September 12th 2015

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Articles from this issue:

COVER STORY Arab world must help fix Syria and Libya crises

FAMILY AND SOCIETY They don't want diversity but to impose conformity

CANBERRA OBSERVED Young Nats jump aboard generational juggernaut

TRADE UNIONS Why royal commissioner declined to step down

RESEARCH Spin on the contraceptive pill a bit hard to swallow

LIFE ISSUES Singer escapes Fisher's net in euthanasia debate

HISTORY OF INDONESIA Suharto's "New Order" a period of stability

CULTURE Academic centres turn on Western civilisation

FAMILY LIFE A father's presence in the home: part II

OBITUARY Historian Robert Conquest documented the horrors of Stalinism

PUBLIC HEALTH UN knows: harm reduction does not reduce harm

FAMILY AND SOCIETY Witness to Marriage Day, August 1

CINEMA On the rough road away from loneliness: Last Cab to Darwin

BOOK REVIEW Good science, specious argumentation


The coup against Tony Abbott

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Why royal commissioner declined to step down

by Peter Westmore

News Weekly, September 12, 2015

Several trade unions, including the Australian Workers Union (AWU) and the Construction, Forestry, Mining and Energy Union (CFMEU), as well as the ACTU, demanded that Dyson Heydon disqualify himself as Royal Commissioner into Trade Union Governance and Corruption, following revelations that he had agreed to give a lecture on Sir Garfield Barwick to a public meeting organised by the lawyers’ branch of the NSW Liberal Party.

Royal Commissioner
Dyson Heydon

Royal Commissioner

Dyson Heydon

Mr Heydon, a former justice of the High Court, declined the invitation after being made aware that it was associated with the Liberal Party.

It is normal practice in legal proceedings that, if it is believed that a judge has shown bias during proceedings, he be asked to disqualify himself from those proceedings.

Judges are very careful not to involve themselves with public events, as any such involvement could result in their impartiality being called into question. In this case, Mr Heydon withdrew from the event when he became aware that it was connected with the Liberal Party.

It is very clear that Mr Heydon looked into the unions’ submissions with great care. In his 67-page judgement, he said the question that needed to be resolved was whether his acceptance of an invitation to attend the function “might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of questions to be examined in the course of the commission’s inquiries.”

He concluded: “I have concluded that it is not the case.”

No objections

Mr Heydon pointed out that none of the complainants had objected to the conduct of the inquiry.

He said: “No court proceedings have been issued challenging any aspect of the conduct of the commission’s hearings either in 2014 or 2015. Nor have any court proceedings been issued challenging any finding in the interim report.”

He added: “[T]he terms of refe­rence concern possible departures by relevant entities, union officials or unions from proper standards. They do not concern the destruction of relevant entities or unions.

“Indeed, the terms of reference assume the desirability of maintaining the existence of unions.

“It may be said that they seek not to destroy unions or obstruct their purposes, but to see whether they have been fulfilled and to see how they might be better fulfilled in future.

“Hence the terms of reference are not themselves hostile to the union movement. They do not assume the desirability of restricting union power or altering the present system of handling industrial disputes.

“The terms of reference are not directed primarily at industrial relations in their ordinary operation. What they are concerned with is bad governance within certain institutions which are not trade unions, and criminality and breaches of legal or professional duty on behalf of unions or their officials.”

Mr Heydon comprehensively reviewed the legal principles surrounding perceived bias, relating it to a large number of court cases in which this matter has been at issue.

He quoted the words of former chief justice of the High Court of Australia Murray Gleeson with Justice Gummow: “Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. …

“Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

He also looked carefully at what approach a “fair-minded lay observer” would be expected to bring to such a matter.

Mr Heydon said that his failure to recall that the event was being conducted by the lawyers’ branch of the NSW Liberal Party arose from the fact that he did not open his own emails, and only saw attachments when they had been printed out for him.

He said: “At the outset, it should be noted that there is evidence that I have no computer and that all email correspondence is sent and received by my personal assistant. Indeed it is notorious among the legal profession that I am incapable of sending or receiving emails. The consequence is that I read emails only after they have been printed out for me.”

There is hope for all of us yet!

Mr Heydon made clear that he originally agreed to give the lecture, because it referred to the former chief justice of the High Court, Sir Garfield Barwick, and did not traverse matters which are before the royal commission.

He said: “The mere fact that a person agrees to deliver a speech at a particular forum does not rationally establish that the person is sympathetic to, or endorses the views of, the organiser of that forum.”

Commissioner Heydon made clear that the complainants retained the right to seek his disqualification through the courts.

It is probable that the unions will take the matter further. If they do not do so, their credibility will be fundamentally undermined.

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