Dyson Heydon judges himself

The Australian Council of Trade Unions (ACTU) will ask the royal commissioner into trade union corruption, Dyson Heydon, to disqualify himself – an application he will hear today.

If the move is unsuccessful, the unions will appeal to higher courts.

Professor Nicholas Cowdery QC thinks Justice Heydon can be impartial in judging himself. You see, it’s the training of the legal mind.

Cowdrey did not think the revelations about the Sir Garfield Barwick address were grounds for Justice Heydon to disqualify himself.

Julian Burnside has a different view:

“I think he is an honourable person and I think in the circumstances an honourable person would step aside.”

John Barron asks Who is the royal commissioner being urged to resign over Liberal links? In an article well worth reading, Barron says Heydon was known as the “The Great Loner” on the High Court of Australia. A very black letter lawyer.

The question is raised as to whether judges are best placed to head royal commissions. The ‘adversarial’ system they are used to is very different from the ‘inquisitorial’ approach required.

Anna Olijnyk has done an Explainer on the notion of ‘apprehended bias’. The essence seems to be:

    The legal test for apprehended bias in this case is whether a “fair-minded lay observer” might reasonably apprehend that Heydon might not bring an impartial mind to his task as royal commissioner.

    The “fair-minded lay observer” is not a real person. He or she is a fictional person invented by the courts to help work out whether apprehended bias exists in any given situation.

    This fictional person is a layman, rather than a lawyer, so they need not understand legal technicalities. But the fair-minded lay observer’s opinion is not necessarily the same as mainstream public opinion. He or she is assumed to have a detailed knowledge of the situation – usually more detailed than appears from media reports – and is slow to jump to conclusions.

She examines the case in some detail rather than just delivering a verdict. She thinks Heydon’s controversial intervention in the evidence of Opposition Leader Bill Shorten before the royal commission in July is relevant. Finally:

    The outcome of any case will depend on the detail of the case mounted by both sides. On the available facts it is possible that Heydon’s position would not breach the legal rule against apprehended bias.

    Whether Heydon’s actions and those of the government that appointed him were prudent or popular is a separate question.

From Barron’s article, Heydon seems a person supremely confident of his ability as a judge. I don’t think he will exclude himself. Nevertheless if the ACTU appeals the work of the commission could be side-tracked for a very long time.

Mungo MacCallum thinks the damage is done:

    So this means that the rest of the proceedings, up till and into the final findings and their dissection, will lack a measure of credibility – unacceptable in the context of a forthcoming election campaign.

    Abbott was relying on his commission as another weapon to belt Shorten and all his works; now he has lost that battle before it has properly started.

Greg Barns believes It’s not a good look when judges are seen as judging themselves. He quotes Leslie Abramson, a professor of law at the Louis D Brandeis School of Law in Louisville Kentucky, who said in 1994:

    To permit the judge whose conduct or relationships prompted the motion to decide the motion erodes the necessary public confidence in the integrity of a judicial system which should rely on the presence of a neutral and detached judge to preside over all court proceedings.

Precisely!

60 thoughts on “Dyson Heydon judges himself”

  1. The media must think Christmas has come early, they are feasting on the disarray. Heydon’s integrity is the current dish on the table. It was thoughtless appointing Heydon if they were aware of any political links because it immediately raises the possibility of bias. That said though, has there actually been any bias displayed by Heydon? I don’t know, but if there has not been any bias then it is all about the possibility of bias which is not the same thing as actual bias.
    The media want us believe that the $60 million cost is trashed because of the possibility of bias. Labor, under some serious stress from testimony so far is pumping it as hard as it can just as you would expect. It suits them to denigrate the Royal Commission (RC) because it offers some protection from the outcome should it be found the unions (and therefore Labor) have misbehaved.
    However if the RC has been conducted with integrity then the outcomes should receive the force of those findings. If there is or has been corruption, those involved should be brought to book. If there has been bias, that should be challenged. But the main thrust of the RC should be kept front-of-mind, and not over-run by the media.
    It would be naive to expect the media to back off though. They sense that Abbott’s time is near, and Heydon is laying down another scent for them to follow. I won’t lament a change of prime minister, I would regret if the value of the RC was lost in the swill of politics.

  2. Geoff, thankyou for a sensible and balanced comment.

    From a layman’s perspective I don’t think there is a great deal in the Sir Garfield Barwick invitation. I do think it was a mistake for the Government to appoint such a conservative black letter judge. In other words, my worry is about a real bias.

    I thought he was careless in showing some prejudice in the way he attacked Bill Shorten. I doubt he understands the way industrial relations is handled in the real world, with workers and unions actually cooperating with management, who seem to have problems in communicating with their workforce.

    Blame in Heydon’s world is likely to accrue to the unions and workers, rather than the management, which in Australia, is amongst the worst in the industrialised world.

    Whether or not a royal commission was necessary, it’s hard to see anything useful coming out of it given where we are at.

  3. Heydon can legitimately decide that he should stand down from the commission on the basis of the ACTU motion or that the decision be referred to someone else who is seen to be an appropriate person to make this decision.
    However, under the circumstances, it would be bizarre for him to decide that there is no reason for him to stand down.
    In terms of the work done by the commission to date it appears to have highlighted some issues that will result in prosecutions. However, the job done on Shorten and the AWU appeared to be a gotcha exercise run by someone who didn’t have a clue about how industrial relations works in the real world. No matter what he thought accusing the leader of the opposition of being an unreliable witness instead of letting the facts talk for themselves raised a real perception of bias.

  4. I think bias is inherent in the title of the RC. It is only investigating the unions, when the employers deserve at least some scrutiny.

  5. Zoot I agree that the employers should be investigated too. Would only take a few years…

  6. Heydon was correct, plenty of other witness evidence contradicted Shorten. Shorten wasn’t in parliament or being interviewed by the ABC, he was expected to tell the truth or be called out, and was, by a Judge that can smell evasive bullshit a mile off.

    The ALP must reward the ABC making the unions a victim in all this. And they will.

    Being on the receiving end of union blackmail and threats ( as I have ) is not nice.
    ” Call the Police then ” they say ?
    I did……waiting…..waiting……nothing.

  7. I think I should also mention that Heydon is not the prosecutor, defender or witness and has handed down no finding. Nor did he speak at the forthcoming event ( obviously )
    Any charges of ” creating a perception of bias ” are to be levelled, look no further than the defendants and the left media.

  8. 1 last little thing before I sign of for the night.
    Have any of these ” journalists ” stated if they are members of a union ?
    You know, perceived bias an all…..

  9. Graham Richardson in today’s Australian (21/8/15) really stuck the boot into Heydon pointing out past attacks on Labor and that he accepted the invitation after becoming commissioner. Assuming Richardson got his information right (it was all checkable stuff) it is hard to see Heydon not sacking himself if he is fair dinkum.

  10. Jumpy, I’m sorry you received threats and the police didn’t help. Unfortunately shit happens.

    I think Heydon was the wrong man for the job. Unfortunately he seems to have blown it now, so we’ll get less out of the exercise than we might have done.

  11. The unions are un policed, and they act like it.
    The ALP/greens voted to keep it that way.

    If I am accused of doing something wrong I can be shut down and bankrupted by the Police, ASIC, ATO, qbcc, FairWork (sic), Fed Police, the unions by illegal methods, my Bank can freeze my accounts, Superannuation gestapo, WHSQ….and more.

    All on an accusation that will cost many thousands in lawyerfilth to defend, most unrecoverable.

    The unions just ignore FairWork rulings and laugh at a pissy fine. They’ve teamed up with the OMCs like the mafia. If by some miracle charges are dealt out it’s to some patsy protecting the likes of Shorten.

    Shit happens, indeed.

  12. Graham Richardson in today’s Australian (21/8/15) really stuck the boot into Heydon…….

    Biased, disregard all he says, facts or not ( that’s the ALP line, right ? )

  13. ( From another thread )

    Jumpy, I’m not dismissing anything. Shit is shit. The question is what to do about it.

    On the other thread I was just saying that whatever chance Justice Heydon had, seems he blew it. That’s all.

    Sure, not giving a speech nullifies all union crime if it nails Abbott in the polls, got it.

  14. Sure, not giving a speech nullifies all union crime if it nails Abbott in the polls, got it.

    To link that with anything I’ve said doesn’t make any sense, and is perverse.

  15. Imagine how Dyson Heydon feels about the Kardashian like perpetuation on nothingness, and the effect on a lifetime reputation, by the left.
    Perverse shit happening.

  16. You’re losing me with your Kardashian reference, but it’s a mess all around. Not just the fault of the left, however.

  17. Jumpy, you seem to have been offended by my comment.

    I said I was sorry that happened to you, and I truly am. That sort of stuff should not happen in a civilised society.

    I was not in any way being dismissive. I think you saw two words, saw red and missed my meaning. I have to take some responsibility for that, so I’m sorry.

    In my defence, if I were being dismissive, I would have said “shit happens”. In fact I said “unfortunately shit happens”.

    I’ve always been inclined to think that an inquiry was necessary. Problem is that Abbott’s aims were in part political, and the choice of a conservative, black letter lawyer to head it up was a mistake.

    Heydon in accepting the Liberal Party invitation was careless, so he has to accept some of the blame for the mess we are in with this one. There are plenty of others who contributed, including the media and the unions.

    I can’t blame the unions for raising the issue of “apprehended bias” however, because I think the bias is real. Justice Heydon was always going to have a bosses’ view of the world, in my opinion.

  18. Jumpy I hope you will allow me to speculate here.

    To me it sounded like your comments were driven by the dry bitterness that accrues after long periods of industrial shite. I’ve lived through that, as an employee and an employer.

  19. Brian

    Nuff said on the ” unfortunately shit happens ” thing. It’s a raw issue with me and close to the bone. I shouldn’t have expected you to understand how close my family was to ruin, what I was reluctantly forced to do or how widespread the problem is.

    I’ve always been inclined to think that an inquiry was necessary.

    Agreed.
    Labor were never going to set one up and if they did would have been view as a wet lettuce by half the voters.
    ( The ALP Senate union heavies won’t even pass the ABCC back in )
    As for the Commish, who then, even Fitzgerald had stronger political links both ways but was allowed to complete his work.
    Do we start inviting international referees for issues so close to politics ? Maybe.

  20. Geoff
    Something like that.
    Yet my neighbour, a retired MUA rep!, and I can still share a robust chat over a cold beer without any animosity.

    ( he even looks like Paddy Crumlin and they participate in a spitting comp at Patricks together !!)

  21. If Dyson Heydon doesn’t stand down the TURC won’t be worth pigshit.

    Really Paul ?
    And your experience in the area to make such an authoritative pronouncement is ?

  22. The testimony to date does not rely upon Heydon’s alleged bias. If Heydon is biased that should be apparent in the findings. Until then whether Heydon has erred or not, the facts are stand-alone evidence given as sworn testimony.

    To say the RC would be pigshit if Heydon remains is unlikely to be correct. I believe that he should remain because to step down would be an admission of bias that would devalue the RC. Perhaps in the introduction of the Report the bias controversy could find a place and readers could decide whether bias existed at one part or another.

  23. Geoff, sensible comment as usual.

    To me the lecture invitation thing was no biggie, and I think Heydon will think so too and carry on.

    The politics, spin and hype is another matter though, and unfortunately part of the reality, which might prove Paul B’s prediction true.

    Jumpy, before we leave this, I was genuinely surprised that you should have encountered such a problem with unions as a small operator in the provinces. I knew such thing occurred on major projects in the big smoke. It’s why the bosses liked Bill Shorten. When he was on the job things went fine.

    My own experience with unions when I worked for the govt was benign. We had a large and diverse staff with probably 9 unions involved. I can’t remember any problems whatsoever.

    We did work with the Queensland Teachers Union a bit, and they were professional and co-operative.

    My wife as a teacher was a member of the QTU and for a time a union rep for the school (someone had to do it).

    Teachers are foolish not to join, because they could always need support with legal liability if a child gets hurt.

    Also the union was a better channel of information about changes in Departmental policies. The official channel via the principal often didn’t work or was distorted by spin.

  24. Brian

    Jumpy, before we leave this, I was genuinely surprised that you should have encountered such a problem with unions as a small operator in the provinces.

    Perhaps it was an unfortunate culmination of events.
    Firstly, I actually joined a union in the early 90s to be allowed to do subby work at a local sugar mill, only 6 days work. Years later I get a threatening letter arguing I owed many hundreds of dollars. Apparently I had to resign or the clock keeps ticking.
    Anyway, I refused and harsh words were exchanged.

    Then I did a job a the local port where 1 overzealous union gent harassed the shit out of my men and I. Turns out to be the same chap. He happened to also have a brother and friends in a small local bikie chapter that he got very well paid to do stevedore shifts ( among other things ). Over the following weeks certain demands were given, refusal the reply, and treats issued.

    I’m not going into how the issue was solved, only to say the support and friendship I had shown to some truly troubled fellows in the past proved very helpful when they took matters unto themselves.

  25. Ta Brian.
    Consequently I’m a huge fan of having the ABCC back.
    The police are far to busy with seatbelt and bicycle helmet fines to deal with these sorts of thing.

    ( not dissing Coppers, they are ordered from above )

  26. I heard tonight that Justice Heydon will not announce his judgement tomorrow and that he has cancelled hearings of the RC scheduled for Wednesday.

  27. It seems that Justice Heydon will deliver his decision on Friday. My guess is that he’ll decide that there is no apprehended bias, but has to write a tight judgement that will stand up under appeal.

  28. I think you are right Brian, and the notion of a “tight” judgement is good.
    Funny though, as I read your comment, I associated with the raid on the CFMEU offices today. The raids were triggered by evidence already given. Are they perhaps hoping for some emphasis that will add some timely and visible substance to the Report?

  29. Shorten said that any illegal activity should be brought to the attention of the Police to investigate.
    Thats what the RC is trying to do, nothing more.

    I can understand why wrongdoers and there supporters would try to stop this but I will ignore their attempts, as should all fair minded, justice seeking Australians.

  30. Geoff, I didn’t hear about the raid on the CFMEU offices. Thanks for the heads up.

    Jumpy, there was certainly in part political motivation in the RC. But I’m just an observer, I really don’t know a lot about it. So I hope some good will come out of it.

  31. Brian

    Jumpy, there was certainly in part political motivation in the RC.

    Of course, every decision politicians make is.
    The hypocrisies lay with the folk that say their preferred party didn’t/doesn’t/won’t.

  32. Jumpy: The session on the AWU discovered that some cleaning companies were paying below award wages. (In other words were stealing from their employees.) No suggestion from the government or commission that this crime should be pursued.
    Refusing to pursue crimes against employees seems a wee bit biased to me.

  33. Dyson Heydon has now given himself until Monday.

    There’s a story around (in the Oz, I think, heard it on the ABC) that Heydon said he withdrew before any media involvement, whereas that is actually not true.

  34. John D companies are forever under scrutiny for any number of things. Regulatory oversight is always there and there are massive numbers of government employees on hand to manage those rules, right down to and including local government. I don’t see it s the role of the RC to dispense justice in situations where others are already charged with enforcement.

  35. John,

    I saw trying to avoid getting into the nitty gritty of each ( many thousands ) ” discovery ” uncovered by this RC, on this thread. But I would be more than happy to comment if you created one on these.

    Also happy to talk about employees and unions ” stealing ” from Businesses, and the ratio of perpetrators.

  36. Justice Heydon has refused the applications and will carry on. No surprise there.

    He tabled his reasons, so no doubt we’ll get the story in due course.

  37. What’s come through so far is that Heydon doesn’t have a computer, doesn’t read emails until they have been printed out for him. The attachment wouldn’t have been printed out.

  38. The word on the street is that the union controlled Superannuation fund managers/appointees just shat.

  39. I got the impression from Dave Oliver that the unions might not take the matter to the courts, but were certainly back to complaining about the Commission.

    Mark Dreyfus told Radio National, in a point clipped by TV News, what should happen instead of a RC:

    You don’t need a royal commission to investigate, you don’t need a royal commission to bring prosecutions. The Australian Crime Commission’s got coercive powers, police forces have got investigative powers, and we would have got, I think, far more bang for buck out of setting up a joint taskforce.

  40. People always say you don’t need a Royal Commission, let the police do their job, when they want something to stay buried. Plenty of conservatives said that about the RC on child abuse.

    Last night’s 4 Corners and another one earlier in the year highlighted employer exploitation of foreign workers and students. An RC on that by the next ALP government might be a good idea plus it might embarrass some of the Libs’ Big Business connections.

  41. A special joint taskforce is not just ‘letting the police do their job’. I’m sure they vary in their effectiveness but there is no reason to think they will be ineffective.

    The obvious advantage of the RC for the Abbott government is that it is very public and generates a continual stream of headlines which contain innuendo and allegations as well as facts. A taskforce would only be heard about when it produced results in charges and convictions.

    But I’m pretty much agnostic about the whole thing. I just wanted to highlight what the Labor alternative was, because it’s being elided in the MSM.

  42. It hasn’t been “elided” at all.

    From today’s Australian:

    Mr Dreyfus said the government would have achieved better “bang for buck” if it had established a joint taskforce of the Australian Crime Commission and police forces to quietly investigate allegations of wrongdoing. He committed the opposition to bringing forward a Senate motion next Monday that, if passed, would petition Governor-General Peter Cosgrove to intervene and sack the royal commissioner.

    I also heard it on the news last night.

  43. Mr Dreyfus said the government would have achieved better “bang for buck” if it had established a joint taskforce of the Australian Crime Commission and police forces to quietly investigate allegations of wrongdoing.

    So why didn’t he when in Government for 6 years ?
    ( Not that ” bang for buck ” was ever a consideration with them. )

  44. Agreed, Jumpy. This RC is doing the unions and the ALP a big favour by helping clean out the bad guys who keep embarrassing organised labour and the ALP. Hopefully the upshot of this RC will be union regulation that is tough enough to stop unions sliding back in to corruption and malfeasance.

    We also need to start jailing employers who exploit workers, like they do in the US. If it was up to me, the chap who owns the Oz rights for 7-11 would spend the rest of his life in jail and his assets would be liquidated to compensate the workers his franchisees have exploited. This can’t happen at the moment because Oz regulation of employers only has cream powder-puff penalties.

  45. Karen, good to hear. I don’t normally read the Oz.

    Dr Anna Olijnyk is a law lecturer at Adelaide University gives a knowledgeable and balanced view. She thinks the issue was finely balanced legally and an appeal court could take a different view.

    I think much hangs on what characteristics a hypothetical “fair-minded lay observer” might have. Dyson seems to see this person as highly rational, making precise logical distinctions.

  46. Unions today are large financial businesses that should comply, and be seen to be complying by its ” shareholders” with the same regulatory, reporting and auditing conditions as any other business.

    They are now conglomerates that play by special rules and enjoy tax free status. Just like churches. They become magnets for the scum that rely on secrecy and trust to do their thing.
    And like churches the worst rise toward the top more than the honest.

  47. And in case anyone thinks this is a 50/50, us/them, left/right, ALP/LNP issue, it’s not.
    83% of the Australian worker choose not to be in any union at all.
    And that percentage is increasing year on year.
    Throw in all the employers and the union are small beans.

  48. Throw in all the employers and the union are small beans.

    Yet somehow control National and State policy for half the time?
    Bizarre !

  49. Jumpy, are you finished your anti-union tirade?

    My wife had a career in teaching and no sensible person in the game would choose not to be in the union.

    83% of the Australian worker choose not to be in any union at all

    My younger son worked for a while in bike shops, which were not unionized. He had no realistic choice at all.

  50. Jumpy

    Workers get the benefit of any enterprise agreement struck by the union without having to be a member. This encourages free-riding. In my last paid job, many years ago, I quit the union and became a free-rider. Most of my co-workers did the same, so I didn’t see much point in being a sucker.

    Free-riders aren’t necessarily unhappy with the job the union is doing.

    Change the law to eliminate free-riding, which incidentally is what economic orthodoxy would advise, and union membership would bounce back up.

  51. Karen ” Workers get the benefit of any enterprise agreement struck by the union without having to be a member.” This is true enough, but it workers may also get the negatives as well. For example they may not be able to negotiate a different pay scale or benefits.

    “Change the law to eliminate free-riding,…” Would you say a bit more about that please.

  52. The AFR reports that the unions are luke warm about a court challenge. There is a fair chance they’ll lose, which wouldn’t be good.

    If they win, the RC will go on for ever.

    And it costs.

  53. Brian

    My wife had a career in teaching and no sensible person in the game would choose not to be in the union.

    According to the ABS (2010 ) the amount of teachers you regard as not sensible was 58%.
    Fair call.
    ( although I would have guessed much higher )

    And anyone can join any union they want, no matter their occupation. Just look at most of the union secretaries, they’re all lawyer no matter what Trade.

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