 August 2015. 38 39 What we do not see anywhere in ACTU MFI-2 is the full email 40 of 12 August 2015 that was sent at 11.12am. That was the 41 subject of the correspondence that was tendered this 42 morning and when we go to that correspondence we see the 43 email of 12 August 2015 at 11.12am, but it has one 44 additional line which is not included in the email of that 45 time and that date at tab 14 of ACTU MFI-12, the documents 46 produced by the Commission on Monday, and that line is the 47 line which reads:


1 2 Attachments: Barwick Invitation - 3 August 2015 (1).docx; State Donation 4 Compliance.docx 5 6 And then we see the rest of the email. There is no 7 explanation as to how it might be that an exact copy of 8 that email, absent the reference to "Barwick Invitation - 9 August 2015" and "State Donation Compliance", has an 10 annexure or an attachment that can be found in ACTU MFI-2 11 and why it is that this email appears in a different form 12 absent that line of information in MFI-2. Beyond that, the 13 document produced yesterday in response to the CFMEU's 14 request through Messrs Slater & Gordon includes the email 15 from Robert Carey of 12 August 2015 at 10.58am, which 16 includes as its subject, "[Forward] Liberal Party of 17 Australia (NSW Division) - Lawyers' Branch and Legal Policy 18 Branch", which again makes plain that the event was a 19 Liberal Party function. 20 21 The first of these emails in the material produced 22 yesterday makes clear that connected with the invitation to 23 the Barwick lecture was a state donation compliance 24 requirement which clearly identifies the function as one 25 which might be called a fundraiser. 26 27 The fairminded observer, in our respectful submission, 28 would very likely conclude that if the Commissioner was 29 able to, in his glancing or reading of the email, see that 30 it was from the organiser, that it was addressed to him, 31 that it referred to the final arrangements for the Barwick 32 dinner address on 26 August, that is also referred to state 33 donation compliance. 34 35 The fairminded observer would, in our respectful 36 submission, have serious concern as to why it was that this 37 email, which was produced yesterday, and the form in which 38 it was produced, didn't find its way into ACTU MFI-2 and 39 that the copy of it which did find its way into that bundle 40 deleted the reference to attachments and the information 41 that follows the word "attachments", and the email which 42 followed that, that is, the email from Robert Carey of 43 12 August 2015, 10.58am, was also not attached to the 44 12 August 2015 email that forms part of the MFI. 45 46 In our respectful submission, the omission to include 47 the email that was provided yesterday and the form in which


1 it was provided has great significance on the question of 2 the opinion of the fairminded observer. We submit - and 3 I think it is beyond any doubt - that the fairminded lay 4 observer would apply commonsense that she would be entitled 5 to draw inferences from facts disclosed but not just from 6 facts disclosed, but also from the fact of non-disclosure 7 or incomplete disclosure or disclosure which was of itself 8 misleading. 9 10 As an objective fact it is apparent that the 11 disclosure was in fact misleading. In the statement made 12 on 17 August, which I've just read, the Commission spoke of 13 putting matters in context. At page 11, Mr Commissioner, 14 you said: 15 16 I wanted to give just some contextual 17 background to the material which has been 18 marked ACTU MFI-2. 19 20 And then you, Mr Commissioner, went on to give the address 21 that we read in the transcript at pages 11 and following, 22 in the course of which you indicated that you'd overlooked 23 the connection between the persons organising the event and 24 the Liberal Party and that you also overlooked that your 25 agreement to speak at that time had been conditional on the 26 work of the Commission being completed at that time. 27 28 You go on to speak of the emails of 12 June 2015 and 29 at the bottom of the page you refer to "an email" from the 30 co-ordinator which you say has previously been released by 31 the Commission. In respect of that email you say that you 32 caused your personal assistant to send an email which 33 included the following words "... if there is any 34 possibility that the event could be described as a Liberal 35 Party event." 36 37 The fairminded observer, now in possession of the 38 version of the email from 12 August at 11.12am, would now 39 know that that email made it plain that the event involved 40 the concept of a donation and that, together with the 41 information that the event was a Liberal Party event, 42 would, in our respectful submission, give the fairminded 43 observer cause for concern that the information that was 44 released on 17 August was accurate. 45 46 Concern that the information that was released was at 47 best a partial disclosure, if not a disclosure of a


1 doctored document which had been edited to remove the 2 reference to "State Donation" and also would be concerned 3 about the incomplete disclosure, the independent fairminded 4 observer, would, in our respectful submission, have great 5 concern as to the claim that you, Mr Commissioner, had not 6 recalled the earlier caution that you had expressed in 7 April of 2014 and would be concerned that this email of 8 12 August at 11.12 really makes unacceptable the context 9 that is put forward for the email that is referred to at 10 the top of page 14 in which your assistant, 11 Mr Commissioner, was asked to send an email if there is any 12 possibility that the event could be described as a Liberal 13 Party event. 14 15 The fairminded observer would, not just might but, in 16 our respectful submission, would on the balance of 17 probabilities conclude that it was disingenuous for the 18 writer of that email at this late hour, that is, 24 hours 19 after the receipt of the email on 12 August, to suggest 20 that there was any doubt about whether there was a 21 possibility that the event could be described as a Liberal 22 Party event. 23 24 There is some authority which we pray in aid on this 25 point. I apologise for none of this being in our written 26 submissions but it only emerged when we received the 27 material from the Royal Commission yesterday. It is the 28 decision of the Full Court of the Federal Court of Gaisford 29 v Hunt and Another which is reported at (1996) 71 FCR 187. 30 I have a copy for my friend. I have another five copies 31 which we will pass around. 32 33 This was a matter which involved facts in a fairly 34 limited spread. Mr Hunt had been appointed to conduct an 35 inquiry. He decided that the inquiry might benefit from 36 some press publicity. He had an off-the-record interview 37 with a journalist which led to the publication of an 38 article on 28 August containing numerous references to the 39 views of the inquiry. 40 41 He was asked to make a public comment about the 42 article on the next day and he did so and he said that he'd 43 reached no conclusions whatsoever on any aspects of the 44 Terms of Reference, but he did not reveal that the article 45 had at its source the off-the-record interview with him. 46 47 At first instance the primary judge upheld the


1 submission of Mr Hunt that he'd not expressed any 2 conclusive view in his off-the-record comments and that 3 therefore the claim of apprehended bias, or ostensible bias 4 as it's referred to in this case, could not be upheld. 5 6 The matter went to the Full Court before 7 Justices Beaumont, O'Loughlin and Lehane. Their Honours 8 formed a different view about whether or not the 9 off-the-record comments expressed a concluded view or 10 satisfied the apprehended bias test in relation to whether 11 or not the inquirer had a concluded view. Then their 12 Honours said at the bottom of page 202: 13 14 But the matter does not end with the tenor 15 of the article. As we have said, the whole 16 of the circumstances should be taken into 17 account. They include first, the fact that 18 an "off the record" briefing to a 19 journalist was provided by a person in 20 Mr Hunt's position ... 21 22 That is not relevant for present purposes, Mr Commissioner. 23 The next portion is: 24 25 ... and secondly the failure by Mr Hunt to 26 make, immediately, a full and true 27 disclosure, when challenged about the 28 article, of his conversation with the 29 journalist and its circumstances. In our 30 view, these considerations must exacerbate 31 any reasonably held apprehension of bias 32 arising from the comments made in 33 'The Canberra Times'. 34 35 They were the comments that reflected the off-the-record 36 conversation. The words we point to are, as their Honours 37 said, "the failure by Mr Hunt to make, immediately, a full 38 and true disclosure, when challenged about the article". 39 40 In our respectful submission, to the extent to which 41 what was said on 17 August might satisfy the description of 42 a disclosure, it is with great regret that I'm compelled to 43 make the submission that it was neither full nor complete. 44 Indeed, as I've already said, in our respectful submission, 45 the fairminded lay observer would be entitled to draw 46 adverse inferences on the question of the state of 47 knowledge of the Commissioner from the facts which were not


1 disclosed either on 17 August or in the release that was 2 made and which can be found at tab 14 of the bundle, 3 ACTU MFI-2. 4 5 Mr Commissioner, as I said, I won't read our written 6 submissions, nor will I refer to them in any length, but, 7 in our respectful submission, that is a very significant 8 matter to be put into the balance for the attention of the 9 fairminded observer. It can be added to the matters we 10 have listed in paragraph 62 of our written submissions. 11 12 Not only might a fairminded observer reasonably 13 apprehend that the Commissioner was made aware that the 14 event was a Liberal Party event when he was first invited 15 to give the address, but also that it was not likely that 16 he would have forgotten that fact. I can expand that 17 paragraph as follows. It would be apparent to the 18 fairminded observer that one of the first thoughts that 19 came into the Commissioner's mind when he was asked in 20 person, that is, orally, in April of 2014 if he would 21 consider giving the address was to recognise a conflict of 22 interest. That was one of the first things that must have 23 come into the Commissioner's mind because as the 24 Commissioner says in his statement, you indicated that you 25 would not do that whilst the Commission was still sitting. 26 27 As an exquisitely experienced lawyer and judge it is 28 not unnatural that that would have entered the 29 Commissioner's mind at that time, but that same exquisitely 30 experienced mind, the fairminded observer might think, 31 could not thereafter overlook that very important fact and 32 yet, fundamental to the explanation or statement given on 33 17 August was that that was overlooked. 34 35 The fairminded observer might think, "Well, that's 36 fair enough if that conversation occurred in isolation. 37 The man was after all very, very busy." However, shortly 38 after that conversation, if not the next day, an email is 39 received which makes it plain that the event is a 40 Liberal Party event and then there are four or five emails 41 over the next 18 months which also make it very plain that 42 the event was a Liberal Party event and some of those also 43 make it plain that the event attracts the issue of 44 donations and that therefore it was likely to be a 45 fundraiser. 46 47 It just may beggar the belief of the fairminded


1 observer that the Commissioner's recollection that 2 something had been overlooked is not reliable and that it 3 is unlikely that such a matter would have been overlooked 4 in circumstances where it immediately came to mind the 5 first time the invitation was raised. 6 7 We also submit that the fairminded observer might 8 reasonably apprehend that the Commissioner was aware of the 9 conflict when speaking at a party-political function and 10 presiding over the Commission when he first responded to 11 the invitation in April 2014, indicating that he could do 12 so once the Commission had been completed, that the 13 Commissioner could not fail to recall or overlook the event 14 was a Liberal Party event at least from the time of the 15 receipt of the email from the organiser in April 2014, or, 16 if not then, in June of 2015, that the Commissioner was 17 willing to speak at a Liberal Party function and all that 18 that carried with it. We summarise that by saying that the 19 Commissioner would be prepared to allow himself to be 20 portrayed as a supporter of the Liberal Party and agreeing 21 to give the address concerning Sir Garfield Barwick at a 22 Liberal Party event could only be seen as in some way 23 supporting the Liberal Party, particularly if that party 24 had the capacity to attract donations to the party. 25 26 It should go without saying that the presence of a 27 retired High Court judge of such standing at a Liberal 28 Party function, speaking to lawyers, some of whom may not 29 be members of the Liberal Party, would be of great 30 political advantage to the Liberal Party and may of itself 31 convince or assist in persuading non-members of the party 32 to join that party or to make a donation. 33 34 In our respectful submission, the fairminded observer 35 is very likely to find that if you, Mr Commissioner, were 36 willing to speak at the Liberal Party function, that you 37 were also aware of the consequences of publicly portraying 38 your position as such. 39 40 Further, we have submitted that that fairminded 41 observer might reasonably apprehend that you, 42 Mr Commissioner, contrary to denials, in fact became aware 43 of the event as a fundraising event following the receipt 44 of the email of 12 June 2015, and we would add to that as 45 at the receipt of the email, which is not redacted or 46 altered, of 12 August 2015 at 11.12. 47


1 We would pray in aid what fell from the Full Bench of 2 the Federal Court, that a relevant matter to be taken into 3 account in these assessments is the fact that when first 4 released - actually, when the email of 12 August at 11.12am 5 was released, on two occasions it did not include any 6 reference to an attachment which clearly identified 7 donations as being relevant to the talk. 8 9 Those two occasions are the public release of the 10 email, which is the substance of tab 14 of ACTU MFI-2, and 11 then secondly, the release of that same email which the 12 fairminded observer would be entitled to conclude had been 13 edited to exclude the reference to attachments by this 14 Commission which is at tab 10 of MFI-2. 15 16 There is now on the record no explanation as to the 17 apparent editing of the email of 12 August at 11.12am. 18 There is no record of any explanation as to what effect, if 19 any, the reference in the attachment to "donation note" had 20 upon the Commissioner and there is perhaps an available 21 inference that the absence of any explanation in relation 22 to that is because there is in fact no explanation for it 23 consistent with a denial of knowledge of the true nature of 24 the event. 25 26 In our respectful submission, the test to be applied 27 here is no higher than the test enunciated by my friend 28 Mr Newlinds. If a fairminded lay observer might reasonably 29 apprehend that the Commissioner might not bring an 30 impartial mind to the resolution of the question, the 31 Commissioner is required to decide, in this case the 32 Commissioner is dealing not so much with one question but 33 with a series of questions and with a report which includes 34 recommendations about significant members of the trade 35 union movement in this country. It is a might-might test, 36 much has been written and said about that test, but we do 37 not bear the onus of proving that a fairminded lay observer 38 would reasonably apprehend that a judge, or in this case 39 the Commissioner, would not bring an impartial mind to the 40 resolution of the question. It is a much lower standard 41 than that and the matters we've outlined, in our respectful 42 submission, are all matters within the purview of the mind 43 of the fairminded lay observer. 44 45 There is just one more matter that we wish to add 46 above and beyond our written submissions and that is in 47 response to my learned friend Mr Stoljar's submission on


1 the issue of necessity. At paragraphs 27 and 28, my 2 learned friend deals with this point and he deals with it 3 in another context at paragraph 14. At paragraph 14 he 4 points to the significant differences between a 5 Royal Commission and a judicial proceeding. The finding of 6 a Royal Commission have no effect on legal rights and 7 obligations. The report which is produced is in the nature 8 of advice to the Executive which may or may not be 9 published and may or may not be acted upon. A 10 Royal Commission is not bound by the rules of evidence or 11 by procedural rules applied in courts. A Royal Commission 12 has an inquisitorial role which a judge does not have. 13 From these matters it follows that a Royal Commissioner is 14 permitted to take a more active, interventionary and robust 15 role in ascertaining facts and a less constrained role in 16 reaching conclusions than applies in court proceedings. 17 18 There is nothing about any of that that we would 19 contest. However, we would add in that a 20 Royal Commissioner has power to compel an answer to 21 questions and to deny a right to silence, that the 22 Royal Commissioner makes findings of fact only on the 23 balance of probabilities and that those findings of fact 24 can be hurtful if not utterly detrimental to the lives and 25 livelihood of many persons, be they union members or not, 26 that those findings of fact could go to the very heart of 27 the way in which industrial relations is managed in this 28 country. It is a question of looking at the full context 29 of this Royal Commission and part of that context includes 30 the politically charged nature of the material that this 31 Commission is examining. 32 33 In our respectful submission, the fact that this is a 34 Royal Commission is a very significant matter to be taken 35 into account in favour of the application. The submissions 36 we have made today are made with the greatest of respect 37 and one solid foundation for that respect is the very role 38 of Royal Commissions in a society such as ours. A 39 Royal Commission can be a resort that governments go to 40 when they are dealing with difficult problems. They can be 41 the subject of calls by members of the public. They have 42 enormous power, they are the most powerful investigative 43 tool in the country and they have a significant role in our 44 society. 45 46 If there is an apprehension of bias in relation to a 47 Royal Commission then that infects not just any possible


1 findings of that Royal Commission, whether they be 2 favourable or against any particular party, it infects the 3 whole role of Royal Commissions in our society and so what 4 you are confronted with, with the greatest of respect, 5 Mr Commissioner, is a question which is much greater than 6 the significance or the reputation of any one person. It 7 is a significant matter in relation to the conduct of 8 Royal Commissions generally and the extent to which the 9 State should be permitted to use extraordinary powers of 10 investigation in circumstances where there may be an 11 apprehension about the bias of the Royal Commissioner. 12 13 At the end of the judgment in Gaisford v Hunt the 14 Full Bench said at page 203, in the last paragraph, the 15 following: 16 17 The other observation is that we are, 18 of course, aware that the orders which we 19 shall make will have the result that an 20 inquiry which has already proceeded some 21 distance will be brought to a premature end 22 so that considerable time and resources 23 will have been wasted. It is perhaps to 24 state the obvious, however, to say that a 25 finding of reasonable apprehension of bias 26 can lead to no other result. 27 28 We raise that in response to something that fell from you, 29 Mr Commissioner, when this issue arose in the hearing room 30 and that was a concern about others, not union members or 31 the unions, who have given evidence before the Commission 32 and we infer that, Commissioner, you're referring to others 33 who might rightfully look for a judgment on those matters 34 from this Royal Commission. 35 36 In our respectful submission, if there is a reasonable 37 apprehension of bias then that judgment would have no 38 weight and that is the principle that stands behind that 39 statement of the Full Federal Court and as regrettable as 40 it would be that there are matters under investigation 41 where that investigation is not complete and when there is 42 further evidence to be called from a number of persons that 43 would not be able to be advanced by you, Mr Commissioner, 44 that is just the natural consequence of upholding a very 45 significant matter of principle concerning the reasonable 46 apprehension of bias. They are our submissions. 47


1 THE COMMISSIONER: Yes. Mr Borenstein? 2 3 MR BORENSTEIN: Thank you, Commissioner. We too have 4 filed written submissions and like our learned friends we 5 seek to rely on those submissions. We are indebted to the 6 written and oral submissions that have been presented by 7 Mr Newlinds and Mr Agius this morning and we would support 8 those submissions subject to what I'm about to say. 9 10 In relation to the matters that Mr Agius was dealing 11 with at the end of his oral submissions and, in particular, 12 the reference to paragraph 14 of Mr Stoljar's written 13 submission, where there is a discussion of the difference 14 between Royal Commissions and other judicial proceedings, 15 and the reference to the fact that the findings of a 16 Royal Commission have no effect on legal rights and 17 obligations, what is overlooked there is the recognition 18 which the High Court has given both in the Ainsworth case 19 and in Annetts v McCann to the interest in one's reputation 20 and the availability of protection against reputational 21 damage. One has seen in the proceedings of this Commission 22 over the last 18 months, or thereabouts, that that is a 23 very significant consideration that would apply in the 24 circumstances. 25 26 Perhaps to summarise what Mr Agius was putting, the 27 greater the power that is exercised by a tribunal, the 28 greater the need to protect those persons who are brought 29 before the tribunal. As Mr Agius said, and we agree, the 30 process of a Royal Commission is one of the most powerful 31 investigative and inquisitorial exercises that can be 32 undertaken under our law. 33 34 So far as the position of others who have come before 35 this tribunal with complaints about various forms of 36 behaviour is concerned, there is no judgment that can be 37 provided by this Commission for them. The Commission is 38 not charged with adjudicating on particular disputes and 39 that, perhaps, is the most significant difference between 40 the Commission and an ordinary judicial proceeding. Those 41 people have their remedies in other places, and if this 42 Commission finds that because of the apprehension of bias 43 that it cannot continue, then those people must be left to 44 those other remedies. 45 46 The other matter that we wish to address that was 47 raised by Mr Agius, and with which we also agree, is the


1 ultimate outcome of this application if the Commissioner 2 accepts that it is an appropriate case of apprehended bias. 3 4 Like Mr Agius, we see great difficulties in seeking to 5 isolate various parties before the Commission or even 6 various topics that have been ventilated by the Commission, 7 once there is a finding of apprehended bias of the kind - 8 of the kind - which has been advanced by the applicants 9 before you this morning. 10 11 It is bias which goes to an aspect of the Commission 12 which, as Mr Agius says, infects all of its inquiries into 13 all matters. That can perhaps be seen from the fact that 14 the Commission is charged with, among other things, making 15 recommendations to government about the future structure of 16 industrial laws in the country. 17 18 Other than those comments, Commissioner, we seek to 19 make some brief comments about the allegations arising from 20 the acceptance of the address of the Liberal Party 21 function. There has been much said in the materials and in 22 the submissions about whether the Commission was or wasn't 23 aware that this was a fundraising function. There has been 24 much said in the documents, and orally, about when the 25 function was to take place and whether the Commissioner was 26 aware, or remembered that the particular date that was 27 nominated was during the continuation of the Commission or 28 not. 29 30 We would submit that once the Commissioner accepted 31 the invitation to speak at a Liberal Party function in 32 April of 2014, or thereabouts, that the damage was done 33 then and there and that nothing changed thereafter. It 34 doesn't matter, once it's accepted, if it's accepted, that 35 the acceptance of the invitation to speak at a 36 Liberal Party function creates in the mind of the relevant 37 lay observer that there is an association between the 38 Commissioner and the Liberal Party. It doesn't matter when 39 that association is acted out in public. 40 41 If, for example, the Commissioner gave the speech at 42 the Liberal Party function a week after presenting the 43 report in this Commission, and if that was the first 44 occasion when the public were aware that the Commissioner 45 had accepted to present that speech 18 months or more 46 earlier, it would be open to the same sort of objection 47 which is being made today.


1 2 The vice is in the Commissioner being associated with 3 a political party, in circumstances where the Commissioner 4 has been asked and appointed to carry out an inquiry which 5 has a very substantial political aspect to it. 6 7 In a sense, the discussion about whether in early 2015 8 the Commissioner remembered about the date on which the 9 talk was to be given, or remembered that there had been a 10 proviso that it wouldn't be given until the Commission was 11 concluded, is not central to the inquiry. What is central 12 is whether there is evidence which shows that the 13 Commissioner has associated with the Liberal Party; then 14 the Commissioner has been charged to carry out a 15 Royal Commission which has a very substantial political 16 aspect to it. 17 18 On top of that, even in the email of 13 August, the 19 Commissioner doesn't say that he will no longer give the 20 talk to the Liberal Party. All that is said is that it 21 will have to be deferred until after the Commission is 22 completed, and so we make the point, again, that it doesn't 23 matter whether it is a fundraiser, it doesn't matter what 24 date it's given on, once the Commissioner has been seen to 25 associate with the Liberal Party, that taints the work that 26 the Commissioner does in relation to this Commission. 27 28 With regard to the submissions that Mr Agius made 29 about the emails that were produced yesterday at the 30 request of Slater & Gordon, we submit that the matters 31 which Mr Agius raised need to be carefully assessed against 32 the statements that were made by the Full Court in 33 Gaisford. 34 35 In relation to the matter of necessity, we rely also 36 on the passage which Mr Agius cited from the Full Court in 37 Gaisford. 38 39 We also direct your attention, Commissioner, to a part 40 of Mr Stoljar's written submission which appears on page 41 10, which is footnote 43, which refers to the High Court's 42 judgment in Laws. In Laws v Australian Broadcasting 43 Tribunal, Mr Stoljar has referred to a passage in the 44 judgment of the Chief Justice and Brennan J and a passage 45 in the judgment of Deane J. 46 47 There is a further passage to which we would direct


1 your attention, Commissioner, which is at page 102 in the 2 joint judgment of Gaudron and McHugh JJ. This is in the 3 final paragraph of the judgment. In that paragraph their 4 Honours say: 5 6 Our conclusion that no reasonable bystander 7 would reasonably fear that the Members of 8 the Tribunal would bring unfair or 9 prejudiced minds to the inquiry makes it 10 unnecessary for us to determine whether the 11 doctrine of necessity applies to the case 12 of a person who is reasonably suspected of 13 prejudging an issue which arises for 14 decision by him or her. 15 16 I interpolate there, Commissioner, that the other judges, 17 too, took the view that they didn't really need to 18 conclusively deal with this matter because the matter fell 19 on the primary argument, but their Honours go on: 20 21 Whatever the precise scope of the doctrine 22 of necessity in the natural justice 23 context, it seems contrary to all 24 principles of fairness that on the ground 25 of necessity a person should have to submit 26 to a decision made by a person who has 27 already prejudged the issue. Likewise, 28 there seems much to be said for the view 29 that in the absence of a contrary statutory 30 intention, the ground of necessity should 31 not require a person to submit to a 32 decision made, or to be made by a person 33 who is reasonably believed to have 34 prejudged the issue. 35 36 That comment has direct applicability in the present 37 circumstances. 38 39 The other matter that perhaps ought be borne in mind 40 when dealing with this rule of necessity is that in most 41 circumstances, it has arisen where the parties to the 42 litigation have rights that they wish to vindicate one way 43 or the other and they have an entitlement to have those 44 rights determined. 45 46 As I said earlier, nobody has any rights in this 47 proceeding to have anything determined on a personal level.


1 It is an inquiry, and if it comes to an end, it comes to an 2 end. If it is to be replaced by another inquiry, that may 3 occur, but there is no-one who can complain that they have 4 a right which they are asking this Commission, as of right, 5 to determine, and that must bear upon the judgment that the 6 Commission makes in relation to the application or 7 otherwise of the rule of necessity. 8 9 Commissioner, they are the only additional submissions 10 that I seek to make. Thank you. 11 12 THE COMMISSIONER: Thank you, Mr Borenstein. Mr Cheshire? 13 14 MR CHESHIRE: Thank you, Commissioner. I join in the 15 application, but I don't wish to say anything further. 16 17 THE COMMISSIONER: Thank you. Mr Agius? 18 19 MR AGIUS: There is one matter that has been brought to my 20 attention by my learned friend Ms McNaughton which I feel, 21 in fairness to you, Mr Commissioner, I should address. It 22 is a correction based upon some facts that Ms McNaughton 23 has told me which I accept from her. It deals with the 24 material that was produced yesterday. 25 26 THE COMMISSIONER: If you wish to proceed, by all means do 27 so. 28 29 MR AGIUS: Mr Commissioner, I am informed that the reason 30 why the email which one sees on page 21, dated 12 August 31 2015, at 11.12am, does not disclose the attachment line and 32 the information after the word "Attachment", that we see in 33 the email that was disclosed yesterday, was because as 34 presented in this folder at tab 10, this email, or this 35 version of the email, is part of a chain. Ms McNaughton 36 tells me that the way in which the system apparently works 37 is that it drops off any attachments when an email forms 38 part of a chain. That is not anything that was explained 39 to us yesterday when, for the first time, we received a 40 copy of the email with the attachment line present and, 41 indeed, with the attachments that now form part of 42 ACTU MFI-6. 43 44 That additional information, if we accept it for the 45 sake of argument, does not, however, impact upon our 46 submission which was, in essence, that on 12 August 2015, 47 at 11.12am, the email which was received contained an


1 attachment line and attachments, which attachments can now 2 be found in MFI-6. 3 4 It doesn't in any way detract from our submission that 5 that information was available to the Commissioner on 6 12 August at 11.12am and that its availability to the 7 Commissioner was not disclosed either in the email of 8 Adrian Kerr of 13 August 2015, at 3.11pm, which is at 9 page 29 and following of MFI-2, and was not disclosed at 10 tab 10 of MFI-2, page 21, and was not disclosed until 11 specific inquiry was made yesterday. It does not detract 12 from our submission that there has been no explanation, 13 much less a full explanation, as to why it was that the 14 attachment line did not come to attention prior to the 15 email which was sent out at 9.23am the following morning. 16 Thank you. 17 18 THE COMMISSIONER: Thank you. 19 20 MR NEWLINDS: Commissioner, may I, with your leave, 21 address two matters? 22 23 THE COMMISSIONER: You are replying to your allies? By 24 all means address. 25 26 MR NEWLINDS: The first one is this, the first one I'm not 27 replying. On the question of relief, can I simply withdraw 28 what I said before and rest on what we say in 29 paragraphs 115 and 116. 30 31 The second matter is important. I want to make it 32 clear that I do not adopt any submission to the effect that 33 any documents have been doctored, or that there has been 34 any, and that there could be on the state of the 35 information, any basis for making such a submission. 36 I just want to make that entirely clear, but I do want to 37 say one thing about the document. I know Monday wasn't the 38 most comfortable day for either you and I in a court but -- 39 40 THE COMMISSIONER: It is not a court. 41 42 MR NEWLINDS: Well, in a room that looks like a 43 courtroom. You did try and force me on on Monday in 44 circumstances where you emphatically told me that I had all 45 the documents. It now turns out I didn't. That is the 46 first point. The hypothetical observer would be most 47 perturbed by that.


1 2 Now, it doesn't matter if there's anything in the new 3 document or not, it doesn't matter at all. I haven't had 4 time to consider that document, and this is the next point. 5 The Commission at no time has given us this new document. 6 We were never provided with, if this was litigation, the 7 supplementary discovery. 8 9 There is no explanation for how that would be, and the 10 hypothetical observer would be horrified. That's all 11 I want to say, that, really, part of the problem with 12 forcing cases on when people say they're not ready is this 13 sort of thing happens all the time, but, boy, you've got to 14 be confident when you tell someone that they've got all the 15 documents, and you were wrong when you told me that, and 16 there's no explanation for how that could have happened. 17 That is my submission. 18 19 THE COMMISSIONER: I will adjourn for a short time to 20 consider the future progress in relation to these 21 applications. 22 23 SHORT ADJOURNMENT. 24 25 THE COMMISSIONER: I have reached a view as to what should 26 happen. Mr Stoljar, do you have anything to say? 27 28 MR STOLJAR: Yes, Commissioner. Can I just make the 29 following observations: at 11.40am yesterday, the 30 solicitors for the CFMEU were given at their request an 31 electronic copy of all emails the subject of Mr Agius's 32 address this morning. I tender that electronic copy. 33 34 THE COMMISSIONER: That will be ACTU MFI-8. 35 36 ACTU MFI-8 - ELECTRONIC COPY OF ALL EMAILS THE SUBJECT OF 37 MR AGIUS'S ADDRESS ON 21/08/2015 38 39 MR STOLJAR: That electronic copy should have been 40 produced to the solicitors for the ACTU and the AWU. By 41 oversight of Commission staff it was not, that was an 42 error. However, while not excusing the error, firstly, it 43 is clear from the face of the email that the invitation was 44 enclosed or attached and, secondly, copies of the email and 45 the invitation were in evidence on Monday, all that was 46 missing was the standalone version of the email. 47


1 The electronic native format of the email at tab 11 of 2 MFI-2 is identical to the hardcopy version produced by the 3 Commission on Monday, 17 August. This is obvious on a 4 cursory examination of the electronic record. 5 6 There is no basis whatsoever for the serious 7 allegation that the version of tab 11 produced by the 8 Commission was altered or doctored in any way. That is all 9 I wish to say, Commissioner. 10 11 MR NEWLINDS: I need to make a submission. 12 13 THE COMMISSIONER: By all means, Mr Newlinds. There's no 14 need to get excited. 15 16 MR NEWLINDS: I know, I'm so sorry. 17 18 THE COMMISSIONER: Yes? 19 20 MR NEWLINDS: What I didn't know until that document - 21 what I have never understood until this document was 22 explained to me - and the reason for that is I never saw it 23 until it was tendered this morning - is you got the 24 invitation twice. That is what the evidence shows, 25 I think. The reason I say "I think" is the way this has 26 unfolded, but I make that submission. 27 28 THE COMMISSIONER: Thank you. 29 30 MR NEWLINDS: It is very important. 31 32 THE COMMISSIONER: Yes. Yes, I have noted what you say. 33 Mr Agius? 34 35 MR AGIUS: Mr Commissioner, two things arising from what 36 my learned friend has said. I did not make the submission 37 that the copy was doctored or altered. I said that a 38 fair-minded observer might form that conclusion, which is a 39 different matter. 40 41 The documents that were in evidence prior to the 42 receipt by us of the hardcopy of the email yesterday did 43 not disclose that that email had an attachment to it. They 44 did not disclose the word "Attachment", or the words that 45 follow the word "Attachment" in the email, in the forms in 46 which it appeared in ACTU MFI-2. 47


1 We did not know, until yesterday, that that email in 2 its native form when it would have been received at 11.12am 3 on 12 August contained the attachments, nor do we have the 4 attachments; nor were those facts revealed in ACTU MFI-2. 5 6 I have not suggested that you, Mr Commissioner, have 7 altered that email. What I have suggested is that given 8 that the emails that were in MFI-2 were said to be the 9 record of email exchanges, that representation was not 10 accurate. MFI-2 cannot be a complete record of the emails 11 because it did not include the email in its native form 12 which we received for the first time yesterday; nor did we 13 receive any explanation as to why it differed in the very 14 critical respect in which it does from the emails in MFI-2. 15 16 In our respectful submission, the fair-minded observer 17 would be entitled to draw such conclusions as were 18 available from that which includes that for some reason 19 there was or there may have been some deliberation in that 20 process. 21 22 THE COMMISSIONER: What I am going to do is to commence 23 work on a consideration of this interesting and, in some 24 respects, complex matter. I hope to complete that by 25 Tuesday. If that date changes those affected, indeed, 26 everyone, will be informed of that fact. The hearing now 27 adjourns. 28 29 AT 1.10PM THE COMMISSION ADJOURNED ACCORDINGLY 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


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