By whatever test you want to nominate, the pub test or the sniff test, a royal commissioner finding himself free of apprehended bias fails.
Dyson Heydon’s reasons for rejecting applications from the unions that a fair-minded lay observer would not find him impartial may have legal merit. Attorney-General George Brandis believes they are a “tour de force”. A court may not agree.
The fact is every decision is contestable and it is open to the unions to appeal this self-serving finding.
Indeed, though an eminent jurist, Dyson Heydon is used to coming to conclusions that put him in a lonely minority among his peers. His record on the High Court is a compelling exhibit.
Former New South Wales Supreme Court Judge Anthony Whealy QC told ABC News 24 that whatever the legal merits, in the broader court of public opinion the royal commission is now politically and irredeemably tainted.
In Heydon’s place, Whealy says he would have recused himself. Itself a quaint way of giving oneself the boot off a very lucrative bench.
Where to from here for this inquirer?
Should Heydon find any witness lacks credibility because he or she overlooked key facts there’s a quick retort: “Yes m’lud, you know how it is!”
Already in the commission he has shown little tolerance for witnesses who he thinks are putting the most benign construction on their vagueness or memory lapses.
Then he expects the fair-minded lay observer to believe that speaking at a fundraiser is not helping the Liberal Party raise funds.
After all, he was not going to give a political speech. So why did he call it off once his appearance became public? He didn’t say.
There is no doubt the political cache of this exercise is now not what the Prime Minister really wanted. What he wanted was to smear his main political opponents with the stench of corruption and dodgy deals.
Evidence for that came in the story handed out to the News Corp tabloids on the day the Heydon self-verdict was delivered. It claimed Labor’s Bill Shorten had received an undisclosed $5000 campaign donation from The National Union of Workers.
Never mind that the Liberals in government raised the legal disclosure requirement to $13,000. And forget the fact that Labor did disclose it anyway. The finger was also pointed at the union for having had a “secret slush fund” to support political candidates.
In a democracy, donating to political parties to advance issues you believe in is not a crime.
The Liberals resent trade unions using members’ funds to bankroll Labor election campaigns. The NSW Coalition government unsuccessfully tried to ban it. The High Court struck it down.
Several major corporations of which I am a shareholder are very big political donors. Never once have I been asked to approve their boards’ decision to give any political party a donation, let alone one party more money over another.
The Prime Minister says the commission is to help clean up the unions and the Labor party. On that logic he should set up a royal commission into his own Liberal Party.
What is the culture or lack of transparency that allows a senior executive to defraud it of funds not in one but two states?
Paul Bongiorno AM is a veteran of the Canberra Press Gallery, with 40 years’ experience covering Australian politics. He is Contributing Editor for Network Ten, appears on Radio National Breakfast and writes a weekly column on national affairs for The New Daily. He tweets at @PaulBongiorno