Dyson Heydon: PM should have picked Michael Kirby for unions royal commission

Tony Abbott blew it. Not by appointing a former High Court judge, but by appointing the wrong one.

When Dyson Heydon was keeping us waiting for his judgment, there were reports the government was considering who might replace him. The names included Terence Cole, the former judge who led royal commissions into the construction industry and the oil for food scandal, Fair Work commissioner Ian Cambridge and former High Court judge Ian Callinan.

One reason Callinan was there was because he had done the horse flu inquiry. The other? He is perceived as being a Conservative, a natural friend of that side of politics.

Had Heydon forced his hand, Abbott would have been better off going for Michael Kirby. In fact, for a government so determined to stamp the commission with the authority of the High Court, Kirby would have been a clever choice right from the start.

He may well have refused or said he was busy with more important stuff like saving the world from North Korea.

But there also might have been a part of him that would have relished the challenge. Not only to be involved in what would be a transformative inquiry for the nation, and to ensure it was fair. But to prove to everyone that he — just like Heydon — is nobody’s man.

Abbott also has great personal regard for Kirby. He wrote an opinion piece for The Australian lauding Kirby on his retirement from the High Court in 2009 and said he had come “to regard him as something of a mentor” after they both argued against a republic in the early 1990s.

He would also have snookered Labor. All he had to do was point — as Heydon did — to the fact Kirby gave the Earle Page Oration and the Neville Wran Lecture when he was on the bench.

The speculation about a replacement was actually a tribute to Heydon. It rightly inferred he had an open mind about the perception of bias argument. Some senior figures at the NSW Bar even thought that for the credibility of the commission he would fall on his sword. Then in the next breath they would say that Heydon would be true to his legal training and ignore such considerations.

It has also opened a debate about whether judges can leave their political leanings — or any “predisposition” as Heydon puts it — when they take their oath. Part of that debate should be whether it is wise to get the agreement of both sides of parliament before appointing a royal commissioner.

If judges are the favoured path of politicians eager to buttress their inquiries, then credibility of the High Court and the rest of the judicial system should be considered.

Heydon rightly cited the fact that former High Court Chief Justice Murray Gleeson gave the 2014 Barwick Lecture as support for his claim that it was more concerned with the law than politics.

The form guide says Gleeson would have never considered giving it if he had Heydon’s job. Such a precise, organised man would have seen the danger printed on the invitation. He also would have remembered an incident from his decade as NSW Chief Justice.

Gleeson — along with his predecessor Sir Laurence Street — was accused of a cover-up by Labor MLC Franca Arena in relation to allegations surrounding Justice David Yeldham. Yeldham left the bench soon after Gleeson started in 1988. In 1996 it was revealed that before he stepped down, police had questioned Yeldham about liaisons with schoolboys at Sydney railway stations.

The State Labor government had little option but to investigate and on September 23 Attorney-General Jeff Shaw told parliament that Gleeson had nominated Justice Terry Cole to head the inquiry.

As soon as Shaw finished speaking, Arena responded that Cole was a bad choice; she said he had a close relationship with James Wood going back to when they were at Seven Wentworth together and that they were regular tennis partners.

After discussing the matter with Cole, Gleeson released a statement the next day saying the judges had played tennis together only once and had not shared chambers since 1982.

The following morning he contacted Shaw. Gleeson said he had told Cole he should not accept the commission, would not be recommending any other judge and wanted to discuss “the more general providing judges for government inquiries”.

The government chose acting district court judge John Nader to conduct the inquiry. Arena’s next step showed Gleeson had acted wisely. She challenged the right of Nader to conduct the inquiry all the way to the High Court and then refused to co-operate with his inquiry.

*Michael Pelly is the author of Murray Gleeson: The Smiler