As I understand it, the ACTU case against Royal Commissioner Dyson Heydon is not that he is biased, but that an average person might think he was biased.
Now I would have thought the only reason a royal commissioner should be stood aside is if there is a reasonable apprehension that he might be biased. The ACTU case explicitly admits that he isn’t biased.
We know that you’re the Honourable Dyson Heydon. When I say we, I mean the lawyers in this room, and we know that you have particular skills as a lawyer and as a judge and for that matter as an academic.
This is then contrasted to what the person without those advantages might think. But as they have already admitted that no reasonable person who knows him could think he was biased, then it would be an unreasonable assumption for that person to think he was biased.
So, one boomerang down.
But there is another. What bias could be said to be exhibited by being the guest speaker at a Liberal Party hosted function (describing this one as a fundraiser is risible given that $80 a head with an audience of 80 or so people would barely cover costs)?
Well, it might be said that you were biased against the ALP, but it could hardly mean that you were biased against anything else.
For example, plenty of union members vote Liberal and attend Liberal Party functions. I’d be pretty sure that there would be the odd one who had addressed Liberal Party functions. Even if Heydon did vote Liberal, and had showed he supported the party by his aborted acceptance of a guest speaking engagement, how does that affect his potential for bias against the union movement? Unionism and the Liberal Party are not inconsistent.
If apprehended bias were this broad, then no one who had ever had a political party involvement at any level could be appointed to any sort of judicial or quasi-judicial position.
Gillian Triggs has been pinged for attending Labor functions as a guest speaker, but what about the Fair Work Australian Commissioners? Many of these have Labor Party backgrounds. Is there a problem of bias here?
What if someone had worked for an employer organisation and had been involved with the Liberal Party, or spoken at a Liberal function, would they be ineligible for appointment to the Fair Work Commission because they were “biased” against the union movement?
That position seems untenable and preposterous.
It could really only be said that Liberal Party involvement probably makes you biased against the ALP. But this commission is not about the ALP, it is about the union movement.
Which is where the boomerang hits the ACTU on the head. This argument can only make sense if it rests on the assumption that the unions are the ALP.
In which case what they are really saying is that the wrongdoing that Heydon is looking at isn’t just union wrongdoing, but Labor wrongdoing.
And we have a real problem in Australia if one of our major political parties is this crooked. And it seems the ACTU thinks it is.
Yes Graham and something not to be “OVERLOOKED”!
I predict many of the future witnesses are going to come down with this same sort of memory failure or oversight?
In any event even though overseen by a very fine Jurist, I believe every finding of this commision is now tainted by the perception of patent partisan political bias?
Or put another way, Justice must not only be done but seen to be done?
In which case, I believe, a very fine and honorable Jurist would have no other honour based choice other than rule himself out, on the second of these grounds?
But particularly where much of the evidence remains untested and unchallenged!
If it barks like a political witch hunt, runs like a political witch hunt, and bites like a political witch hunt?
It probably is a political witch hunt?
Alan B. Goulding.
Comment by Alan B. Goulding — August 23, 2015 @ 10:19 am
By definition the word ‘bias’ includes ‘inclination, predisposition (towards), prejudicial and influence’. If Commissioner Heydon can be considered (by Labor) as not a biased person, he must be accepted as not prejudicial; it follows that he must be considered able to make a decision based on facts formally presented to him, regardless of the forum. I would imagine such a person to be ideal for the position he holds, regardless of any personal political pursuasion. After all we have compulsory voting and every citizen must make a ‘political’ decision. I imagine there are voters who favour some specific policies of parties other than the one for which they vote. Application of the twisted blustering logic of Labor could see every magistrate and judge in Australia banned from sitting. Let this good person get on with the job!
Comment by Jack Lynch — August 23, 2015 @ 1:54 pm
Well Graham, givin the number of union employees, both past and present, who have been referred to either Federal or State authorities for “criminal” investigations already to date, I am not at all surprised the ACTU and Labor want this thing stopped in its tracks.
Bias, whether there or not in relation to the Commissioner, does not detract from the criminal investigations that are or will be underway as a result of this Royal Commission.
Labor is running scared, as they should be, mainly because of the illegal deals and corruption the Commission will reveal if permitted to run its natural course.
I can’t wait to see the end results should the RC completes its business as it should be able to.
Enough said!
Comment by Geoff Botting — August 24, 2015 @ 1:42 am
The elimination of corrupt officials from the union movement is far too important for this commissioner to fail or be rendered irrelevant, due to a perceived (not real) conflict of interests?
Which can be relied on by the entire, pure as the driven slush, union movement and their silks to emasculate the commission where possible!?
Better that we save what trusted credible evidence can be saved?
And only doable, in my view, with a brand new, untainted by a perceived conflict of interest, Commissioner?
Without prejudging or prejudice, I believe, a truly honorable and fine jurist would facilitate, by removing himself?
Unless of course, this is a real get Bill Shorten political witch hunt?
Alan B. Goulding.
Comment by Alan B. Goulding — August 25, 2015 @ 11:00 am
“It could really only be said that Liberal Party involvement probably makes you biased against the ALP. But this commission is not about the ALP, it is about the union movement.
Which is where the boomerang hits the ACTU on the head. This argument can only make sense if it rests on the assumption that the unions are the ALP.”
Which is why the union lawyers strenuously made the point that The Unions are The ALP, and vice versa. Their argument, therefore, was that the ordinary person on the Clapham omnibus would reasonably conclude that this is the case.
Which makes your point valid. If their is corruption in the unions, there is corruption in the labor party.
Comment by Dillio — August 31, 2015 @ 8:24 am