Dyson Heydon’s past behaviour fails the smell test

In modern business, executive search companies can scout the globe to find the right candidate for top corporate jobs. If the wrong person is selected the finger of blame is easy to direct.

When a royal commissioner is chosen by a government increasingly micromanaged by its prime minister, it is even easier to point the finger. When you pick a person to examine and report on trade unions, with recommendations on how to improve their governance, you would think you would go for someone with considerable experience in industrial relations. Surely you would not choose someone with no experience in the branch of the law to be investigated? If you think that, you are different from Tony Abbott. He picked Dyson Heydon.

It has taken only one week of revelations about this former judge to render useless the best part of 18 months of investigations, testimony and drama. It’s a joke — and a sick joke at that.

This is a democracy and every citizen has a right to their views on who should run Australia. I would defend to the death their right to be wrong in coming to their conclusions on this score.

The attacks made by Heydon on the Gillard and Rudd administrations in a speech delivered two years ago were harsh and hard. Many Australians would agree with them — but all Australians with the merest hint of fair-mindedness in them would also agree they were clearly partisan.

The question we must ask ourselves is this: would you say a person who made the following comments was a Liberal supporter? In speaking about a particular piece of legislation, this person said on June 25, 2013: “Why seek to enact it just before an election at a time when the government is borrowing $1 billion a week just to pay the public service? Is it an illustration of the fact that the tendency of the Rudd government to do non-substantive things, like make speeches and appoint committees and hold summits and so forth, survived even after Mr Rudd ceased to be prime minister?”

If it was a statement from Abbott, who was the opposition leader at the time, I would not have been surprised. I might even have congratulated him on the colourful prose and the judicious use of some damning numbers. Unfortunately, it wasn’t Abbott who delivered this speech. Rather, it was Dyson Heydon AC, QC. I can’t imagine a more partisan speech.

I made some trenchant criticisms of Julia Gillard and Kevin Rudd but that must be considered in conjunction with the welter of negative stuff I have written about Abbott and his government in recent times and my political stance during the past four decades.

I do not for one second dispute Heydon’s right to be a Liberal supporter and a critic of Labor governments.

What I do dispute is his fitness to preside over a commission that called and grilled as a witness Gillard, the very person Heydon had attacked in the aforementioned speech.

I don’t quite understand how the Prime Minister thought Heydon was an appropriate choice to preside over a commission that had such politically sensitive terms of reference.

More significantly, I have to wonder why the man himself thought it proper to accept Abbott’s invitation.

To make matters worse for the commissioner and the government, the Federal Court has just ordered the newly self-declared bankrupt Kathy Jackson to repay $1.4 million to the Health Services Union.

Readers of this column would be well aware that I queried the bona fides of Heydon’s commission in the context of the special treatment afforded to Jackson.

In stark contrast to the attempted forensic demolition of Gillard and Bill Shorten, where god knows how many staff members spent how many hours poring over documents in a desperate gambit to find something wrong, the commission just didn’t want to know about Jackson.

Witnesses who attempted to bring forward evidence against her were monstered in the box. When the counsel assisting the commission, Jeremy Stoljar, was finally shamed into asking her the tough questions, Jackson complained bitterly that she had been ambushed. She whinged that this was not the treatment she had been promised or expected. The commission uncovered only a fraction of what the Federal Court would find with comparative ease. The commission missed it.

Now, we know that Heydon was appointed as the royal commissioner on February 10 last year. The invitation to the now notorious Liberal Party function arrived in March and was accepted on April 10, 2014, two months after his appointment.

According to his own statement, Heydon dealt with this invitation at least four times and failed to read the second page each time. This is the same commissioner who has been prepared to belt and berate lawyers who appear before him for failing to read documents. The double standards stand out for all those not wearing blinkers.

It matters little whether the lawyers for the unions accept Heydon’s inevitable self-judgment that he is not partisan, or decide to appeal this to the Federal Court. The lawyers club may well band together to protect him, but they will circle the wagons in vain.

Whether it is the bloke or woman in the pub or the coffee shop or the fabled man on the Clapham omnibus, the verdict of many Australians will be that this can never pass the smell test. The commissioner will almost certainly hang on and give both the righteous and the crook an excuse to dismiss the commission’s findings with derision.

Even if he stood down voluntarily, the government could not replace him. No new commissioner could possibly judge the credibility of the evidence by simply reading transcripts. If you haven’t seen the look on the face or heard the tone and tenor in the responses, you can’t come anywhere near a proper judgment. This is now a right royal mess.

PS: On a return trip to Lees Fortuna Court restaurant in Sydney, a fortune cookie yielded ­another pearl of wisdom. To Bronwyn Bishop et al: “People who value their privileges above their principles will soon lose both.”

LIVE: Dyson Heydon asked to stand down