The Politics    Friday, August 21, 2015

The calm before the storm

By Sean Kelly

Source
The Royal Commission proceeded calmly today. The political debate will not

Dyson Heydon, former High Court judge and current Commissioner of the Royal Commission into Trade Unions, heard submissions this morning on the vexed question of whether he should keep his job.

As is usually the case with legal exchanges, the arguments put by lawyers for various unions – that Heydon should step down on the grounds of apprehended bias – were delivered quietly and calmly. Heydon responded in similar fashion, as is his wont. The man has a magnificent voice that is only made more magnificent by the restraint with which it is deployed.

The quiet pace was appropriate for that most awkward of exchanges: a request by lawyers for the person judging them (or their clients) to sack himself. There is no way of making such an occasion less awkward, save by the determined application of formality.

There were some rare moments of drama, themselves made more dramatic by the surrounds, like the quiet teacher whose occasional angry whisper is lethal. There was a dispute about whether Heydon had in fact provided all the relevant documents, after he had earlier declared he had done so. The ACTU’s lawyer, Robert Newlinds SC, was quick and clear: “Boy, you’ve got to be confident when you tell someone they’ve got all the documents, and you were wrong when you told me that.”

It wasn’t a fatal blow, just – as the political cliché goes – a flesh wound. But Heydon needed the flesh wounds to stop coming after Day 1 of this story. Instead, they have kept on: first, the original invitation; then the full and damaging email exchange which made clear the event’s status as Liberal fundraiser; then the fact Heydon had helped give PM Tony Abbott a Rhodes scholarship, trivial in itself perhaps; the speech Heydon gave in recent years, while not Commissioner, disparaging the Rudd and Gillard governments; and today this confusion, made more damning by Heydon’s earlier attempt to hurry the unions up, perhaps when they did not yet have full access to all documents.

Enough flesh wounds on the same patch of skin and you get pretty close to bone.

The same goes for the prime minister, of course. Heydon has flagged that he is likely to decide his own fate on Tuesday. By then this controversy will have lasted almost two weeks, and may have more to run, should the unions and the ALP pursue the matter through other avenues. That is after three weeks of the Bronwyn Bishop controversy, a dreadful period for the government interrupted only by Cabinet leaks and a spat over same-sex marriage.

There is no good ending to this scandal for the PM. Either Heydon stays, casting doubt on everything the Commission recommends, and thus on the case Abbott hoped to make against Labor and the unions, or he goes, in which case there will have been a spectacle of sufficient magnitude that it may taint the Commission anyway, should the hearings continue.

At least the latter scenario means some good may come of the Commission and the millions of dollars spent on it. It is possible to be both sceptical of the initial reason for its establishment and open to its practical achievements. The Commisison is a witch-hunt, but there are also problems in some unions; the Commission may root some of them out.

But not with Heydon at the helm. Newlinds set out the legal test he wanted applied: “the submission is that the reasonable observer might apprehend that you might not be able to bring an impartial mind to the issues at hand”. That is an established test. The question is not, as some commentators have tried to make out, whether Heydon is biased. Nor is the question whether Heydon thinks he appears biased. The question is whether a layperson might think that Heydon might not be able to bring an impartial mind.

Regardless of what happens, and despite the calmness displayed by the lawyers, next Tuesday is likely to bring on a political shouting match. It will not be pretty. And whatever is said, Abbott, Heydon, and the Royal Commission will all come out significantly the worse for wear.

 

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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.

@mrseankelly

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