For the second time in a month, the Coalition Government is
facing the reality of one of their appointments being described as untenable.
As was the case with former Speaker Bronwyn Bishop, the honourable Dyson Heydon
AC QC is taking time to consider his future as the Prime Minister refuses to
sack him. Mr Heydon’s decision was expected today, but he has asked for more
time to ponder his position.
Prime Minister Tony Abbott has praised Dyson Heydon’s
impartiality and professionalism, British Libertarian Brendan O’Neill described
the scandal surrounding Heydon’s ongoing role as Commissioner as a ‘’storm in a
teacup” and conservative commentator Chris Kenny is trying to draw comparisons
between Heydon’s speaking engagement at the Garfield Barwick Address and every
other speaker ever to appear at a political gathering.
What is so damned important about the Trade Union Royal
Commission anyway? Why does it matter if the Commissioner agreed to speak at a
function associated with the Liberal Party?
Winners and Losers
The political stakes associated with this particular Royal
Commission are manifest. Established by former Governor General Quentin Bryce
at the request of the newish Coalition Government, the terms of reference
(Letters Patent) for the Trade Unions Royal Commission invite inquiry into the
financial dealings and rigour of governance of “employee associations”.
The benefit of illuminating the inner workings of unions and
exposing wrongdoing is an undeniable benefit for all Australians. The political
fallout is likely to benefit only one side: the Coalition government, which
hopes the Royal Commission will unearth a veritable avalanche of dirty deals
involving the Labor Party.
Whether the Government’s primary objective in establishing
the Royal Commission was to bury the Labor Party is open to speculation.
Perhaps it’s just a fringe benefit. The reality if that any adverse findings by
the Royal Commission will reflect poorly on the Labor opposition. Therefore, it
is in the best interests of the Liberal Party to keep the Royal Commission
running for as long as possible. Similarly, it is potentially to Labor’s
benefit to discredit the Royal Commission, particularly as so many prominent
Labor politicians have backgrounds working with various unions.
Above Reproach
If the outcome of the Royal Commission into Trade Union
Governance and Corruption was not as politically significant, a loose
association between the Commissioner and the political party currently in
government might be excusable. Lawyers and judges have an affiliation for
politics, and few judges of Heydon’s stature would have been able to avoid
having friends in political positions, attending political functions, working
with current and future politicians.
In this instance, Heywood has admitted that he was aware
that the Garfield Barwick Address was a function arranged by the Liberal Party.
It may have slipped his mind, as he has suggested, but he knew it – and
frankly, with Sir Garfield Barwick’s ties to the Liberal Party, it would hard
to imagine that he would not have known. Even had he not known, professionals
on the speakers’ circuit like to know certain details before they accept a
booking: who is arranging the function, who will gain from it, who is attending…these
are standard questions that he should’ve asked.
And that’s only the Garfield Barwick Address. There’s also
the fact that Heydon was on the selection committee that awarded the Rhodes
Scholarship to none other than Tony Abbott…the Prime Minister whose government
requested the Royal Commission Heydon now heads.
There’s also Heydon’s record while on the High Court: he
dissented in about 40% of opinions, most notably when he favoured the tobacco
industry, which has been a financial supporter of the Liberal Party.
Could these be a string of coincidences? Absolutely. Is the
combined weight of these instances enough to raise the possibility of bias?
Again, absolutely yes.
Julian Burnside, a noted progressive legal mind and
activist, has again praised Heydon’s record and his integrity, but Burnside has
also stated that Heydon should stand aside. A life beyond reproach is not
enough to protect Heydon when the perception of bias has been raised. Heydon
himself has said so.
"The law compels judges who have such a bias or may reasonably be
thought to have such a bias to disqualify themselves (from sitting on
cases)."
The Heydon
Singularity
Conservative commentator Chris Kenny is trying his best to
compare the Unions Royal Commission with other Commissions. Quite simply, there
is nothing in the same class as this. The political context of Heydon’s
Commission sets it apart from, say, the Royal Commission into Institutionalised
Abuse of Children. Adverse findings against a church or church-run charity
operating schools and homes for children are as inevitable as they are appalling,
but do not have the political ramifications of the Unions Royal Commission,
despite the Prime Minister’s links with the Catholic Church.
Nor can Heydon’s role in the Unions Royal Commission be
compared to Gillian Triggs’ role as President of the Australian Human Rights
Commission or Tim Wilson’s position as Human Rights Commissioner. The Coalition
Government has tried to tarnish Professor Triggs’ reputation with accusations of
delays and bias. As abhorrent as her findings are, they are largely
non-political. The same can be said of Tim Wilson. He is a former executive
with the Institute of Public Affairs, an organisation strongly aligned with the
Liberal Party policy, but his role as Freedom Commissioner has fewer partisan
touchpoints.
Counting the Cost
Estimates for the cost to taxpayers of this Royal Commission
range from $67m to $121m, but the cost to Australians is far greater than what
we can count in monetary units.
As Heydon was another of the Prime Minister’s infamous
Captain’s Picks, the questions raised here cast further doubt over the Prime
Minister’s ability to make sound decisions. Is the Royal Commission anything
more than a political witch hunt, with a handpicked Commissioner predisposed to
favour the government? Or is it simply a personal gesture from Tony Abbott to
thank Heydon for a dubious Rhodes Scholarship?
The left will also sustain damage if the Royal Commission is
discontinued. The one benefit to Labor and the unions from this Royal
Commission is that after the final report is handed to the Governor General,
the left would’ve been able to say that they had been meticulously prodded and
probed via a Royal Commission, and any adverse findings had been dealt with,
leaving a demonstrably clean operation. This would draw a line under the
murkiness of ALP-union dealings over the past two decades, and allow the Left
to move forward. Furthermore, it will rob the right of their ability to smear
Labor because of their union connections. If this commission is abandoned, that
opportunity is lost.
Regardless of which way Heydon decides to go, the final
insult is the additional cynicism this Royal Commission adds to Australian
politics. If Heydon stays, it will be under suspicion of bias. If he goes, his
Royal Commission will have been an immense waste of time and money to snag less
than a handful of minor scalps.