Extract from The Guardian
Senate support sought for extraordinary motion calling on Peter
Cosgrove to terminate inquiry after commissioner accepted an invitation
to speak at a Liberal party fundraiser
Labor has given notice that it will seek Senate support for an
extraordinary motion calling on the governor general, Peter Cosgrove, to
terminate the royal commission into trade unions because of the dispute over the commissioner, Dyson Heydon.
The party - which remains furious about the dismissal of the Whitlam government by the then governor general, John Kerr, in 1975 - insists it is within the Senate’s power to convey the request, and it would be up to Cosgrove to consider how to handle it.
If the majority of senators agree to the motion, the Senate would send a message to Cosgrove saying that Heydon “by his conduct in accepting an invitation to speak at a function raising campaign funds for the Liberal party of Australia (New South Wales Division) has failed to uphold the standards of impartiality expected of a holder of the office of royal commissioner”.
“Accordingly we respectfully request Your Excellency to revoke the letters patent issued to the Honourable John Dyson Heydon AC QC,” the proposed motion states.
The practical effect of revoking the letters patent, in absence of any other action, would be an end to the royal commission into trade union governance and corruption.
But Labor insists its motion is focused on Heydon and does not preclude the government from taking other steps to continue an inquiry into unions. One option suggested by the human rights lawyer Julian Burnside QC is the appointment of a new commissioner who could consider evidence already given.
Labor’s Senate leader, Penny Wong, gave notice on Tuesday that she intended to move the motion on the following sitting day, Wednesday, although she has kept open the option of delaying the push until after a potential hearing on Friday. Heydon has given unions until Thursday to lodge submissions on whether they were formally asking him to stand aside, which he would consider on Friday.
The Australian Council of Trade Unions has yet to announce its decision, saying it was considering the documents released by the commission, consulting affiliate unions and weighing up legal advice.
The government continued to defend Heydon on Tuesday, arguing Labor was making “a sordid, squalid attempt” to smear a former high court judge. The attorney general, George Brandis, said Heydon was “one of the most eminent and distinguished Australians this country has ever produced”.
Wong indicated the timing of bringing on the motion would be subject to negotiations with Senate crossbenchers.
She said it was not a step the Labor party had taken lightly but it was “a very serious matter which goes to the heart of the impartiality of a very powerful body which is the royal commission”.
“It is very clear that the legislature can send a formal message to the executive and that’s what we are choosing to do because we think it is serious enough,” Wong told reporters in Canberra.
In Australia, the governor general acts on the advice of ministers who are responsible to the parliament when exercising executive power, according to constitutional practice.
Asked about the chances of the governor general actually taking the step requested by the Senate in absence of government advice, Wong said: “If the Senate does agree to this motion then what the governor general does with it is a matter for the governor general.”
The political dispute relates to Heydon’s initial agreement to deliver the Sir Garfield Barwick address, an $80 per ticket event organised by the NSW Liberal party’s legal policy and lawyers branch, and whose invitiations provided an option for people to make donations.
“All proceeds from this event will be applied to state election campaigning,” an invitation for the 26 August event said.
Heydon said he had not read the attachments of a June 2015 email that contained the invitation and donation information, but his “understanding at all times has been that the dinner was not to be a fundraiser”. He pulled out of the event last week after being contacted again by the organiser.
Defending his conduct during a commission hearing on Monday, Heydon said he had agreed in April 2014 to deliver the address in August 2015 on the understanding that the commission would have finished its work by that time.
Heydon said when he was contacted again by the organiser in March 2015 he “overlooked” the Liberal party connection that had been stated in the original email, and also overlooked the fact his agreement to speak at that time had been conditional on the commission having been completed.
Labor seized on the comments and continued to pursue the issue during question time in both the lower and upper houses of parliament on Tuesday.
Tony Abbott said Labor MPs “should be very careful trying to protect from public exposure their union mates who for too long have been ripping off honest workers to protect themselves”.
The prime minister urged critics of Heydon to use “standard procedures” to bring an application before the commission relating to the commissioner.
“The fact that they have not brought an application in the usual way makes me think that members opposite are even more feral than the ACTU when it comes to protecting union privilege,” he told parliament on Tuesday.
Brandis confirmed his office had received a “date claimer notice” about the Sir Garfield Barwick address several months ago but apologised on his behalf because another event was already in his diary.
Brandis took aim at the Labor senator Jacinta Collins for claiming there were grounds for Heydon’s resignation.
“Mr Heydon withdrew from this function at his own initiative - not, as you dishonestly and sleazily say, having been caught out by the media but on his own initiative, at a time earlier than any report into the matter had surfaced in the media,” Brandis told Collins in the Senate.
“Take caution in your tone, Senator Collins. You are talking about a justice of the high court of Australia; a man appointed to the New South Wales court of appeal by a Labor state government … Thank God we have Australians of the integrity and the intellectual weight of Dyson Heydon who are prepared to take up public service, notwithstanding that they subject themselves to the slings and arrows of creatures like you.”
The Senate president, Stephen Parry, asked Brandis to withdraw that last remark. Brandis said: “We’re all God’s creatures but if Senator Collins takes offence I withdraw.”
The president of the Law Council of Australia, Duncan McConnel, said the public attacks on Heydon being played out through the media were “unacceptable and damage the basis on which tribunals and courts operate”.
“In this case, Mr John Dyson Heydon AC QC is a highly regarded former judicial officer,” McConnel said in a statement on Tuesday.
“The proper way for dealing with any question of bias, including apprehended bias, is to make an application for the commissioner to recuse himself, and for the commissioner to consider and rule on the application.”
The clerk of the Senate, Rosemary Laing, has provided advice to Wong about the upper house’s power to address the governor general.
Laing said the most common form of address to the governor general was an expression of thanks for a speech at the opening of parliament, but the Senate had made use of addresses “for several significant purposes” in the first half of the 20th century.
This included a motion in 1931 urging the governor general to refuse to approve regulations in the current session that were the same in substance as regulations already disallowed by the Senate, and a motion in 1914 asking the governor general to submit six constitution alteration proposals to the people even though they had not been passed by the House of Representatives.
“In summary, an address is the appropriate form for communications at the highest level between a legislature and another arm of government, namely, the executive,” Laing wrote.
“Indeed, it could be argued that only the legislature can undertake such a serious task as is envisaged by an address concerning the letters patent for a royal commissioner.”
The full text of the proposed motion is:
The party - which remains furious about the dismissal of the Whitlam government by the then governor general, John Kerr, in 1975 - insists it is within the Senate’s power to convey the request, and it would be up to Cosgrove to consider how to handle it.
If the majority of senators agree to the motion, the Senate would send a message to Cosgrove saying that Heydon “by his conduct in accepting an invitation to speak at a function raising campaign funds for the Liberal party of Australia (New South Wales Division) has failed to uphold the standards of impartiality expected of a holder of the office of royal commissioner”.
“Accordingly we respectfully request Your Excellency to revoke the letters patent issued to the Honourable John Dyson Heydon AC QC,” the proposed motion states.
The practical effect of revoking the letters patent, in absence of any other action, would be an end to the royal commission into trade union governance and corruption.
But Labor insists its motion is focused on Heydon and does not preclude the government from taking other steps to continue an inquiry into unions. One option suggested by the human rights lawyer Julian Burnside QC is the appointment of a new commissioner who could consider evidence already given.
Labor’s Senate leader, Penny Wong, gave notice on Tuesday that she intended to move the motion on the following sitting day, Wednesday, although she has kept open the option of delaying the push until after a potential hearing on Friday. Heydon has given unions until Thursday to lodge submissions on whether they were formally asking him to stand aside, which he would consider on Friday.
The Australian Council of Trade Unions has yet to announce its decision, saying it was considering the documents released by the commission, consulting affiliate unions and weighing up legal advice.
The government continued to defend Heydon on Tuesday, arguing Labor was making “a sordid, squalid attempt” to smear a former high court judge. The attorney general, George Brandis, said Heydon was “one of the most eminent and distinguished Australians this country has ever produced”.
Wong indicated the timing of bringing on the motion would be subject to negotiations with Senate crossbenchers.
She said it was not a step the Labor party had taken lightly but it was “a very serious matter which goes to the heart of the impartiality of a very powerful body which is the royal commission”.
“It is very clear that the legislature can send a formal message to the executive and that’s what we are choosing to do because we think it is serious enough,” Wong told reporters in Canberra.
In Australia, the governor general acts on the advice of ministers who are responsible to the parliament when exercising executive power, according to constitutional practice.
Asked about the chances of the governor general actually taking the step requested by the Senate in absence of government advice, Wong said: “If the Senate does agree to this motion then what the governor general does with it is a matter for the governor general.”
The political dispute relates to Heydon’s initial agreement to deliver the Sir Garfield Barwick address, an $80 per ticket event organised by the NSW Liberal party’s legal policy and lawyers branch, and whose invitiations provided an option for people to make donations.
“All proceeds from this event will be applied to state election campaigning,” an invitation for the 26 August event said.
Heydon said he had not read the attachments of a June 2015 email that contained the invitation and donation information, but his “understanding at all times has been that the dinner was not to be a fundraiser”. He pulled out of the event last week after being contacted again by the organiser.
Defending his conduct during a commission hearing on Monday, Heydon said he had agreed in April 2014 to deliver the address in August 2015 on the understanding that the commission would have finished its work by that time.
Heydon said when he was contacted again by the organiser in March 2015 he “overlooked” the Liberal party connection that had been stated in the original email, and also overlooked the fact his agreement to speak at that time had been conditional on the commission having been completed.
Labor seized on the comments and continued to pursue the issue during question time in both the lower and upper houses of parliament on Tuesday.
Tony Abbott said Labor MPs “should be very careful trying to protect from public exposure their union mates who for too long have been ripping off honest workers to protect themselves”.
The prime minister urged critics of Heydon to use “standard procedures” to bring an application before the commission relating to the commissioner.
“The fact that they have not brought an application in the usual way makes me think that members opposite are even more feral than the ACTU when it comes to protecting union privilege,” he told parliament on Tuesday.
Brandis confirmed his office had received a “date claimer notice” about the Sir Garfield Barwick address several months ago but apologised on his behalf because another event was already in his diary.
Brandis took aim at the Labor senator Jacinta Collins for claiming there were grounds for Heydon’s resignation.
“Mr Heydon withdrew from this function at his own initiative - not, as you dishonestly and sleazily say, having been caught out by the media but on his own initiative, at a time earlier than any report into the matter had surfaced in the media,” Brandis told Collins in the Senate.
“Take caution in your tone, Senator Collins. You are talking about a justice of the high court of Australia; a man appointed to the New South Wales court of appeal by a Labor state government … Thank God we have Australians of the integrity and the intellectual weight of Dyson Heydon who are prepared to take up public service, notwithstanding that they subject themselves to the slings and arrows of creatures like you.”
The Senate president, Stephen Parry, asked Brandis to withdraw that last remark. Brandis said: “We’re all God’s creatures but if Senator Collins takes offence I withdraw.”
The president of the Law Council of Australia, Duncan McConnel, said the public attacks on Heydon being played out through the media were “unacceptable and damage the basis on which tribunals and courts operate”.
“In this case, Mr John Dyson Heydon AC QC is a highly regarded former judicial officer,” McConnel said in a statement on Tuesday.
“The proper way for dealing with any question of bias, including apprehended bias, is to make an application for the commissioner to recuse himself, and for the commissioner to consider and rule on the application.”
The clerk of the Senate, Rosemary Laing, has provided advice to Wong about the upper house’s power to address the governor general.
Laing said the most common form of address to the governor general was an expression of thanks for a speech at the opening of parliament, but the Senate had made use of addresses “for several significant purposes” in the first half of the 20th century.
This included a motion in 1931 urging the governor general to refuse to approve regulations in the current session that were the same in substance as regulations already disallowed by the Senate, and a motion in 1914 asking the governor general to submit six constitution alteration proposals to the people even though they had not been passed by the House of Representatives.
“In summary, an address is the appropriate form for communications at the highest level between a legislature and another arm of government, namely, the executive,” Laing wrote.
“Indeed, it could be argued that only the legislature can undertake such a serious task as is envisaged by an address concerning the letters patent for a royal commissioner.”
The full text of the proposed motion is:
(1) That the following Address to His Excellency, the Governor-General be agreed to:
“To His Excellency the Governor-General, General the Honourable Sir Peter Cosgrove AK MC (Retd)
May it please Your Excellency-
We, the Senate of the Commonwealth of Australia in Parliament assembled, respectfully submit that the Honourable John Dyson Heydon AC QC, whom Your Excellency requested to make inquiry into and report upon the governance arrangements of separate entities established by employee associations or their officers (Royal Commission into Trade Union Governance and Corruption), by his conduct in accepting an invitation to speak at a function raising campaign funds for the Liberal Party of Australia (New South Wales Division) has failed to uphold the standards of impartiality expected of a holder of the office of Royal Commissioner.
Accordingly we respectfully request Your Excellency to revoke the Letters Patent issued to the Honourable John Dyson Heydon AC QC.”
(2) That so much of standing order 172 be suspended as would prevent the President transmitting the Address to His Excellency in writing only.
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