“Probity may be affected by conscious bias for or against a particular litigant or class of litigants. The law compels judges who have such a bias or may reasonably be thought to have such a bias to disqualify themselves, and in the practice it may be assumed that very few judges are consciously biased.” Dyson Heydon, Quadrant Dinner speech 2004
‘Man overboard! Cabin boy Hunt squeals from the crow’s nest where he’s been sent to practise spotting endangered species. A waterlogged periwig bobs uselessly, oddly, among the sodden crusts, fag ends, and potato peelings of cook’s galley slop in a dirty scum off the stern.
Losing Dyson Heydon is a cruel but not unfamiliar blow. Abbott’s captain’s picks seldom stick. The ship of state, now utterly rudderless, idle, all projects stalled or shelved, drifts helplessly in foul seas listing further to starboard by the minute and leaking like a lobster pot. Now even a show trial seems beyond it.
Abbott’s ship has lost its figurehead and its fig leaf of decency. Justice Dyson Heydon, AC QC, former High Court Judge, is a respected academic and ultra conservative thinker, ‘a paragon of integrity’ to hear the PM speak, drafted because of his reputation. Now he has been dragged into the depths of Abbott’s sordid world. Nothing good can come of it for either party.
Heydon’s predicament makes him star performer in a surreal week in the theatre of the absurd that is Australian federal politics, a week which began with the leaking, to two media outlets, of an empty Cabinet agenda and a PM pep talk on unity, loyalty and not leaking.
The agenda proved cabinet had no agenda and no way of hiding it. Later in the house, with no hint of irony and less of hypocrisy the PM jeered at Labor for being non-substantive under Rudd.
Abbott got the word from a speech of Heywood’s in 2013. It was an indication of partiality best left alone but the PM was all junkyard dog. Had he been into the rozzer’s ‘roid’ supply at police barracks where he chooses to doss down? Certainly, the ex-pugilist came out fighting Monday.
There would be ‘serious consequences,’ for gutless rats,’ ranted the Good Captain Abbott, now barking mad and unlikely to survive past the Canning by-election in September, despite Andrew Hastie, his ex-military candidate’s refusal to be tainted by his unit’s investigation for severing Taliban enemy hands two years ago, which he says is standard finger printing practice, and was judged appropriate at a military inquiry. All but one of his troops was cleared.
Abbott could swap leadership stories with Captain Hastie on how best to deal with subordinates. Only last week he had ambushed the lot of them over gay marriage by suddenly opening a farm gate to let in a mob of Nationals, even if it did include pink redneck Wokka Entsch, with his private member’s bill on gay marriage.
Abbott had deployed a form of ‘branch stacking’ to avoid a conscience vote, said Pyne, clearly angling for the bovine rather than the team player vote. Others in the Coalition have been off side ever since.
It was the night of the long horns; the act of a leader so desperate to save his hide he would appease the right at all costs. A rancorous, mutinous discontent with ‘the prick’ his crew’s term for him, now seethes above and below Team Australia’s decks. And will not be quelled.
Immediately leaked also by a ‘high-ranking cabinet member’ who had remained awake during the PM’s serve were the ironically entitled ‘talking points’ MPs must parrot each week.
Cabinet ministers were sent out with the line that ‘our cabinet is functioning exceptionally well,’ a satirical crack-up too ludicrous even for the Abbott government, a government in deep trouble; such dysfunctional division that catastrophe has become the new normal.
‘A few rough patches,’ Abbott and Hockey say, that’s all, just the ‘tough decisions of governing’ overlooking the reality that all tough decisions on tax, super, energy, environment are being evaded. Hockey’s broken promise to lift GST from tampons does not even come close.
Mike Baird, Abbott’s sock puppet proxy vetoed to its removal at the state premiers’ COAG GST party on Friday while Joe ‘look, no hands ma,’ Hockey, leaned in, beaming approval, squibbing any unpopular heavy lifting himself, such as raising the GST rate, but fooling no-one. Punters have not forgotten his 2014-15 Budget’s massive cuts to state school and hospital funding.
The patches were more than rough. The government was rebuked by the Federal Court for misrepresenting a court decision to fit its paranoid vigilante litigation myth. Four cabinet leaks occurred. Victorian Liberal leader Damien Mantach is said to have embezzled millions, a scandalous charge which assails the Liberal ‘better economic managers’ myth and exposes Liberal leadership selection processes. But it was a better week than last week; funnier, too.
Cabinet crack-up, straight man, comic Eric Abetz, fearlessly attacked ‘gutless’ leakers from safely behind a microphone on ABC radio. It was Eric’s take on courage, unity and loyalty. Perhaps he should turn professional. In his day job Tuesday he failed to get two IR ‘reform’ bills through the senate. So much for the crackdown on unions. In the lower house, the riot actors were in form.
Fearless MPs took turns to jeer and smear Labor, Monday, toning up their abuse after the captain’s motivational speech. The PM led by denouncing the ‘smirking phony’ Shorten for criticising the star of Abbott’s $80 million witch hunt set up expressly to destroy the Labor leader.
Labor was racist, too, for making a fuss about Chinese workers on 457 visas taking Aussie jobs under the Free Trade deals which would now have to be amended to allow Australia to slap a GST on all online vendors.
Despite clearly enjoying themselves trashing Shorten and his party, the Labor-baiting was abruptly trumped mid-week by Brandis, Peter Pan Hunt, Abbott and the other lost boys of the Liberal leadership gang into declaring war on vigilante litigators, ‘elements within the greens,’ Labor racists and any other traitors taking the piss out of progress, jobs and growth.
‘Progress jobs and growth’ means allowing dirty unprofitable multinational coal mines which, in reality, could guarantee none of these things even if they were viable. Renewable energy was ugly and would add five thousand dollars to household electricity bills.
Wind power was backed by the same ‘well-funded’ conspiracy against King Coal, a paranoid Brandis muttered darkly into his brandy, scattering other, saner, Bohemian Club brothers who feared he’d spill their drinks.
It was ‘lawfare’ by vigilantes, Brandis ranted, amidst other bizarre lies about Adani’s coal mine being stopped by ‘extreme greens’ instead of admitting that Hunt had made a mistake.
Ultimately, a desperate Abbott was forced to put on a straight face on Friday and claim the US needed Australia to drop bombs on ISIS in Syria, a group which would immediately abandon its tactic of being embedded with civilians and rush out of hiding into the desert and other wide open spaces to present itself as an Australian air raid target.
Having Aussie top guns kill the evil death cult would do Assad a favour and allow him to continue to barrel bomb his own population without distraction.
In trooping into Syria, Abbott had drummed up a diversion from his government’s ineptitude and chaos; his poor leadership and bad judgement. Yet all of this and more was on more permanent display in Humpty Dumpty Dyson Heydon’s fall from grace and in the conundrums it poses.
Can a judge we perceive to be biased be trusted to judge his own perceived impartiality – as he must – as if he were an average punter? Is a black-letter conservative, an intellectual jurist, a notorious dissenter, up to the task? Will he exercise insight or oversight? Does it matter?
Heydon’s joy in ‘beautifully clear black letter propositions,’ betrays his reverence for an idealised past of certainty and true virtue, a world ill-attuned to the squalid compromises of modernity. It also indicates a mind opposed to those who elevate contemporary values or modern concepts such as human rights above the letter of the law. Yet even Heydon cannot bestow upon Abbott’s Royal Commission the integrity it lacks from its inception. Nor is he the right judge for the job.
A complex and divisive figure, Heydon is a cultured scholar and ‘national treasure,’ a revered Solon to his admirers. To others he appears pompous, pedantic and overbearing, a fossil who has no time for ‘judicial activism’ or changing laws to suit the times. He was never a trial judge. Listening to evidence and weighing it all up as he must in the TURC must be a trial to him.
Heydon is out of his depth in this commission. An academic with no experience of unions let alone the workaday world of building construction, he is more at ease with reading and writing academic dissertation than listening to unionists’ testimony. In almost every way, he is the perfect Abbott Captain’s pick who must now judge himself from the perspective of the fair-minded observer, an everyman legal construct as impossibly far from his real self as could be imagined.
The Witch-Finder Royal has been forced down from Olympus by his own fallibility, his ‘oversight’ of a series of emails over his agreeing to speak at a Liberal Party fund raiser. Now he must plead his own case; argue that he is fit to proceed. Already the evidence suggests he is not.
Star of his own Star Chamber, Justice Heydon is Abbott captain’s pick in his Machiavellian plan to shore up the coalition’s re-electability; trash the unions, damage Labor and kill Bill Shorten. Now he may have discovered the hard way the truth of Sir Owen Dixon’s dictum that High Court Judges decline the offer of any Royal Commission.
To accept is to become a creature of the government with no constitutional protections for independence. It is also to blot the escutcheon of the High Court. Certainly this commission is bound to end badly for all parties.
Heydon will respond to a submission lodged on behalf of the ACTU, Unions NSW and four unions that he should recuse himself and resign his commission “on the grounds that he is unable to afford any union or any person associated with any union procedural fairness as a result of his apprehended bias”.
Forced to sit in judgement on himself, an awkward, uncomfortable, if unique, privilege at the best of times, Heydon has already taken a massive step down. He will, he advises, take some time to consider his case and will hand down his verdict next Tuesday.
Whatever Heydon’s finding, the Royal Commission is irrevocably tainted. Should he choose to remain, moreover, the ACTU and the Unions could take its case to the Federal or the High Court.
Heydon’s credibility and that of his commission is now as bad as his memory. Sadly for a party, that has a crush on bigwigs, another Liberal idol is seen to have feet of clay.
To most ‘fair-minded observers,’ Heydon’s case surely beggars belief. A top silk, whose reputation includes his capacity to summon even the smallest detail and who clearly expects the same powers of recall from those who appear before him, a judge who is perfectly capable of applying seventeenth century precedent to acquit a husband of the rape of his wife – can ‘overlook’ things? Or not realise things?
Heydon is resisting calls for his resignation on the grounds he was not aware the Garfield Barwick address, was a Liberal fundraiser – despite the emails and despite Barwick being a Liberal legend for his 1975 role in advising Kerr in Whitlam’s dismissal.
Is he foxing? Surely Heydon must recuse himself. The damage is done. Yet the former Howard appointee to the High Court is acting like a politician, denying, pleading ignorance, making excuses, ‘ so many speaking invitations,’ denying, demurring and prevaricating.
The top silk is dancing in step almost with Bronwyn, the dance of the umpteen veils of departure until the booing is loud enough for the PM to haul him off. Yet you can understand his reluctance.
The performance was going so well. Abbott’s show trial into Gillard and Shorten and the criminals, thugs and bikie gangs that run the union movement was providing more than just dark comedy, light relief and welcome theatricality; it offered rich pickings for press and pollie alike, providing a flailing coalition with enough mud to sling at Bill to fill a coal mine.
Heydon himself had got into the swing of his extended season, following up his mind-reading of Julia Gillard whose ‘demeanour’ he judged to contain ‘an element of acting’ by striking another blow at impartiality with his gibe at Shorten who was in danger, he said, of ‘becoming an unreliable witness.’ Bugger protocol. Heydon sets his own rules.
Senator Conroy reminded the senate, Heydon’s Royal Commission departs from precedent. It accepts hearsay but refuses objections and cross-examinations. Double standards for different witnesses appear depending which side of the pay desk they are on.
Detailed media briefings are provided to reporters minutes ahead of witnesses who may read the charges against them for the first time when they enter the box.
The PM tried hard and loud to defend his pocket colossus in parliament. Heydon, AC QC, Abbott repeatedly hectored MPs, the QC AC sounding faintly like some band, is a Justinian of Australian jurisprudence, Sydney Solon, a certainty to pick up a knighthood for services rendered.
Not only is this paragon ‘absolutely beyond reproach’ it is a criminal act to attack a serving Royal Commissioner, the PM bellowed getting up a riff: Labor must stop running a protection racket on a protection racket, stop smearing a former High Court judge.’
Abbott doth protest too much. Hoist with his own petard, his explosive Royal Commission device has spectacularly backfired disabling his mate Dyso and himself leaving Shorten smirking.
His crew in mutiny if not open revolt, his vow to beat Shorten looking increasingly like all his other broken promises, his government ‘chaotic as a Tupperware cupboard’ and utterly without an agenda, Captain Abbott appears to be up shit creek without a paddle.
All the military adventures and other diversions he can wangle, all the QCs he can commission cannot put him back together again. Not as leader, anyway. A leader would have given Heydon the heave-ho long ago. Or not appointed him in the first place.