Aye, there's the rub.

Over the past 18 months the Trade Union Royal Commission (TURC)  played out on our media like a slow motion Shakespearean tragedy. With all the accouterments of these plays; human vices writ loud and large; greed, duplicity, double dealing, leading to falls from grace and of course piles of bodies. We have yet to see the final body count as we are but midway through the play, but they are already piling up.

In recent days the drama has again come front and center as, rumors have it that, the Turnbull government in order to woo cross-bench support for mooted new legislation, is considering giving these accidental powerhouses of decision making access to the confidential volume(s) of Commissioner Dyson's final report.

Now Labor wants to get into the act and has asked for similar access. Ay there's the rub.

What type of information would be confidential?

No doubt Dyson Heydon (DH) had good reasons to make one volume of his 6 volume final report confidential. What would be good reasons? Admittedly I am only speculating, but I can see at least three, and there may be many more.

1. It names sources.
It could contain the names of sources who have provided information to the TURC. Some of this may have been only been made in exchange for a guarantee of anonymity.  The sources may have been exposed to corrupt Unions in their dealings and may remain in positions that would leave them vulnerable if they were identified.

Sources may be ; -

• serving members of a Union in senior roles who could lose their position or even worse. Unions have been known to resort to plain old thuggery.
• employer's who fear retribution from their Unions through industrial action or worse.
• past or even currently serving MPs, who could face retribution in various forms including loss of pre-selection. 
• current or past legal representatives of Unions who are passing on client confidential information. The consequences again can be serious.
• ex Union officials who are appointees to government and semi government authorities. eg Fair Work Australia just to consider an example. I seem to recall a certain Fair Work judge who did give evidence to the TURC. Who knows what else could be under the covers.

In short, sources could come from any sphere that has insider knowledge of Union corruption. Many if not most of these sources have very good reasons to protect their anonymity. Exposure of their names would put them at grave risk of various forms of retribution.

2. Evidence in progress
There may be evidence of Union corrupt dealings not yet in the public domain that DH would like to share with law enforcement authorities, to allow them to act on the evidence before its general release. Such evidence may be vital to ensure success in persecuting offenders but its uncontrolled release by alerting offenders as to its existence may make prosecution more difficult.

3. Cases not covered
No doubt as DH sifted through the vast volumes of material over the 18 month duration of the enquiry he had to select which cases to cover. In this selection he would have come across many instances of potential corruption that needed further exploration. The confidential volume may contain details of potential corruption that required further investigation. Exposure of these could allow the perpetrators to 'cover up' and make prosecution impossible.

Would you trust the keys to your house to a potential burglar?

Now we can return to the question whether to give or not to give the confidential volume to the ALP?

The ALP is wedded to the Union movement. More than Half federal Labor MPs have union origins, and affiliated unions take a leading role in setting ALP policies at the national conference. Quite simply it is sometimes hard to tell the difference between an ALP MP and a Union official. They seem to talk as two faces with one creature.  None typifies this close relationship between ALP and the Unions more than the brothers O'Connor. Brother Brendan is the ALP's Opposition Employment spokesman. Brother Michael is the National Secretary of the CFMEU, which happens to be the Union with the dubious honour of having the largest number of corruption charges identified by the TURC.

Given this close relationship should the government release the confidential report to the ALP? In all good conscience could the ALP be trusted not to leak, accidentally or otherwise, any of the potentially damaging information to its brother the Union movement?

Would the proverbial 'fair minded lay observer' think it reasonable to give the confidential volume on Union corruption to the Labor party? I think not.

ALP must jettison Union ties

I guess this is the pointy end of the problem for the ALP. Its close relationship with the Union movement has made it difficult for it to be seen as an independent judge of Union corruption.

The ALP's dealing with the TURC has been totally irrational. Rather than enthusiastically siding with the workers as opposed to corrupt Union officials, and supporting the TURC, it has done the opposite. It has simply echoed the Unions' repeated calls to stop the TURC  or to discredit the commissioner. Its apparent hysteria and repeated denial of corruption despite overwhelming well documented evidence, seems to be counterproductive. It seems to be 'running a protection racket' for corrupt Union officials against their members.  This strategy is not serving the ALP nor the country. Australia needs two strong, independent, political parties. When Unionism represents under 15% of the workforce how can the ALP justify 50% of its MPs having Union backgrounds.

Isn't it time for the ALP to jettison those close Union ties and really become the party of the workers.

Long and Winding Road

2015 is nearing its end. Another 12 months ticked off the bucket list.Time flies.

I have returned to Sydney surprisingly refreshed after a short holiday. A family wedding at Byron Bay drew us up the coast ( some 800 kms from Sydney) which we extended into a road trip.  I chose to drive. I always feel at home behind the wheel; free to wander whither the wind would will. Alas, we rarely go without plans.

For many years when the children were young we made the annual pilgrimage to Port MacQuarie, to a well trodden kid-friendly resort. Together with friends and their families we formed a large chaotic group.

Returning after all these years it has all changed. The roads are much better. Though bustling as ever with pre-Christmas activity the townships are much developed. Most surprising was the countryside. Around this time of year we were always confronted by the harsh reality of the Australian bush, Even on the coast the vegetation would be various shades of brown. Not this time. This time it was a pervasive lush green.

Gently rolling hills, lush green vegetation, all too beautiful. It seems a direct contradiction of the many dire predictions of global warming. Our dams are full, rain is plentiful. Mmmm. Still one swallow does not a spring make. Adverse effects could be elsewhere. We just happened to be driving on a much improved region of the world. Even if so, it raises the notion that Global Warming is not universally bad and that global warming will improve the environment in some parts of the world. A warmer world will be more humid. The greater humidity and more carbon dioxide will increase fertility of the land and therefore food production. These will no doubt be offset by negatives, but what is the nett impact? I have not seen any evaluation of the benefits vs the costs of Climate change. Indeed very few benefits are ever mentioned. (If you have please send them to me.)

Leaving the city, our daily lives, made hectic by work and family chores, and the ever present and screaming media, is surprisingly therapeutic. Of necessity one switches off. Yes, the mass media is always available, but we don't pay as much attention. We look at the scenery. The social media? Yes, I did turn on and submit a few tweets, but alas it was more sporadic. After a few days, it is somewhat irrelevant.

One cannot but consider the pervasive impact our media has on our daily lives. It sets the agenda for what we consider important, what we discuss, it even offers our opinions.. It sets the tone and the mood. We rile at the inhumanity, we cry at the tragedy, we fear the threats. It often dictates our actions; donate, march, join in, protest. The media is an all too powerful beast which corrupts our individual selves. Yet all it takes to break its spell is to switch off. Even if it is for a just short while.

This time of year the media beast is also switching off. The industry itself, like most in Australia, enters the Christmas lull. In Australia, it lasts much longer than elsewhere with a slow-down lasting to the end of January. Of course many are back to work by then but somehow the atmosphere remains in 'holiday' mode. I guess everyone welcomes the slowdown and does their best to maintain a festive mood. It is quite therapeutic.

Reflecting on the year just passed it is easy to get stuck in the minutiae on which the country spent much time. Of knighthoods, of winks, of helicopter rides at great expense, of corrupt advice to relatives. Many of these hold the audience hostage for but a few days or weeks, then lapse into the background.

However the main theme that has without doubt held centre stage throughout the year has been war and terrorism. In many ways these are two sides of the same coin. Both products of a people stuck in a time warp, largely of their own making. Stuck in a whirlpool of hate which is spawning bodies and terror on the world stage. From a helicopter view it is a global conflict of enlightenment vs barbarism. But lets not beat around the bush. It is Islamic barbarism. The battle is both within and with-out Islam. The fundamentalist Wahhabi Islamic ideology that is at the root of our worldwide conflict has too many adherents. For enlightenment to win, both the active extremist fighters must be defeated in war and their ideologues and preachers must be defeated through debate. The ideology must be seen as unacceptable to all Muslims. We need a cacophony of Islamic voices to scream to the world that the extremists are hijacking their religion. This has not happened, yet, but needs to. I like to think enlightenment will win , as it has for many other challenges that the world has faced, but we will see.

While terrorism and war have had their sway on our daily lives, so too has politics. Changes in governments in England and Canada, a raised profile of an aggressive Russia, and a weak America have all had their impact. As too has the change from Abbott to Turnbull. I did not like the way the change was made, but Turnbull has been doing well.

In the final days of the year things are looking up. IS has had a major defeat with the recapture of Ramadi by the Iraqi forces. Dyson Heydon released his Royal Commission's damning findings on the corruption that is widespread in Australian Unions and by their connection into the Labour party. This will have real consequences as many Union, and some company, officials face charges in the new year. And finally, perhaps much later than he should have, Mal Brough has (been) stepped aside. What will the new year bring?

Thank you readers for the positive feedback and indeed all the feedback over the year. I hope I have kindled some debate out there.

I wish you a healthy and peaceful 2016.

Where are the voices against corruption?

With but a few hours to go before we find out Dyson Heydon's verdict on himself, what more can be said?  Everyone has been at it over the past few weeks.

In all the outrage about possible 'perception of apprehended bias' by the Royal Commissioner much of the commentariat has lost focus. As a result I feel a need to re-iterate what I believe are the core issues and why a change in commissioner at this time would not be in our common interest.

• The TURC was set up to find Union corruption and it has succeeded. Several Union officials have already been charged and some 60 specific complaints against unionists are now under investigation with many likely to lead to charges. The TURC under DH has uncovered extensive criminality in many of our largest Unions.
• The corrupt practices of their officials has had substantial impact on Union members. In cases where member funds have been misappropriated (HSU, CFMEU), members have no doubt borne the costs through membership fees. But even worse, in those cases where through 'sweetheart deals' Union(AWU) leaders negotiated away their members' benefits, members lost income. It is clearly not in members' interests to have corrupt Union officials. 
• It has been argued by some, that the TURC was not necessary since 'criminal acts' by Union officials would have been picked up by existing law enforcement agencies. However the fact is that there has been no action by existing law enforcement bodies despite these offences stretching back over decades.
• The Union movement has been trying to sabotage the TURC even before it started,  initially calling it a witch-hunt then more recently attacking the Royal Commissioner. Doesn't the Union movement and the ACTU want to eliminate corruption in its ranks? Where are the voices of the honest Union leaders who don't want corruption in their organisations? 
• Similarly, ALP elected representatives in both state and federal governments, who always claim they are on the side of the workers, have joined if not preceded Unions' calls of 'witch-hunt' and bias. Aren't ALP MPs on the workers' side? I know of only one ALP ex parliamentarian, who has spoken out in favour of the TURC, and Martin Ferguson should be applauded for it. Nevertheless it begs the question why haven't we heard any current ALP MPs admonishing corrupt Union leaders and supporting the work of the TURC? 
• Had the ALP taken an anti-corruption stance they would have earned the respect of the electorate and indeed the Unions' members. By not supporting the TURC, by calling for its commissioner to recuse himself, by calling for the TURC to be disbanded the ALP are siding with corrupt officials, against Unions' members and against the best interest of all Australians.
• So too our media. While they see themselves as the objective last stand in the defence of truth, our collective media seem to have fallen far short of this ideal. Except for a handful of 'Right' leaning commentators the media have failed to stand in support of Union members and against Union corruption.
• An attack on the 'umpire' during a game is unforgivable in any sport. Legitimate questions of bias can be, and often are, raised after the game is over when judgement is made in a objective manner. The attacks on DH should have been raised after the commission had completed its work. There would have been no downside in this, as DH's rulings are only the first step in the process and will always be tested in either parliament or in a court of law (see post 4 reasons why DH should stay).

No matter which way the decision by DH the tactic of attacking a serving Royal Commssioner while the commission is active will have consequences, including; -

• As a direct result of the perceived success of the 'mass-media-outrage' tactic the commentariat, comprising mass media, social media, politicians and vested interests (Unions in this case), are more polarised than ever and more willing not to look objectively at any issue if it goes against their leanings. 
• No Royal Commission into any matter which has a political implication will be able to do its work without loud open claims of bias. This tactic has been shown to work and therefore will be used again. This will be true even if DH stays. The laws related to criticism of Royal Commissioners has to be enforced to prevent this happening in future.
• If DH leaves and a new RC is appointed, expect to hear the claims of bias again and again.

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On fair-minded lay observers..

'Fair minded lay observers' seem to have popped into our milieu of late. What the heck are they?

Can we find one?

Is a parking cop fair minded when he books me while I am standing next to the yellow Maserati which has been parked for just 1 hour in a no-parking zone?  Or is he simply picking on me because of my pink hair and tattoos, or indeed my Maserati?

Ok perhaps an extreme example. Try this.

What would a fair-minded lay observer say about a Human Rights Commission president who postponed a review of 'children in detention' when the numbers were rising rapidly under a Labour Government, till after a change of government when the numbers were falling rapidly?

No? No that one? Ok lets try again.

What would a fair minded lay observer think of a Union lawyer arguing a Royal Commissioner recuse himself because "he is guilty of apprehended bias" after his Union has been exposed as corrupt with many of its members already facing criminal charges?

I guess you can see where I am going with this, but bear with me.

The argument over 'apprehended bias' by Dyson Heydon in his role as TURC commissioner has taken centre stage.

The term was new to me till recently. So I have had to do some quick Googling.  There are of course many references, all rather legalese.  Apprehended Bias is the criterion used to determine whether a judge has sufficient impartiality to rule on a matter.

The NSW judicial commission provides this definition; -

"The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Judicial Commission of New South Wales

And to further clarify; - 

" the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude." ( Source Reasonable apprehension of Bias )

With the TURC, the decision is up to Dyson Heydon (DH) and we will know his decision in due course.

I have already recorded my position vis-a-vis the justice of this attack but would like to add some points specifically addressing the Apprehended Bias attack. (4 reasons why Dyson Heydon should stay)

• The claims of Apprehended Bias are disingenuous
• The claimants have evident bias themselves
• Some of the claimants arguments do not support Apprehended bias

The claims of Apprehended Bias are disingenuous. 

The Unions raising the claim do so not because they believe DH will be not be impartial. They use it as a convenient argument in order to ;

• weaken the TURC by eliminating an effective commissioner
• deflect attention from the corruption already exposed and prevent more being exposed
• taint the work of the TURC and thereby mitigate the findings of the commission against them
• minimise the political damage to both the Union movement and the ALP by their association with corrupt practices
• generally obfuscate, throw enough mud so some will stick.

The claimants have evident bias themselves

The ACTU, the AWU and the CFMEU through their solicitors each made claims of apprehended bias against DH. How seriously should we gauge their claims of AB. Do they meet the criteria of being fair-minded lay observers?

Certainly not! The CFMEU has been implicated in wide-spread corrupt practices with many of its members likely to face criminal charges. So too the AWU with two ex Union organisers to face criminal charges, and exposure of suspect Union deals which disadvantage workers. The ACTU represents all the unions and therefore has an overarching self interest to minimise the political damage caused by the exposure of corrupt practices.

So none of the claimants are fair minded lay observers. They are clearly biased in their claims, so we should treat them with suspicion.

Some of the claimants arguments do not support Apprehended bias

I guess this last of my points is the most important. While we will generally accept that the Unions have a vested interest in discrediting the TURC and will use any argument that serves that purpose, are they arguing something they don't believe? That is a lot harder to prove. 

Indeed it is and I don't claim to have foolproof evidence but at least sufficient 'smoke' to suggest there is a 'fire'. 

Reproduced below is the reported testimony of Mr Newlinds the barrister for the ACTU at the TURC arguing the case for Apprehended Bias; - 

11.03am: Now, Mr Newlinds focuses on Justice Heydon’s reputation: “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.”

He goes on to make the interesting point that, while the “hypothetical bystander” may not know about Heydon’s “razor sharp mind” or “mind like a steel trap”, they would bear in mind Mr Heydon’s resume.

He says: “We know that you’re a man with a reputation for having a razor sharp mind, to use another cliche, a mind like a steel trap. I think my learned friend is correct in saying that the hypothetical bystander that this matter must be judged by, he or she doesn’t know that ... They do know that you were appointed to the High Court, that you were appointed to the COA of NSW, then to the HC of A and served for the best part of a decade, I think, and that the executive branch of government has seen you as a person appropriate to carry out this very important, difficult and fact intensive inquiry. (source The Australian )

Paraphrasing , Mr Newlinds argues that those in the legal fraternity respect DH 's ability to weigh arguments and come to impartial rulings, but that the lay observer does not know this and therefore may see him as being biased.

In other words, Mr Newlinds argues solicitors like himself accept that DH is impartial, but despite this DH is guilty of Apprehended bias as a lay observer would not have this insiders' knowledge.

However returning to the clarification of how to apply the 'apprehended bias' criterion; -

" the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information." ( Source Reasonable apprehension of Bias )

So the lay observer must also acquaint themselves with those in the industry and therefore would come to the same conclusion as Mr Newlinds has, that DH will indeed be impartial.

Mr Newlinds has, perhaps inadvertently, presented a cogent argument for dismissing the Apprehended Bias claim against DH.


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4 reasons why Dyson Heydon should stay as TURC commissioner

Fresh from the successful scalp of Bronwyn Bishop the Media/ALP pack are at it again. This time the target is Dyson Heydon, the ex High court judge now leading the Trade Union Royal Commission(TURC). Universally acclaimed as a man of integrity he is now being hounded out of office. The next few days will prove whether this mass attack is successful.

But irrespective of the outcome, is this attack reasonable? Would his removal be just and in the best interests of our country or would it reward and thereby encourage and legitimize such unseemly political tactics as the new normal in Australia's political discourse.

Much has been said and written on this so I am sure everyone is familiar with the core facts. I will restrict my comments to make just four points.

1. There is no 'Perception of bias'
2. A political leaning does not disqualify DH from fulfilling his role
3. There is no down-side in keeping DH in his role 
4. There is a serious downside in removing him from his role

There is no 'perception of bias'

There is no evidence that DH has exhibited any bias at all. In fact no one is arguing that he has or even that he is likely to. All argument is that there is a 'perception of bias'.
ALP and many in the media argue that 'perception of bias' is a sufficient criterion for his removal.
However the loudest calls come from those who do not apply this rule universally. The case of Gillian Triggs comes immediately to mind. In that case the argument was not even about a perception of bias but what was argued to have been demonstrated bias. Those who argued that Triggs should remain in her job but today argue that Heydon be removed are doing so for reasons other than potential 'perception of bias'.

ALP MPs are simply arguing out of self interest trying to stop the TURC as they see it as politically damaging given their close Union allegiance. Their colours were shown even before Dyson Heydon was appointed to his role, labeling the TURC as political witch-hunt, and they have not let up ever since. Their calls are certainly tainted.
As for the journos, they should explain their different stance themselves. It certainly looks like they are simply exposing their own political leanings.

Calls from those who are themselves biased must be dismissed.

A political leaning does not disqualify DH from fulfilling his role

A vast majority of thinking Australians have a political leaning. They vote in elections for one of the parties and they carry their leanings into their work and their private lives. So too do lawyers, police, teachers, judges and even royal commissioners. Why would we expect any judge not to have a political leaning?. 

Every day Judges, especially High Court judges are expected to rule on matters which may have some political impact. Yet we trust our judges, especially our High Court judges to make their rulings impartially, dependent only on the evidence presented and in accord with the laws of the land.

So why should anyone expect DH not to have a political leaning? Such leanings cannot rule him out as royal commissioner. Indeed if it did then no person could serve as a royal commissioner as no one is free of such leanings.

 Moreover, past High Court judges and Royal Commissioners have remained in their roles even after they presented speeches at party events. This is not even the case with DH, as he withdrew from the event.

There is no downside in keeping DH in place

There is no downside in keeping DH in his role because the TURC is the first step in a process which will have thorough parliamentary and legal scrutiny.

The TURC is gathering evidence on Union Corruption. The evidence will form the basis of a report, which will result in many Union officials facing criminal charges. Some have already been charged and some thirty have been named, who are likely to face charges. The evidence against individuals will be revisited in a court of law, where it will be weighed and considered. 

The final report of the TURC will no doubt make a series of recommendations regarding the introduction of new laws around Union governance.  The recommendations will also be weighed and considered by the government and will be debated by parliament.

So DH can continue to fulfill his role as TURC commissioner, irrespective of perceived or even actual leanings, without invalidating any of its findings.

There is a serious downside in removing him from is role

At the same time there is considerable and serious downside if DH does not continue to lead the TURC. 

You don't have to go past the hysterical calls for his resignation from the ALP to gauge the success of the commission to date. The TURC has brought to light corruption at the highest levels of many Unions (AWU, CFMEU, HSU etc.) and has named some thirty individuals who will in all likelihood face charges. No doubt much more is to come. 

It has been acknowledged by most commentators that DH has done an exemplary job to date.  While it has been argued that a new commissioner could be appointed, inevitably there would be a loss of momentum and who knows if the new commissioner would have the same level of success that DH has already demonstrated.

A further downside of removing DH from his role, would be to reward the 'shock and awe tactics' of the Media/ALP alliance. This contemptible political tactic is a new unwelcome entry into our social order. It works by confecting outrage over some issue, in this case the cancellation of a planned talk, and amplifying it through a compliant media into a political storm. Rewarding such tactics only encourages their use and debases our political and social discourse, and therefore should be strongly resisted. 

Finally, the removal of a high respected ex High Court judge without a 'just' cause would tarnish the exemplary record of a respected Australian. This is simply unethical.



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