Labor was “ludicrous” to propose the Senate call on the Governor-General to dismiss Dyson Heydon, one of Australia’s leading legal minds says.

The Federal Opposition unsuccessfully moved a motion asking Sir Peter Cosgrove to intervene in the dispute over whether the man chairing the Royal Commission into Trade Union Governance and Corruption was biased.

The vote was tied at 34 to 34, with Palmer United’s Dio Wang and Liberal Democrat David Leyonhjelm abstaining.

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“I think that for the Labor Party, of all parties, to have proposed such a motion is truly ludicrous,” Australian Catholic University professor of law Father Frank Brennan said.

“If the resolution were to succeed in the Senate, it would’ve required the Governor-General Sir Peter Cosgrove, who’s not a lawyer, making a decision contrary to advice from the executive government, contrary to the wishes of the House of Representatives, and contrary to a 67-page, closely reasoned judgment by Dyson Heydon.

“It would’ve required that Peter Cosgrove, presumably with no advice from anywhere, make a decision unilaterally as Governor-General to dismiss Dyson Heydon.

“It would’ve been truly preposterous.”

Justice Heydon last week ruled he was not biased in his role as commissioner, despite previously accepting an invitation to speak at a liberal fundraiser.

Senate call went against Labor policy: Brennan

Father Brennan said the Labor Party had railed against Governors-General acting unilaterally in the past and suggested Labor’s Senate Leader lacked knowledge of the party’s political history in the matter.

“Perhaps it’s not irrelevant that the resolution was moved in the Senate by Penny Wong,” Father Brennan said.

“Although she be trained in the law, it’s got to be remembered that she was only seven years of age when John Kerr dismissed Gough Whitlam, and of course she was living in Malaysia at that time.

“But I think even Penny Wong would need to concede that from the age of 21, she was active in the Labor Party in South Australia.

“And I would have thought that anyone schooled in the Labor Party from the age of 21 onwards would’ve had it very firmly schooled into them that you don’t go revisiting 1975 in suggesting that the Governor-General be in a position to act unilaterally.”

In criticising Labor’s approach to the matter on Jesuit publication Eureka Street, Father Brennan called on Labor and the union movement to appeal against Mr Heydon’s decision to stay in the chair as commissioner to the courts — if for no other reason than to clear the air around the contentious matter.

“I think that Dyson Heydon has participated in quite some mental gymnastics in order to put himself in the clear of the charge of apprehended bias,” Father Brennan said.

“If they don’t [appeal], then I think the Labor Party and the union movement should simply wear the wrap.

“If they’re not prepared to take the matter to an independent court to have the matter fully agitated and to have a final decision, if need be all the way to the High Court — if they’re simply going to leave it as the decision by Dyson Heydon — then, if they’re not going to appeal it, I think they just have to accept it and they have to stop being critical of him.”