Whatever else he might be, John Dyson Heydon is no fool. When he accepted the job of royal commissioner inquiring into trade union governance and corruption, he knew what was expected of him.
The commission was set up as a political witch-hunt into unions, designed to give the federal Coalition government an issue with which it thought it could win the next election. Heydon was happy to oblige and has been handsomely paid for doing so.
Even the most ardent Coalition government supporters in the right-wing media said at the outset that Heydon would have his work cut out convincing the public that the inquiry wasn not politically partisan. He has failed miserably.
Heydon and his counsel assisting, Jeremy Stoljar, were hopelessly biased in favour of the HSU’s Kathy Jackson when she first appeared before them.
They were equally biased against the secretary of the Health Services Union, Chris Brown. He was treated like a hostile witness when he gave evidence to the commission concerning Jackson’s alleged misappropriation of HSU funds. Jackson has since been ordered by the Federal Court to repay $1.4 million to the HSU.
The commission was biased from the outset and the extent of the royal commissioner’s bias is now there for all to see.
When it emerged that Heydon had agreed to give the Garfield Barwick Address at a Liberal Party fundraiser after he had been appointed royal commissioner, he heard submissions from the Australian Workers Union, the Construction Forestry Mining Energy Union and the Australian Council of Trade Unions (ACTU) acting on behalf of five unions, that he stand down because of his apprehended bias.
Heydon reserved his decision, and before he had determined whether to stand down a report appeared in The Australian on August 27 showing that Stoljar was told on August 12 that the event was a Liberal Party fundraiser.
When Stoljar raised this with the royal commissioner the next day, August 13, Heydon told him that his information was that it was not a fundraiser and he intended to go ahead with it. Heydon’s personal assistant emailed the fundraiser’s organiser to say he would give the address, while noting that if it were described as a Liberal Party fundraiser he would be unable to do so while he was royal commissioner.
Later in the day Heydon announced that he would not give the talk. His statement also said that his cancellation was “prior to any media inquiry being received”.
Documents revealing these exchanges were not released to the lawyers representing the unions even though they had asked for the complete disclosure of all relevant documents.
ACTU secretary Dave Oliver said: “We believe there has been inadequate disclosure of relevant documents made by the commission as to this matter.”
Heydon was then forced to call for further written submissions on his apprehended bias by 5pm on Friday August 28. At the same time, he indicated that he would finally hand down his decision on August 31 after delaying the announcement twice and taking weeks to decide what many had decided long ago.
Heydon’s appointment was as politically biased as the decision to hold the inquiry. Heydon was appointed because of his political bias.
As Green Left Weekly has previously reported, Heydon has addressed the right-wing think tank, the Centre for Independent Studies. He has also addressed the annual dinner held by the right-wing magazine Quadrant.
Quadrant was established in 1956 by the Australian Committee for Cultural Freedom, an organisation that was the Australian arm of the US anti-communist group the Congress for Cultural Freedom funded by the CIA.
Heydon gave an address at the 2004 Quadrant Dinner where he talked about “probity” — honesty and decency — which he said may be affected by conscious bias for or against a particular litigant or class of litigants. Judges who have such a bias or may reasonably be thought to have such a bias were, in Heydon’s view, compelled by the law to disqualify themselves.
But this does not apply to Heydon himself. In contrast with his usually vague and verbose judgements, he used a mere 13 words to dismiss the ACTU and unions’ application.
So this miserable farce will continue with Heydon at the helm. The unions are likely to now seek to have the proceedings stayed in the Federal Court.
In the meantime, the next union official to be called before the royal commission might do worse than refuse to answer questions on the grounds that they have a very genuine apprehension of bias.