Dyson Heydon: royal commissioner decides future
Union movement considering a legal challenge after Dyson Heydon’s decision to continue as commissioner.
Dyson Heydon’s decision to continue as Trade Unions royal commissioner has been condemned by the union movement, who are considering a legal challenge of the move.
Justice Heydon delivered his ruling today, and said the royal commission would resume tomorrow as per usual.
Mr Heydon published a 67-page decision that concluded “it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the questions which the work of the Commission requires to be decided”.
Today’s hearing took just a few minutes, despite expectations that it could take up to an hour for Justice Heydon to explain the reasons behind his decision.
The unions are seeking legal advice before deciding whether or not to appeal.
It took only five minutes, but Justice Heydon’s message to the union movement was clear: put up or shut up, John Lyons writes.
Read Justice Heydon’s summary of why he refused to step aside:
Commission ‘terminally tarnished’ unions say. Full statement:
Justice Heydon’s judgment introduction below:
The royal commissioner’s reasons for staying on at the inquiry:
Why the unions want Heydon gone
Opposition legal affairs spokesman Mark Dreyfus said the royal commission was “irredeemably tainted” by the initial scandal, exacerbated by Mr Heydon’s reluctance to grant unions the time and documents they requested to prepare their application for his disqualification.
However Mr Dreyfus declined to answer questions about his prior knowledge of the event before it erupted into the media, amid revelations in The Australian last week that the apparent conflict of interest was first recognised by his former adviser, Marcus Priest.
“Dyson Heyon’s position became untenable with his acceptance of an invitation to speak at a Liberal event,” he said in Sydney.
“I think Australians have now fully and completely lost confidence in this royal commission.”
The call that sparked a judicial hornet’s nest
Attorney-General George Brandis said he always expected Mr Heydon would withstand the attempts by “the criminal elements of organised labour” to smear him.
“I recommended Dyson Heydon who I know by reputation because I knew that he was a person of absolutely unimpeachable personal integrity and a black-letter lawyer virtually in a class of his own in this country,” he said.
“This is a man who has no politics, who is entirely free of politics, but has given a lifetime of service.”
Senator Brandis said Mr Heydon’s reasoning dismissing the application as a legal “tour de force”, adding it was “entirely ignorant” to suggest somebody other than the commissioner should have determined the matter.
“Indeed, making the application to the decision-maker is a necessary step where an application is to be made to a court, for example, for an injunction to restrain the decision-maker from sitting,” he said.
Wise decision Justice Heydon! The Royal Commission must continue. Too much union corruption already uncovered & more wrongdoing to come.
— Andrew Nikolic (@andrewnikolic) August 31, 2015ACTU secretary Dave Oliver said the commission was “terminally tarnished” and the unions were considering an appeal subject to legal advice.
“Commissioner Heydon has sat in judgment on himself and found in his own favour,” Mr Oliver said.
“What we are left with now is a multi-million dollar Royal Commission that is tainted – everything that has happened until now and everything that will happen in the future is stained by these events”.
Building industry lobby Master Builders Australia welcomed Mr Heydon’s ruling and said the “vital work of the Royal Commission must now continue unfettered and free from future claims of bias”.
“It is in the community’s interest that the Royal Commission’s investigations into unlawful and corrupt behaviours in the construction industry continue,” Wilhelm Harnisch, Master Builders Australia chief executive said.
“The evidence (provided to the commission) has shown just how out of touch the building unions are with normal standards of community behaviour and with the conduct of normal unions.
“It has identified a culture of intimidation that allows corrupt behaviours to flourish.”
Over the past 10 days the royal commission into trade union governance and corruption has been overshadowed by the news Mr Heydon had agreed to address the Sir Garfield Barwick lecture arranged by the NSW branch of the Liberal Party which was to be held last week.
A petition for Mr Heydon to disqualify himself on the grounds of apprehended bias was brought by the ACTU on behalf of five unions, on August 21. The Australian Workers Union and the Construction, Forestry, Mining and Energy Union brought stand alone applications calling for Mr Heydon to stand down.
The ACTU’s submission claimed Mr Heydon’s decision to attend the inquiry created the perception of bias because the Commission was “red-hot” politically.
However, Mr Heydon said the union’s submission suggests that “given the highly political nature of the matters which can come before the courts, no sitting judge could give a legal lecture to an organisation which has a political affiliation. Yet many distinguished judges have done so in the past without qualms on their part and without being subject to any reasonable criticism.
“This must immediately place a serious question mark over the applicants’ legal argument”.
Mr Heydon added: “The fair-minded observer would reflect that a speech about a public figure can be interesting even to those who do not share that public figure’s philosophy and can be delivered by a person who does not share it either.”
Greens MP Adam Bandt MP said the commission’s work would “forever be tarnished” by the apprehension of bias and repeated his calls for the government to terminate the inquiry.
“Agreeing to attend a Liberal fundraiser doesn’t pass the pub test. The Commissioner deciding himself that he’s not biased won’t change that,” the Melbourne MP said.
“To make matters worse, it seems the Commission didn’t release documents about the fundraiser in a timely manner.
“If Tony Abbott insists on continuing his inquiry, parliament should have the final say over any new commissioner and any new terms of reference.”
Attorney-General George Brandis said he was “not at all surprised” that Mr Heydon had decided to remain as royal commissioner notwithstanding “all the mud that is being flung at him”.
He compared Mr Heydon to respected Queensland lawyer Tony Fitzgerald, whose inquiry exposed corruption in the Queensland’s Bjelke-Petersen government during the 1980s.
“Dyson Heydon is to the union movement in Australia today what Tony Fitzgerald was to police corruption in Queensland in the 1980s – he is the person who is exposing it, he is the person who is blowing the whistle on it, he is the person who is getting to the bottom of it,” Senator Brandis told Sky News.
“There’s no doubt that Bill Shorten and the Labor Party and union leaders like Dave Oliver and others will do everything they can to throw muck at this royal commission because they have so much to fear.
“It is time they got out of the way and let the truth be known.”
Royal Commission “must go on”
Earlier today, Minister Julie Bishop said the work of the royal commission “must go on” regardless of whether Mr Heydon stands aside, as Labor repeated its calls for the government to remove royal commissioner.
Ms Bishop, the Liberal Party’s deputy leader, today said: “Those who are leading the charge against Dyson Heydon have one motivation and that is to protect union officials who are guilty of corrupt behaviour at the expense of the honest union members they were meant to be representing.
“Those who are leading the charge against Dyson Heydon are determined to stop an investigation into systemic corruption and bad behaviour on the part of corrupt union bosses.”
Labor deputy leader Tanya Plibersek said, regardless of Mr Heydon’s decision, Tony Abbott should “take action rather than just allowing this uncertainty to drift on”.
“We have said all along that this royal commission is Tony Abbott’s royal commission. It was set up to try and smear his political opponents. We have spent $80 million of taxpayers’ money on the royal commission,” the opposition foreign affairs spokeswoman told the Seven Network.
“Now with the doubts about perception of bias with the royal commissioner, I think it really does bring the credibility of the royal commission into doubt.”
Assistant Education Minister Simon Birmingham criticised Labor’s “hyperventilation” about Mr Heydon as “quite hypocritical” since senior judges had previously addressed Labor-aligned events.
“Dyson Heydon is a man of integrity, he has served the nation as a judicial officer for a very long time, initially being appointed by a Labor government to the bench (of the NSW Court of Appeal),” he told Sky News.
“I’m sure he will deliver a ruling that is just is based in sound legal foundation and just as full of integrity as every other action in Dyson Heydon’s long and distinguished career.”
Opposition immigration spokesman Richard Marles said “Blind Freddie” could see that Mr Heydon’s position was compromised.
“When we have a situation where the royal commissioner himself has accepted an invitation to a Liberal Party fundraiser, that there is an air of compromise about the royal commissioner; I mean Blind Freddie can see that. Now what Dyson Heydon does in respect of himself today is a matter for him but it should never have got to this point,” he told ABC Radio.
The ACTU, CFMEU and AWU have all requested that Mr Heydon disqualify himself over perceived bias, after the former High Court justice accepted an invitation to speak at a Liberal Party event.
Dyson Heydon (biased) v Dyson Heydon (professional): whoever wins, the verdict at 2pm compelling. "On the one hand I find..." #auspol #turc
— John Lyons (@TheLyonsDen) August 30, 2015
9.00am: After more than a week of deliberating Dyson Heydon will today reveal whether he will stay on as royal commissioner overseeing the inquiry into trade union corruption.
The ACTU, CFMEU and AWU have all submitted to have Mr Heydon disqualify himself over perceived bias, after accepting an invitation to speak at a Liberal Party event.
He has since admitted he “overlooked” the political connection of the Sir Garfield Barwick address.
After several delays, Mr Heydon will announce his ruling at 2pm AEST on Monday.
On Friday unions made further submissions after it was revealed counsel-assisting Jeremy Stoljar spoke to Mr
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