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Issue #1699      August 26, 2015

Scrap the Commission

For more than 15 months the media has run a regular stream of unproven allegations of union corruption and coercion as if they were fact. Labor and trade union leaders have been subjected to intense interrogation and their reputations sullied. Now the tables have turned; it is Abbott’s $52 million trade union Royal Commission and its Commissioner whose credibility is at stake. On Friday August 21, it was the Commissioner, former High Court judge Dyson Heydon, who was on trial following revelations that he had accepted an invitation to a Liberal Party fund-raiser.

Former High Court judge Dyson Heydon
Former High Court judge Dyson Heydon

Heydon sat quietly as legal representatives for the ACTU* (representing the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; the Health Services Union; the Transport Workers Union of Australia; Maritime Union of Australia; and Unions NSW), the Construction Forestry Mining and Energy Union and the Australian Workers Union argued their cases for him to stand down from the Commission.

The unions used a well-established test to argue their case: “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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial...(emphasis added by ACTU).” (Ebner v Official Trustee in Bankruptcy (2000))

They did not accuse Commissioner of bias, but “apprehension of bias”.

Liberal fund-raiser

The correspondence between the organisers of the 2015 Barwick Address to Heydon for the Address this month made it clear that it was a fundraiser for the Liberal Party. There was even a form to fill in to send a donation for anyone unable to attend.

As recently as April this year an agreed date in August was set. But regardless of whether Heydon had forgotten it was a Liberal Party function, had not noticed the large blue Liberal Party logo on the invites or donation form, the fact he took on the role of Commissioner is in itself suggestive of bias.

Further doubts have been raised when revealed this week that Justice Heydon sat on a panel that approved PM Abbott’s Rhodes scholarship in the 1980s.

Built-in bias

In a speech to a Quadrant magazine dinner in 2004, he was highly critical of “judicial activism”, saying it went beyond what was necessary to resolve a dispute to serve some “illegitimate function” which furthered “some political, moral or social program.”

What better way to describe the Commission – an “illegitimate function” to further “some political, moral or social program.”

A “fair-minded lay observer” might reasonably see the title and terms of reference of the Royal Commission as biased, regardless of who accepted the Commission. The employers and their Liberal Party political representatives are excluded as if they were cleanskins.

Abbott had learnt the lessons of two previous Royal Commissions into unions.

The Cole Commission (2001-2003) looked into alleged misconduct in the building and construction industry. It did what it was asked to do and embarrassingly for the Howard government it turned up criminal and corrupt conduct amongst employers. None-the-less, it was used to justify the establishment of the Australian Building and Construction Commission (ABCC) to police and hound trade unions.

Former Coalition Prime Minister Malcolm Fraser set up the Costigan Royal Commission into the Painters and Dockers Union (1980-1982). Its inquiries exposed the so-called “bottom of the harbour” tax evasion schemes. More seriously, the Commission implicated a prominent Australian businessman codenamed the “Goanna” in tax evasion and organised crime, including drug trafficking. Rumours abounded regarding Kerry Packer – again not the outcome desired by the government.

The terms of reference on this occasion were narrowed to ensure the real criminals, the current “Goannas”, were protected.

Witch hunt

The actions of the Commission are unprecedented. Former Labor Prime Minister Julia Gillard and the current parliamentary leader of the ALP Bill Shorten have been hauled before the Commission and interrogated.

Like many of the others who have appeared, no criminal or corrupt activities have been found, but their reputations have suffered. Innocent trade unionists and their families have been put under considerable and needless stress and pain.

The usual rules of fairness associated with the judicial system have been denied. Accusations appear as fact. Unions have been denied the right for a legal representative to cross-examine witnesses making allegations about corruption.

Royal Commission failed

After more than 15 months the Commission has failed to prove “rampant unlawfulness” in the trade union movement. A few individuals are facing criminal charges which could easily have been investigated by the police and laid without sullying the reputations of others.

As the trade unions have consistently pointed out, there is no shortage of laws to deal with criminal activity by individuals. There is no need for the Commission.

Abbott has had a bad month. The credibility of the Royal Commission is in tatters. The Australian Building and Construction Commission legislation has been blocked for a second time in the Senate. The Productivity Commission’s draft report on industrial relations, as anti-union as it is, did not go far enough as far as many employers are concerned.

The Royal Commission was one of Abbott’s main weapons against the trade union movement and the ALP. It has failed to do the job he intended. Heydon’s comments about opposition leader Bill Shorten’s lack of credibility have lost their impact. It’s the Royal Commissioner whose credibility is at issue now.

In a strange twist of the law, it is Heydon who is deliberating on the evidence and determining his own fate. His decision had not been delivered at the time of going to press. If he decides to hang in there, the unions could mount a court challenge.

Meanwhile Abbott should cut his losses and save the taxpayers by shutting down the Commission now.

* To see full ACTU submission:

Next article – Stop the TPP

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