Should I Stay or Should I Go?

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.

The significance of a Coalition Government inquiring into the business dealings of various unions lies in the origins of federal politics in Australia. Generally speaking, the Australian labour movement can be divided into two areas: the trade unions, and the Australian Labor Party. Both sides emerged from the state based labour movements in the latter half of the nineteenth century. The symbiotic relationship between the unions and the ALP has continued unbroken for over a century, with the unions being a primary contributor to the success of the ALP. Obviously, any inquiry into the financial affairs of a trade union will find multiple touchpoints between the unions and the ALP.

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.