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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Seeking a fair GHG reduction target - Part 1:The problem

As we approach the next critical Climate Change conference in Paris, the focus on countries' Greenhouse Gas reduction targets is intensifying. Countries are starting to position themselves by releasing their 'commitments' well ahead of the conference. No doubt these are the starting positions as the real work will be at the conference and the final positions will be achieved by some sort of compromise. So too interest groups are honing their best arguments to encourage greater commitments or indeed to lower the targets to minimse costs to jobs and the economy as a whole.

CC more challenging than any other in history

Unlike many global problems CC is especially problematic, I believe this stems from just four fundamental reasons; -

1. CC affects every country but the impact is not borne equally by all countries. Smaller Pacific islands face CC catastrophe while land-locked countries in temperate zones will have little direct impact. For example compare the Maldives to Switzerland.
2. The successful achievement of a global reduction target is totally dependent on the largest emitters. If China and US don't play ball, efforts by the rest of the world come to naught.
3. The costs of reducing GHG emissions also varies by country. For developed countries it may represent a few percentage points off their GDP, whereas for developing countries, like India and China, it can mean a large proportion of their population remains in poverty for a longer period.
4. CC is a zero sum game. If the total GHG reduction is sufficient to meet the agreed target (limiting global temperature rise to less than 2C degrees), then if one country commits more towards the mitigation then another country can commit less without affecting the outcome. This effectively rewards laggards.

These factors make the task of addressing CC more challenging than any other global problem in history.

Nevertheless the world has united around the problem and progress is being made. The most significant success has been the establishment of the United Nations Framework Convention on Climate Change and the reasonably effective cooperation between all the key emitters. It is far from perfect, but given the factors noted above, that is not surprising.

Seeking consensus on GHG reduction targets

There has been and continues to be disagreement between nations as to how much they should commit given their relative contribution to the problem and /or their high costs of mitigation. There have been arguments about the rate at which mitigation should occur and there have been calls for compensation to be paid by the developed countries, that have caused the problem (to date), to the developing countries.

A range of 'measures' of GHG emissions have been developed to 'objectify' the arguments. These have been used to rank countries and gauge their success in meeting past commitments.

However given the number of factors which determine any country's GHG  emissions, currently there is no objective way to set reduction targets. Ideally, a formula can be developed that takes into account all the relevant elements such as GHG emission rate, GDP, stage of development, and so on, and uses these to generate a Fair Reduction Target(FRT). To be an FRT, it must be seen to be equitable and therefore acceptable to each country and to the global community.

My objective in this series of posts is to explore how such a FRT formula can be developed.

In my next post I will look at the structure of reduction target statements, the various measures currently used in comparing and ranking countries, and the validly of these measures in determining a country's contribution to CC.


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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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Apropos CC

I just came across the paper   National Contributions to Global Warming  published admittedly a year ago by researchers at Concordia University in Canada. I am not sure why it has hit the news recently. Perhaps with the release of Australia reduction target, commentators have gone back for some material.

Irrespective, I found the paper most informative. In some ways it highlights one of the concerns I have had about the misleading claims by many CC advocates trying to amplify Australia's contribution to global warming, no doubt in order to pressure the government to increase their reduction target.

This paper puts things into perspective and I recommend anyone trying to gain a complete picture to read the paper.

For the present let me just reproduce Figure 3 from the paper.

This picture encapsulates the relative contributions of each country to climate change in the period from 1900 to 2005. In particular note the following;-

• Europe is by far the greatest contributor to global warming over this period and should therefore make the largest cuts in their emissions.
• US and India are in the next group. USA should make significant cuts and India needs the power infrastructure to enable quality of life to improve yet reduce its GHG emissions.
• Australia and Canada are the lowest contributors to CC. Consequently on an equity basis their reduction target should be the lowest. 
• While China had minimal contribution for much of the period, its GHG emissions over the past 20 years have grown and continue to grow at a great rate.
• My calculations indicate that Canada and Australia are net absorbers of Greenhouse Gases. Australia and Canada are helping to mitigate the impact of the large polluters of Europe US and China. (See post Is Australia one of the worst net emitters?)

What is a fair reduction target?

As we approach the Paris CC conference the focus is on reduction targets. How much reduction will each country target over the coming 10-15 years. It is in this context that the 'commentariat' is banding about a variety of CC measures, emphasising those which best support their case. Look at 'per capita' figures, or look at 'today's gross emissions'.

But is there an indisputable 'fair' target for a country? While I guess 'indisputable' is a rather ambitious aim, I suggest the following two principles.

1. A country's reduction target should take into account that country's contribution to CC to date.
2. Over time each country has to totally mitigate their own GHG net emissions.  

These principles eliminate the oft cited disputes between developed countries and developing countries, by providing an equitable weighting on the clean-up load on those who contributed most to the problem.

Moreover they can be used to derive a 'fair' target for any year. But I will leave that calculation for another day.

Perhaps these 'fairness' principles could make agreement at the Paris conference more likely.



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