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You can find the current article at its original source at http://www.theguardian.com/australia-news/live/2015/aug/31/dyson-heydon-to-reveal-future-at-helm-of-trade-union-royal-commission-live
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| Version 9 | Version 10 |
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| Dyson Heydon to stay on at helm of trade union royal commission – as it happened | Dyson Heydon to stay on at helm of trade union royal commission – as it happened |
| (12 days later) | |
| 7.59am BST | 7.59am BST |
| 07:59 | 07:59 |
| Summary of the day's events | Summary of the day's events |
| Thanks for joining me for our live coverage of Dyson Heydon’s decision to stay at the helm of the trade union royal commission. Read our news wrap here. | Thanks for joining me for our live coverage of Dyson Heydon’s decision to stay at the helm of the trade union royal commission. Read our news wrap here. |
| In summary: | In summary: |
| You can read Heydon’s full decision via this link. Good night. | You can read Heydon’s full decision via this link. Good night. |
| Updated | Updated |
| at 8.31am BST | at 8.31am BST |
| 7.07am BST | 7.07am BST |
| 07:07 | 07:07 |
| The shadow attorney general, Mark Dreyfus, won’t give an opinion about whether unions should apply to the federal court following Heydon’s decision to stay on. | The shadow attorney general, Mark Dreyfus, won’t give an opinion about whether unions should apply to the federal court following Heydon’s decision to stay on. |
| I’m not going to give legal advice to the unions. | I’m not going to give legal advice to the unions. |
| But Dreyfus says the invitation to the Sir Garfield Barwick event (which Heydon was due to speak at) was complete with Liberal logo, had instructions about making cheques payable to Liberal party, and mentioned that all proceeds would go into state election campaigning. | But Dreyfus says the invitation to the Sir Garfield Barwick event (which Heydon was due to speak at) was complete with Liberal logo, had instructions about making cheques payable to Liberal party, and mentioned that all proceeds would go into state election campaigning. |
| This is a Liberal party event. Dyson Heydon has associated himself with a Liberal party event. There’s the apprehension of bias that any fair-minded observer would bring. All Australians as a result have lost confidence in this royal commission. | This is a Liberal party event. Dyson Heydon has associated himself with a Liberal party event. There’s the apprehension of bias that any fair-minded observer would bring. All Australians as a result have lost confidence in this royal commission. |
| 6.52am BST | 6.52am BST |
| 06:52 | 06:52 |
| Some of the nation’s politicians have taken to Twitter to respond to the Heydon decision to stay on as head of the royal commission. | Some of the nation’s politicians have taken to Twitter to respond to the Heydon decision to stay on as head of the royal commission. |
| Here is the Liberal whip: | Here is the Liberal whip: |
| Wise decision Justice Heydon! The Royal Commission must continue. Too much union corruption already uncovered & more wrongdoing to come. | Wise decision Justice Heydon! The Royal Commission must continue. Too much union corruption already uncovered & more wrongdoing to come. |
| But others mocked the decision: | But others mocked the decision: |
| "am i biased? i don't think so. nope. not biased. no bias here. as you were. so. those unions, hey?" #turc | "am i biased? i don't think so. nope. not biased. no bias here. as you were. so. those unions, hey?" #turc |
| 6.42am BST | 6.42am BST |
| 06:42 | 06:42 |
| Labor says commission 'damaged beyond repair' and calls for new police taskforce | Labor says commission 'damaged beyond repair' and calls for new police taskforce |
| Labor’s shadow attorney general, Mark Dreyfus, has declared the royal commission ‘damaged beyond repair’. | Labor’s shadow attorney general, Mark Dreyfus, has declared the royal commission ‘damaged beyond repair’. |
| In a media release, he evidently disagrees with Heydon’s decision: | In a media release, he evidently disagrees with Heydon’s decision: |
| Tony Abbott’s royal commission has descended into high farce, riddled with political bias. | Tony Abbott’s royal commission has descended into high farce, riddled with political bias. |
| Labor has said from day one that Tony Abbott’s royal commission is an exercise to smear his political rivals - and taxpayers are copping the bill for $80m. | Labor has said from day one that Tony Abbott’s royal commission is an exercise to smear his political rivals - and taxpayers are copping the bill for $80m. |
| There is no doubt that this scandal has damaged the royal commission beyond repair. | There is no doubt that this scandal has damaged the royal commission beyond repair. |
| It’s clear that Australians no longer have confidence in the royal commission to operate free from political bias. | It’s clear that Australians no longer have confidence in the royal commission to operate free from political bias. |
| Tony Abbott should have accepted responsibility and removed Dyson Heydon AC QC from his commission - Dyson Heydon sat in judgment of himself because Tony Abbott has failed to act. | Tony Abbott should have accepted responsibility and removed Dyson Heydon AC QC from his commission - Dyson Heydon sat in judgment of himself because Tony Abbott has failed to act. |
| Labor’s concerns about Dyson Heydon’s conduct have not been satisfied by anything he has said today. | Labor’s concerns about Dyson Heydon’s conduct have not been satisfied by anything he has said today. |
| Dreyfus says Labor believes there should be zero tolerance for corruption or criminal activity in the workplace, and such conduct “should face the full force of the law, and be dealt with by the police”. | Dreyfus says Labor believes there should be zero tolerance for corruption or criminal activity in the workplace, and such conduct “should face the full force of the law, and be dealt with by the police”. |
| He wants the government to “reconsider our proposal in February last year for a high-powered national Joint Police Taskforce to tackle any criminality right now”. | He wants the government to “reconsider our proposal in February last year for a high-powered national Joint Police Taskforce to tackle any criminality right now”. |
| Updated | Updated |
| at 6.43am BST | at 6.43am BST |
| 6.28am BST | 6.28am BST |
| 06:28 | 06:28 |
| The attorney general, George Brandis, doesn’t take long until taking aim at the Labor leader, Bill Shorten, in the wake of Heydon’s decision. | The attorney general, George Brandis, doesn’t take long until taking aim at the Labor leader, Bill Shorten, in the wake of Heydon’s decision. |
| Mr Heydon’s royal commission is doing the work of exposing corruption in elements of the trade union movement. Why is it that the Labor Party, from Mr Shorten down, is so determined to close down a royal commission whose role is to expose corruption in the trade union movement? Mr Shorten and other Labor Party figures constantly say that they want the trade union movement to be free of corruption. If that is their objective, why would it be that they are determined to shut down the person, the process which has been established to expose the very corruption that they say they would like to see rooted out? | Mr Heydon’s royal commission is doing the work of exposing corruption in elements of the trade union movement. Why is it that the Labor Party, from Mr Shorten down, is so determined to close down a royal commission whose role is to expose corruption in the trade union movement? Mr Shorten and other Labor Party figures constantly say that they want the trade union movement to be free of corruption. If that is their objective, why would it be that they are determined to shut down the person, the process which has been established to expose the very corruption that they say they would like to see rooted out? |
| Brandis continues: | Brandis continues: |
| I’m calling on Mr Shorten and the Labor frontbench and the trade union leadership to stop trying to run interference on a royal commission that is shining a light on the dark corners of the union movement. | I’m calling on Mr Shorten and the Labor frontbench and the trade union leadership to stop trying to run interference on a royal commission that is shining a light on the dark corners of the union movement. |
| 6.23am BST | 6.23am BST |
| 06:23 | 06:23 |
| The attorney general, George Brandis, is holding a media conference in Brisbane to comment on the decision. | The attorney general, George Brandis, is holding a media conference in Brisbane to comment on the decision. |
| He takes a swipe at the ACTU secretary, Dave Oliver, for noting Heydon had made a ruling about himself. | He takes a swipe at the ACTU secretary, Dave Oliver, for noting Heydon had made a ruling about himself. |
| Brandis says: | Brandis says: |
| It is always the case that the application is made to the decision maker ... | It is always the case that the application is made to the decision maker ... |
| He notes such an application is a necessary step before an application can be made to a court for an injunction to restrain the decision maker. | He notes such an application is a necessary step before an application can be made to a court for an injunction to restrain the decision maker. |
| The suggestion that there is anything irregular about the fact that Mr Heydon made this ruling himself is entirely ignorant. | The suggestion that there is anything irregular about the fact that Mr Heydon made this ruling himself is entirely ignorant. |
| 6.21am BST | 6.21am BST |
| 06:21 | 06:21 |
| Heydon, when addressing the second strand of submission about a “Liberal fundraiser”, says: | Heydon, when addressing the second strand of submission about a “Liberal fundraiser”, says: |
| ...there is no reason to think that the fair-minded observer might apprehend that my intention in agreeing to give the Address was to raise funds or assist in raising funds or gathering support for the Liberal Party. Accordingly, there is no rational basis to conclude that a fair-minded observer might apprehend any predisposition on my part against the Labor Party. | ...there is no reason to think that the fair-minded observer might apprehend that my intention in agreeing to give the Address was to raise funds or assist in raising funds or gathering support for the Liberal Party. Accordingly, there is no rational basis to conclude that a fair-minded observer might apprehend any predisposition on my part against the Labor Party. |
| 6.18am BST | 6.18am BST |
| 06:18 | 06:18 |
| Heydon, addressing the first strand, says the applicants’ submissions had used a range of terms including Liberal party event, Liberal party function, party political event or a branch meeting - all of which were “lacking in any precise meaning”. | Heydon, addressing the first strand, says the applicants’ submissions had used a range of terms including Liberal party event, Liberal party function, party political event or a branch meeting - all of which were “lacking in any precise meaning”. |
| He says before disqualification “there must be something more than mere party membership or attendance at party functions, eg active support of the organisation, or substantial involvement, or proselytizing”. | He says before disqualification “there must be something more than mere party membership or attendance at party functions, eg active support of the organisation, or substantial involvement, or proselytizing”. |
| Heydon then defends his conduct as passive: | Heydon then defends his conduct as passive: |
| How does agreeing to give a public address to a gathering assembled by the Chairs of two lawyer branches indicate support which enables an inference that one of the offending characteristics exist? Subject to the content of an address, to give an address does not by itself indicate that the speaker supports the views of any person in the gathering. But an address about a topic unrelated to the possible goals of the Party with which the two lawyer groups are associated cannot give rise to an apprehension of bias. In that example there is no proselytizing and no substantial Party activity. | How does agreeing to give a public address to a gathering assembled by the Chairs of two lawyer branches indicate support which enables an inference that one of the offending characteristics exist? Subject to the content of an address, to give an address does not by itself indicate that the speaker supports the views of any person in the gathering. But an address about a topic unrelated to the possible goals of the Party with which the two lawyer groups are associated cannot give rise to an apprehension of bias. In that example there is no proselytizing and no substantial Party activity. |
| Heydon argues there was no secrecy about the address, and he also rejects “the suggestion that the address represents substantial party activity or involvement in raising funds”. | Heydon argues there was no secrecy about the address, and he also rejects “the suggestion that the address represents substantial party activity or involvement in raising funds”. |
| He says the applicants have failed to articulate “why, and there is no rational basis for concluding, that a fair-minded observer might, acting reasonably, apprehend any predisposition against the Labor Party or the unions in a speaker who merely agrees to give a legal speech at an event with the characteristics last described”. | He says the applicants have failed to articulate “why, and there is no rational basis for concluding, that a fair-minded observer might, acting reasonably, apprehend any predisposition against the Labor Party or the unions in a speaker who merely agrees to give a legal speech at an event with the characteristics last described”. |
| 6.07am BST | 6.07am BST |
| 06:07 | 06:07 |
| The union applications had sought to rely on the legal test, in a 2000 case, that “...a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. | The union applications had sought to rely on the legal test, in a 2000 case, that “...a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. |
| The ACTU argued it was a relatively low threshold because of the inclusion of “might” twice. The union representatives focused on Heydon’s agreement to give the Sir Garfield Barwick address - a Liberal party event - and whether it could affect a fair-minded observer’s view on his ability to decide on the commission’s work impartially. | The ACTU argued it was a relatively low threshold because of the inclusion of “might” twice. The union representatives focused on Heydon’s agreement to give the Sir Garfield Barwick address - a Liberal party event - and whether it could affect a fair-minded observer’s view on his ability to decide on the commission’s work impartially. |
| Heydon, in his reasons, says some of the union submissions are “imprecise” and “not altogether easy to understand” but he believed they had advanced two separate strands of argument. He dealt with the two strands separately and called them the “Liberal party event” submission and the “Liberal party fundraiser” submission. | Heydon, in his reasons, says some of the union submissions are “imprecise” and “not altogether easy to understand” but he believed they had advanced two separate strands of argument. He dealt with the two strands separately and called them the “Liberal party event” submission and the “Liberal party fundraiser” submission. |
| According to the first strand of argument, a fair-minded observer might apprehend bias merely because of an agreement to give a legal speech at a function organised by two lawyer branches of the New South Wales Liberal Party... | According to the first strand of argument, a fair-minded observer might apprehend bias merely because of an agreement to give a legal speech at a function organised by two lawyer branches of the New South Wales Liberal Party... |
| The second argument was a narrower one. It was an argument that the fair-minded observer might apprehend that I might not approach the matters for decision impartially because the fair-minded observer might apprehend that my intention in agreeing to give the Sixth Annual Sir Garfield Barwick Address was to raise funds or assist in raising funds or generating support for the Liberal Party. | The second argument was a narrower one. It was an argument that the fair-minded observer might apprehend that I might not approach the matters for decision impartially because the fair-minded observer might apprehend that my intention in agreeing to give the Sixth Annual Sir Garfield Barwick Address was to raise funds or assist in raising funds or generating support for the Liberal Party. |
| 5.54am BST | 5.54am BST |
| 05:54 | 05:54 |
| Heydon also acknowledges that it “might seem strange” to some people that a person complaining about bias should first apply to the person accused of bias. | Heydon also acknowledges that it “might seem strange” to some people that a person complaining about bias should first apply to the person accused of bias. |
| He muses: | He muses: |
| What are the prospects of success in making an application against a Royal Commissioner on that ground, it might be said, when that Commissioner hears the application? | What are the prospects of success in making an application against a Royal Commissioner on that ground, it might be said, when that Commissioner hears the application? |
| Of course if the application to the decision-maker for disqualification fails, the applicant then has the opportunity to seek relief from a court of competent jurisdiction. But why should the applicant have to go through the preliminary step of applying to the decision-maker? Whatever the reasons, it is at least a custom and, leaving aside exceptional circumstances, possibly also a rule of law, that in the first instance the application should be made to the person whom the applicant alleges is biased or is apparently biased. If that is not done, the court to which the application is made may reject it as premature. | Of course if the application to the decision-maker for disqualification fails, the applicant then has the opportunity to seek relief from a court of competent jurisdiction. But why should the applicant have to go through the preliminary step of applying to the decision-maker? Whatever the reasons, it is at least a custom and, leaving aside exceptional circumstances, possibly also a rule of law, that in the first instance the application should be made to the person whom the applicant alleges is biased or is apparently biased. If that is not done, the court to which the application is made may reject it as premature. |
| 5.47am BST | 5.47am BST |
| 05:47 | 05:47 |
| In his reasons, Heydon plays down the political nature of the commission’s work. He says the union applications emphasised the Labor party’s strong historical ties with the union movement. | In his reasons, Heydon plays down the political nature of the commission’s work. He says the union applications emphasised the Labor party’s strong historical ties with the union movement. |
| But Heydon says the government-issued terms of reference “are not expressed to apply to the conduct of either the Liberal Party or the Australian Labor Party” and “seek not to destroy unions or obstruct their purposes, but to see whether they have been fulfilled and to see how they might be better fulfilled in future”. | But Heydon says the government-issued terms of reference “are not expressed to apply to the conduct of either the Liberal Party or the Australian Labor Party” and “seek not to destroy unions or obstruct their purposes, but to see whether they have been fulfilled and to see how they might be better fulfilled in future”. |
| Hence the terms of reference are not themselves hostile to the union movement. | Hence the terms of reference are not themselves hostile to the union movement. |
| 5.42am BST | 5.42am BST |
| 05:42 | 05:42 |
| The Greens MP Adam Bandt has called on the prime minister to shut down the commission. In a release, Bandt says: | The Greens MP Adam Bandt has called on the prime minister to shut down the commission. In a release, Bandt says: |
| Agreeing to attend a Liberal fundraiser doesn’t pass the pub test. The commissioner deciding himself that he’s not biased won’t change that ... | Agreeing to attend a Liberal fundraiser doesn’t pass the pub test. The commissioner deciding himself that he’s not biased won’t change that ... |
| The commission’s work will forever be tarnished and instead of waiting for further legal action, Tony Abbott should step in and bring it to an end. | The commission’s work will forever be tarnished and instead of waiting for further legal action, Tony Abbott should step in and bring it to an end. |
| If a judge agreed to attend a fundraiser for the prosecution, there would be a mistrial. | If a judge agreed to attend a fundraiser for the prosecution, there would be a mistrial. |
| If Tony Abbott insists on continuing his inquiry, parliament should have the final say over any new commissioner and any new terms of reference. | If Tony Abbott insists on continuing his inquiry, parliament should have the final say over any new commissioner and any new terms of reference. |
| 5.39am BST | 5.39am BST |
| 05:39 | 05:39 |
| Unions keep door open to federal court action | Unions keep door open to federal court action |
| The secretary of the ACTU, Dave Oliver, says the inquiry is a waste of taxpayers’ money and Tony Abbott should shut it down. | The secretary of the ACTU, Dave Oliver, says the inquiry is a waste of taxpayers’ money and Tony Abbott should shut it down. |
| Despite the decision today of Dyson Heydon, the reality is that this royal commission is now terminally tarnished. Any recommendation out of this can’t be taken seriously... | Despite the decision today of Dyson Heydon, the reality is that this royal commission is now terminally tarnished. Any recommendation out of this can’t be taken seriously... |
| Q: What’s your next move? Will you go to the federal court? | Q: What’s your next move? Will you go to the federal court? |
| We will consider and read the reasons for judgment. We have only just received it. We will need to talk to our legal counsel and we will engage with our affiliates and make an announcement in due course. | We will consider and read the reasons for judgment. We have only just received it. We will need to talk to our legal counsel and we will engage with our affiliates and make an announcement in due course. |
| Oliver notes there is still a resolution on the Senate books asking the governor general to remove Heydon as commissioner. | Oliver notes there is still a resolution on the Senate books asking the governor general to remove Heydon as commissioner. |
| (This was a Labor-proposed motion that was deferred pending Heydon considering his own future. Several crossbenchers who are not fans of Heydon wanted him to have a chance to hear the matter first. The Senate has the right to send a message to the governor general but the chances of the governor general acting on such a request is close to zero.) | (This was a Labor-proposed motion that was deferred pending Heydon considering his own future. Several crossbenchers who are not fans of Heydon wanted him to have a chance to hear the matter first. The Senate has the right to send a message to the governor general but the chances of the governor general acting on such a request is close to zero.) |
| 5.27am BST | 5.27am BST |
| 05:27 | 05:27 |
| The show must go on. | The show must go on. |
| Here is Heydon summarising the steps from here (assuming the union movement does not now bring a court challenge): | Here is Heydon summarising the steps from here (assuming the union movement does not now bring a court challenge): |
| No court proceedings have been issued challenging any aspect of the conduct of the Commission’s hearings either in 2014 or 2015. Nor have any court proceedings been issued challenging any finding in the Interim Report. | No court proceedings have been issued challenging any aspect of the conduct of the Commission’s hearings either in 2014 or 2015. Nor have any court proceedings been issued challenging any finding in the Interim Report. |
| For the balance of the year Counsel Assisting propose to complete the Commission’s inquiry into CFMEU officials in the ACT, to complete its inquiries into certain financial matters affecting CFMEU officials, to conduct further inquiries into CFMEU officials in Brisbane, and to conduct certain other inquiries into officials in various unions in different parts of Australia. It will then be necessary for written submissions of Counsel Assisting to be supplied to affected persons, for written submissions to be received from affected persons, and for affected persons to exchange any submissions they wish to about each other. Then the Final Report will be completed. | For the balance of the year Counsel Assisting propose to complete the Commission’s inquiry into CFMEU officials in the ACT, to complete its inquiries into certain financial matters affecting CFMEU officials, to conduct further inquiries into CFMEU officials in Brisbane, and to conduct certain other inquiries into officials in various unions in different parts of Australia. It will then be necessary for written submissions of Counsel Assisting to be supplied to affected persons, for written submissions to be received from affected persons, and for affected persons to exchange any submissions they wish to about each other. Then the Final Report will be completed. |
| (The commission has been working to a December 2015 deadline for that report.) | (The commission has been working to a December 2015 deadline for that report.) |
| 5.24am BST | 5.24am BST |
| 05:24 | 05:24 |
| We now have a written copy of the decision. It is 67 pages long. | We now have a written copy of the decision. It is 67 pages long. |
| In a summary on page one, Heydon says the union applications had centred on a contention that an agreement made in April 2014 to deliver the August 2015 Sir Garfield Barwick Address - an event organised by branches of the NSW Liberal party - “might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of questions to be examined in the course of the commission’s inquiries”. | In a summary on page one, Heydon says the union applications had centred on a contention that an agreement made in April 2014 to deliver the August 2015 Sir Garfield Barwick Address - an event organised by branches of the NSW Liberal party - “might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of questions to be examined in the course of the commission’s inquiries”. |
| Here is Heydon’s response: | Here is Heydon’s response: |
| I have concluded that it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the questions which the work of the commission requires to be decided. | I have concluded that it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the questions which the work of the commission requires to be decided. |
| More details shortly. | More details shortly. |