Extract from The Guardian
Commissioner’s decision will force critics to make application to
federal court if they wish to persist with claim of apprehended bias.
Commissioner’s decision will force critics to make application to
federal court if they wish to persist with claim of apprehended bias.
Dyson Heydon has rejected calls to disqualify himself from the trade
union royal commission, forcing critics to make an application to the
federal court if they wish to persist with their claims of apprehended
bias.
Heydon, the sole commissioner of the inquiry, rejected the union applications and defended his impartiality in a 67-page decision delivered in Sydney on Monday.
Unions have left the door open to further legal steps, arguing that any findings of the royal commission – due in December – would be “terminally tarnished” because of the row over Heydon’s initial agreement to speak at a Liberal party event.
The attorney general, George Brandis, called for an end to the attacks on “one of the finest intellects in this country” but the Labor party signalled it would press ahead next week with attempts to pass a motion in the Senate asking the governor general, Peter Cosgrove, to intervene.
Heydon, who is a former high court judge, rejected submissions from unions that his agreement to deliver the Sir Garfield Barwick address met the legal test of apprehended bias.
“I have concluded that 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,” he said.
The ACTU secretary, Dave Oliver, said the peak union body would consider and read the reasons for the decision, consult its lawyers and talk to affiliates before announcing whether it would make an application to the federal court.
“Despite the decision today of Dyson Heydon, the reality is that this royal commission is now terminally tarnished. Any recommendation out of this can’t be taken seriously,” he said.
The union applications had sought to rely on the legal test, in a 2000 case, that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
The ACTU argued it was a relatively low threshold because of the inclusion of “might” twice. The union representatives focused on Heydon’s agreement to give the Sir Garfield Barwick address – a Liberal party event – and its effect on perceptions of his ability to decide on the commission’s work impartially.
In his decision, Heydon criticised some of the union submissions as “imprecise” and “not altogether easy to understand”.
But he argued that before disqualification “there must be something more than mere party membership or attendance at party functions, e.g. active support of the organisation, or substantial involvement, or proselytising”.
He suggested his own conduct was passive. “How does agreeing to give a public address to a gathering assembled by the chairs of two lawyer branches indicate support which enables an inference that one of the offending characteristics exist?
“Subject to the content of an address, to give an address does not by itself indicate that the speaker supports the views of any person in the gathering. But an address about a topic unrelated to the possible goals of the party with which the two lawyer groups are associated cannot give rise to an apprehension of bias. In that example there is no proselytising and no substantial party activity.”
Heydon said his “understanding at all times has been that the dinner was not to be a fundraiser” for the Liberal party.
The government – which had signalled it was prepared to consider appointing a new commissioner if Heydon had recused himself – said it was “pleased” with the decision.
Brandis called on the Labor leader, Bill Shorten, and the trade union leadership “to stop trying to run interference on a royal commission that is shining a light on the dark corners of the union movement”.
The attorney general said, “Why is it that the Labor party, from Mr Shorten down, is so determined to close down a royal commission whose role is to expose corruption in the trade union movement?”
The employment minister, Eric Abetz, called on the Labor party to abandon its “shameful attempt to drag the parliament and the governor general into this matter through a self-serving political stunt in the Senate” and to “end their vicious, self-motivated campaign against the highly esteemed and independent royal commissioner”.
But Labor said the commisssion had “descended into high farce, riddled with political bias”.
Shorten accused the prime minister, Tony Abbott, of failing to show leadership and said it was now up to the parliament to act.
“Australians can see right through this; they know bias when they see it,” he said.
“Everything the royal commission says may as well have a Liberal party logo stamped on it. This is $80m of your money being spent for Tony Abbott’s smear campaign.”
The shadow attorney general, Mark Dreyfus, said there was no doubt “that this scandal has damaged the royal commission beyond repair”.
He said the invitation to the Sir Garfield Barwick event was complete with a Liberal party logo, had instructions about making cheques payable to the Liberal party, and mentioned that all proceeds would go into state election campaigning.
“It’s clear that Australians no longer have confidence in the royal commission to operate free from political bias,” Dreyfus said.
He dismissed the government’s characterisation of Labor’s stance, saying the Coalition should “reconsider our proposal in February last year for a high-powered national joint police taskforce to tackle any criminality”.
The Greens MP Adam Bandt said Abbott should step in to bring the inquiry to an end because its work would “forever be tarnished”.
Heydon, the sole commissioner of the inquiry, rejected the union applications and defended his impartiality in a 67-page decision delivered in Sydney on Monday.
Unions have left the door open to further legal steps, arguing that any findings of the royal commission – due in December – would be “terminally tarnished” because of the row over Heydon’s initial agreement to speak at a Liberal party event.
The attorney general, George Brandis, called for an end to the attacks on “one of the finest intellects in this country” but the Labor party signalled it would press ahead next week with attempts to pass a motion in the Senate asking the governor general, Peter Cosgrove, to intervene.
Heydon, who is a former high court judge, rejected submissions from unions that his agreement to deliver the Sir Garfield Barwick address met the legal test of apprehended bias.
“I have concluded that 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,” he said.
The ACTU secretary, Dave Oliver, said the peak union body would consider and read the reasons for the decision, consult its lawyers and talk to affiliates before announcing whether it would make an application to the federal court.
“Despite the decision today of Dyson Heydon, the reality is that this royal commission is now terminally tarnished. Any recommendation out of this can’t be taken seriously,” he said.
The union applications had sought to rely on the legal test, in a 2000 case, that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
The ACTU argued it was a relatively low threshold because of the inclusion of “might” twice. The union representatives focused on Heydon’s agreement to give the Sir Garfield Barwick address – a Liberal party event – and its effect on perceptions of his ability to decide on the commission’s work impartially.
In his decision, Heydon criticised some of the union submissions as “imprecise” and “not altogether easy to understand”.
But he argued that before disqualification “there must be something more than mere party membership or attendance at party functions, e.g. active support of the organisation, or substantial involvement, or proselytising”.
He suggested his own conduct was passive. “How does agreeing to give a public address to a gathering assembled by the chairs of two lawyer branches indicate support which enables an inference that one of the offending characteristics exist?
“Subject to the content of an address, to give an address does not by itself indicate that the speaker supports the views of any person in the gathering. But an address about a topic unrelated to the possible goals of the party with which the two lawyer groups are associated cannot give rise to an apprehension of bias. In that example there is no proselytising and no substantial party activity.”
Heydon said his “understanding at all times has been that the dinner was not to be a fundraiser” for the Liberal party.
The government – which had signalled it was prepared to consider appointing a new commissioner if Heydon had recused himself – said it was “pleased” with the decision.
Brandis called on the Labor leader, Bill Shorten, and the trade union leadership “to stop trying to run interference on a royal commission that is shining a light on the dark corners of the union movement”.
The attorney general said, “Why is it that the Labor party, from Mr Shorten down, is so determined to close down a royal commission whose role is to expose corruption in the trade union movement?”
The employment minister, Eric Abetz, called on the Labor party to abandon its “shameful attempt to drag the parliament and the governor general into this matter through a self-serving political stunt in the Senate” and to “end their vicious, self-motivated campaign against the highly esteemed and independent royal commissioner”.
But Labor said the commisssion had “descended into high farce, riddled with political bias”.
Shorten accused the prime minister, Tony Abbott, of failing to show leadership and said it was now up to the parliament to act.
“Australians can see right through this; they know bias when they see it,” he said.
“Everything the royal commission says may as well have a Liberal party logo stamped on it. This is $80m of your money being spent for Tony Abbott’s smear campaign.”
The shadow attorney general, Mark Dreyfus, said there was no doubt “that this scandal has damaged the royal commission beyond repair”.
He said the invitation to the Sir Garfield Barwick event was complete with a Liberal party logo, had instructions about making cheques payable to the Liberal party, and mentioned that all proceeds would go into state election campaigning.
“It’s clear that Australians no longer have confidence in the royal commission to operate free from political bias,” Dreyfus said.
He dismissed the government’s characterisation of Labor’s stance, saying the Coalition should “reconsider our proposal in February last year for a high-powered national joint police taskforce to tackle any criminality”.
The Greens MP Adam Bandt said Abbott should step in to bring the inquiry to an end because its work would “forever be tarnished”.
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