The Politics    Friday, August 14, 2015

Why is Dyson Heydon acting like a politician?

By Sean Kelly

Every possible step needs to be taken to end this scandal.

The political response to political scandals tends to follow a predictable path.

The first move is to defend the scandal as no such thing. Facts might be denied; they might be muddied; the behaviour in question might be placed in context, or said to be the norm; the person at the centre of the scandal (the scandalee?) might be said to be beyond reproach.

Sometimes that puts an end to things, either because the scandal fails to reach a certain threshold of egregiousness, or because journalists simply run out of news. They can keep a story going, briefly, with attacks from political enemies, but at some point new facts are required. That is why the Bronwyn Bishop story did not die: she had left a long trail of similar behaviour behind her. Every day another drop of fuel was added to the fire.

If the scandal then continues to continue, the scandalee usually chooses to confront the facts, either via an exhaustive press conference, or by offering up an abject apology.

If neither of those approaches work then the scandalee must, at some point, make a decision, essentially pitting their own self-interest against that of their party: how much more damage are my colleagues prepared to take to prop me up? Either that or some other, bigger issue comes along and wipes the scandal off the front pages (as Peter Brent points out today – see the links section).

Right now, in the scandal over Trade Union Royal Commission head Dyson Heydon, we are just past the first stage. The facts have been muddied by what can at best be described as a very odd email trail; there have been some attempts to minimise the status of the Liberal Party fundraiser he was to attend; Liberal MPs have said he is beyond reproach and should not be attacked (rather missing the point that one is only ever beyond reproach until one isn’t).

So now we wait, to see what the second stage brings. Labor has continued swinging today, as have the Greens. The Commissioner took up his customary role conducting Royal Commission proceedings. There is certainly enough for a Day Two story.

But what happens now? Are there sufficient new facts to keep the story going? It seems doubtful that Heydon has a pattern of this type of behaviour, as Bishop did. The facts, then, will come down to what Heydon should have known and when he knew or should have known. There may also be questions asked about which Liberals were aware of the function.

That is why Labor is calling strongly today for all correspondence involving the function to be released. It realises this may be the only way of keeping the story alive, and maintaining pressure on both the prime minister and the Commissioner.

The ALP is fortunate that this story has broken while parliament is sitting. Question Time is often an effective way of keeping a spotlight where an opposition wants it.

Those are the politics. What of the substance?

Whatever its motivations, Labor is right to call for the correspondence to be made public. The strategies above are ones often employed by politicians. But Heydon is not a politician, with a sometimes conflicting set of responsibilities (to the parliament, to voters, to a party, to a party leader). He is a former High Court judge entrusted with a Royal Commission. His professional responsibility right now is simple: to ensure the Commission acquits the tasks it was given.

That is not possible as long as there is any doubt over Heydon’s role in all of this. In fact, as I said yesterday, I don’t think it’s possible as long as Heydon keeps his place – fairly or not, the perception of his impartiality has now been tarnished, and therefore his presence undermines the Commission’s ability to make findings which might be broadly accepted. A man of Heydon’s stature should see that, and take the necessary steps.

At present he seems unwilling to do that. At the very least he should recognise his responsibility to do everything he can to make the case that he never intended to address a Liberal Party fundraiser. That will involve complete disclosure.

At this early stage, with the intensity of the heat on him unclear, a politician might choose to pull up the drawbridge. Heydon is not a politician. He should not act like one.


Today’s links

Sean Kelly

Sean Kelly is a columnist for The Sydney Morning Herald and The Age, and was an adviser to Labor prime ministers Julia Gillard and Kevin Rudd.


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