Wednesday, 2 September 2015

Confected Outrage: The Dyson Heydon scandal

Here is the quick and dirty version of what's happened so far:

  • Abbott creates the Royal Commission into Trade Union Corruption, and appoints a famous Liberal jurist, former High Court Judge Dyson Heydon as the Commissioner. 
  • Before the Commission starts Heydon receives and accepts an invitation to talk at a Liberal Party fundraiser. 
  • The Commission proceeds, and extends longer than expected. 
  • The Unions become aware of the fundraiser, and cause a shit-storm. 
  • Heydon is asked to recuse himself. 
  • Heydon refuses. 
What happens now is up to speculation, but it is probably safe to assume that the Unions will appeal his refusal to recuse himself to the Courts, leading to the unique position where a former member of the highest Court in the land is being judged by his former inferiors. 

But here's the thing - I don't care if Heydon was going to speak at a Liberal Party fundraiser (just so long as he didn't get there by chopper on the public dime!)

Let's put this in perspective. Heydon has never hidden the fact that he is a conservative. Indeed, he wouldn't have been selected by Abbott to head the Royal Commission if he was anything but! This isn't new, it isn't surprising, and it isn't uncommon. 

So, it isn't surprising that he was asked to speak at a Liberal fundraiser, nor that he accepted. Indeed, if the fundraiser had been 3 weeks after the end of the Commission, nobody would have batted an eyelid! But because the fundraiser was DURING the Commission, suddenly everyone is accusing him of bias! This is totally inconsistent; we knew he was biased, (or at least the facts which support the accusation of bias aren't new), and the Unions didn't do anything about it!

Let me be clear: I think having an arch-conservative lead a commission into the Trade Unions, traditionally the basis of Labor's power, is ridiculous, but how many Royal Commissions have been politically motivated? With some notable exceptions, I would argue that most of them have been! 

This Royal Commission has clearly been a political witch-hunt. It has called Gillard, Shorten, and a whole host of other Labor personnel into the spotlight in a transparent effort to discredit them. So we should be condemning this whole Commission, right?

Well, not really, because there is no doubt that the Unions have been corrupt in so many ways. Slush funds are the least of it! So there is no doubt that a proper investigation is warranted. 

I argue that the Royal Commission is the wrong way to investigate offences, and that the police should have been given a mandate to investigate all instances of alleged corruption, but that's a story for another day. We have the Commission, and it is investigating corruption, and that is a good thing. 

So I accept that the Commission exists. I accept that it is headed by Heydon, who I accept is an arch-conservative. I accept that there is no other way the Commission would ever have been created by a Coalition government! I also accept the fact that he speaks at Liberal party fundraisers. I don't actually care! 

I also respect Heydon as a former High Court Judge, and he has shown over many years that he has a truly exceptional legal mind. 

He has been a little stupid in some ways, and criticising counsel for not reading something carefully has come back to bite him, but in this case, his biggest failure was being naive in not cancelling the fundraiser, because of what it would look like. 

Let me put it another way. The allegation of apprehended bias is based on the fact that he accepted an invitation to speak at a fundraiser, but the strength of that allegation is nothing compared to the facts already on the record about his political leanings. Why are we surprised? What exactly has changed?