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Issue #1701      September 9, 2015

Justice done ... like a dinner

It took just a few minutes for Justice Dyson Heydon to announce that he was staying put as Commissioner of the so-called Royal Commission into Trade Union Governance and Corruption. That was it. His defence was published in a 67-page decision. Hearings would recommence the next day, September 1.

Royal Commission into Trade Union Governance and Corruption.

“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,” Heydon said.

Essentially the question was whether a fair-minded person would perceive Heydon as being politically biased for agreeing to speak at a Liberal Party fundraiser – the Sir Garfield Barwick annual address.

This is a Commission that by its very title presumes corruption in the trade union movement and excludes an “even-handed” investigation of corruption amongst employers.

Heydon argued that the speech he was giving was on legal matters, not political. That accepting the invitation did not mean a person believed in, supported or had any relevant association with the Liberal Party. He also argued that there was no connection with how the Commission had been run, that a fair minded person might conclude that a former judge or highly experienced lawyer would be objective.

In reality he was judging his own evidence – his claims that he had not noticed the Liberal Party logo, had not read the parts of the email laid open for him on his desk that mentioned fundraising for the Liberal Party. Did he believe his own statements?

Barwick the politician

Putting those issues aside, there is still the question of the event itself. It is an event organised by Liberal Party lawyers to honour Sir Garfield Barwick, a man they hold in great esteem. And a man reviled by many on the labour side of politics. The significance of being the star attraction at an event to honour Barwick seems to have been overlooked.

Prior to his 17 years as Chief Justice of the High Court, Barwick was a Liberal Party MP (1958-1966) and served in the Menzies Liberal government as Attorney General (1958-64) and Minister for External Affairs (1961-64).

When Governor-General Sir John Kerr sacked the Whitlam Labor government on November 11, 1975, it was following advice on the constitutional legality of such action from Barwick.

As Attorney-General, he was responsible for some of the most draconian and anti-democratic legislation. The main targets of the legislation were the Communist Party of Australia which Menzies had unsuccessfully attempted to ban in 1951* and the trade union movement.

Garfield claimed his amendments to the Crimes Act were necessary for defence and security.

The Waterside Workers’ Federation summed their purpose up in a pamphlet How the Crimes Bill Makes Hidden Attacks on Democratic Rights: “They are designed to cripple the Labour Movement, to silence the critics of the government’s foreign and domestic policy.” (The WWF is now part of the Maritime Union of Australia (MUA).)

“The new provision of the offence of ‘sabotage’ is aimed directly at the Trade Union Movement,” the WWF warned. The definition of sabotage was so wide that a strike by any group of workers could be declared “sabotage”. Those taking action faced 15-year jail sentences.

“Sabotage” is defined as the “destruction, damage, or impairment for a purpose prejudicial or intended to be prejudicial to the safety or defence of the Commonwealth, of any article.”

The reference to “any article” is expanded upon: “It is in or forms any part of any railway, road, way, or channel, or other means of communication by land or water (including any works or structures being part thereof or connected therewith,) or any place used for gas, water, electricity works, or other works for purposes of a public character. ...”

Garfield’s provisions for “treason” were just as broad, aimed at opposition to the government’s foreign policy. Both offences carried the penalty of life imprisonment.

In fact there were strong similarities with much of the “anti-terrorism” legislation introduced by current Attorney-General George Brandis.

“What we are left with now is a multi-million dollar Royal Commission that is tainted – everything that has happened until now and everything that will happen in the future is stained by these events,” Australian Council of Trade Unions secretary Dave Oliver said.

Abbott and his side-kick Eric Abetz will use the findings of the Royal Commission to try to justify the next round of anti-union, anti-worker measures, some of which are contained in the recently released Productivity Commission’s report.

Public perception

The Sydney Morning Herald’s website poll (August 13-15) asked readers: “Should Dyson Heydon stand aside from the royal commission into union corruption?”

Yes, the appearance of his impartiality has been damaged and he should make way for another royal commissioner: 33%

No, his scheduled appearance at the fundraiser is no reason for the former High Court judge to quit his role: 8%

Yes, and the royal commission should immediately be scrapped: 58%

Not sure: 3%

Its fair-minded readers have spoken! The Guardian adds its vote to scrapping the Commission.

* The legislation to ban the CPA was overturned in a Constitutional Challenge and then defeated in a referendum.

Next article – Traditional owners in mine challenge

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