tag:theconversation.com,2011:/id/topics/trade-union-royal-commission-17853/articlesTrade union royal commission – The Conversation2017-03-23T01:56:36Ztag:theconversation.com,2011:article/750522017-03-23T01:56:36Z2017-03-23T01:56:36ZPolitics podcast: Michaelia Cash on union misconduct<p>The government this week introduced a bill that aims to put a stop to secret agreements between employers and unions without the knowledge of union members. The next hurdle will be the Senate, although it’s possible Labor may support the legislation. </p>
<p>Employment Minister Michaelia Cash says she is always in discussion with the Senate crossbenchers about the implementation of the recommendations from the Heydon royal commission.</p>
<p>“And certainly, I’m always willing to sit down with [Shadow Employment Minister] Brendan O'Connor or Richard Di Natale to discuss the legislation.”</p>
<p>Beyond these new measures, Cash suggests the government wants to legislate more recommendations from the royal commission into trade unions. </p>
<p>“There are about 50 to 55 left and we are finalising that package as we speak. We are absolutely committed to adopting the Heydon recommendations.</p>
<p>"There are further recommendations in relation to what employers and unions should be disclosing in the course of enterprise agreements. There are some recommendations which go to, for example, choice of superannuation fund in enterprise agreements. There are some recommendations which go towards further transparency. Again, we’re happy to adopt them all.”</p>
<p>Following a ruling by the Fair Work Commission to cut Sunday penalty rates in industries such as hospitality, retail and fast food, some businesses have been reluctant to show strong support for the changes. Cash would like to see more businesses take up the cause.</p>
<p>“I believe that if you accept a decision and you embrace the positive benefits and you want to bring people with you, then yes, you should be out there selling that message.</p>
<p>"These guys are scared. They are scared that the unions will come and get them.”</p><img src="https://counter.theconversation.com/content/75052/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government this week introduced a bill that aims to put a stop to secret agreements between employers and unions without the knowledge of union members.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/566762016-04-15T03:28:59Z2016-04-15T03:28:59ZExplainer: what are the ABCC and Registered Organisations bills?<figure><img src="https://images.theconversation.com/files/117799/original/image-20160407-10004-zckc24.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The government argues its industrial relations bills are necessary to deal with widespread corruption uncovered by the trade union royal commission.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Federal parliament will convene for three weeks from Monday for a special sitting to consider the Australian Building and Construction Commission (ABCC) and the Registered Organisations bills. Crossbench senators are <a href="https://theconversation.com/turnbull-ultimatum-july-2-double-dissolution-unless-reconvened-senate-passes-industrial-relations-bills-56586">facing the threat</a> of a double-dissolution election if the bills do not pass.</p>
<p>The government’s case for the bills is essentially that they are necessary to deal with widespread corruption uncovered by the <a href="https://www.tradeunionroyalcommission.gov.au/Pages/default.aspx">trade union royal commission</a>. Prime Minister Malcolm Turnbull <a href="http://www.abc.net.au/news/2016-03-21/malcolm-turnbull-brings-budget-forward-threatens-election/7262898">argues</a> the ABCC’s restoration is a “critical economic reform” and will reduce the high levels of industrial disputes on building sites. </p>
<p>But what is actually provided for in the two bills? And to what extent would they actually deal with union corruption or criminality if passed?</p>
<h2>What is the ABCC bill?</h2>
<p>The <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/Building_and_Construction">ABCC bill’s</a> main purpose is to re-introduce the Howard-era regulator for the construction industry.</p>
<p>In 2012, the Labor government replaced the ABCC with <a href="https://www.fwbc.gov.au/">Fair Work Building and Construction</a> (FWBC). It has reduced powers and lower penalties for breaches of prohibitions on unlawful industrial action and coercion.</p>
<p>The current arrangements have, <a href="http://www.constructors.com.au/wp-content/uploads/2015/08/ACA-Media-Release-ABCC-and-Related-Legislation-11-August-2015.pdf">according to some</a>, allowed damaging and unproductive practices to re-emerge in the sector.</p>
<p>The powerful Construction, Forestry, Mining and Energy Union <a href="http://www.standupspeakoutcomehome.org.au/abcc-will-try-silence-workers">continues to oppose</a> the ABCC’s ability to subject construction workers to compulsory interrogations under threat of imprisonment (among other features of the bill).</p>
<p>In addition to restoring the ABCC, the bill would:</p>
<ul>
<li><p>expand the definition of “building work” subject to ABCC oversight to cover the transportation or supply of goods to building sites and offshore resources platforms;</p></li>
<li><p>create new prohibitions on the organising or taking of unlawful industrial action, or unlawful picketing. This is a response to <a href="http://www.theage.com.au/victoria/cfmeu-signs-35m-grocon-payout-20150619-ghsbgi.html">disruptive pickets</a> by building unions such as that which took place on the Grocon Myer Emporium site in 2012;</p></li>
<li><p>increase penalties for unlawful industrial action from A$10,800 to A$34,000 for individuals, and from $54,000 to $170,000 for corporate entities – including unions – with the same penalties applying to unlawful picketing;</p></li>
<li><p>remove the current limitation preventing the regulator from initiating or continuing enforcement action where the parties involved have settled a dispute; and</p></li>
<li><p>give legal effect to the government’s <a href="http://www.corrs.com.au/publications/corrs-in-brief/abbott-government-releases-new-construction-code/">procurement framework</a> that enables further Commonwealth control over the industrial practices of companies tendering for federally funded projects.</p></li>
</ul>
<h2>What is the Registered Organisations bill?</h2>
<p>The <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5422">Registered Organisations bill</a> seeks to implement the Coalition’s <a href="http://www.liberal.org.au/better-transparency-and-accountability-registered-organisations">2013 election policy</a> to impose higher standards of regulation on union officials – mainly in response to the <a href="http://www.heraldsun.com.au/news/victoria/inside-the-corrupt-culture-of-the-health-services-union/news-story/3e6ef215ecdbd1daeb142795f0472ec6">Health Services Union corruption scandal</a>.</p>
<p>Under this legislation, a new specialist regulator, the Registered Organisations Commission, would take over responsibility from the Fair Work Commission for oversight of registered unions and employer associations.</p>
<p>In addition, the bill would, in many respects, align the regulation of registered organisations with that applying to corporations. This includes:</p>
<ul>
<li><p>increasing the obligations of office-holders in registered organisations with respect to the disclosure of material personal interests, and decision-making where officers may have such interests;</p></li>
<li><p>strengthening the financial, disclosure and transparency requirements applicable to officers in financial management matters; and</p></li>
<li><p>increasing civil penalties and imposing criminal liability for serious breaches by officers of their statutory duties.</p></li>
</ul>
<p>The Senate has already rejected this bill twice.</p>
<p>The government is expected to introduce a new version of the bill to include some of the royal commission’s broader recommendations. This may include new criminal offences relating to the payment of corrupting benefits/secret commissions, and increased regulation of union-run “slush funds” (as the royal commission described them).</p>
<h2>Will they combat corruption?</h2>
<p>In his <a href="https://www.gg.gov.au/sites/default/files/files/gg/2016/Documents%20relating%20to%20proroguation%20of%20the%20Parliament%2021%20March%202016.pdf">letter to the governor-general</a> requesting parliament’s recall, Turnbull described the bills as necessary:</p>
<blockquote>
<p>… to deal with widespread and systematic criminality in the building and construction industry.</p>
</blockquote>
<p>However, the ABCC bill mostly imposes only civil penalties for workplace law breaches in the construction sector – with the exception of the criminal penalties for not participating in a compulsory witness examination. It does not include <a href="http://www.afr.com/news/politics/7-out-of-8-crossbenchers-ready-to-talk-on-abcc-bill-20160329-gnsu5m">any measures</a> to tackle union corruption.</p>
<p>The Registered Organisations bill deals with union corruption but in a broad sense, rather than anything specifically focused on the construction industry.</p>
<p>Much of the current debate also overlooks the existing building industry regulator – the FWBC – and that it has some of the former ABCC’s coercive powers (until May 31, 2017).</p>
<p>We will know soon whether the crossbenchers will bow to government pressure and pass these two controversial bills.</p><img src="https://counter.theconversation.com/content/56676/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Forsyth is a Consultant with the Employment, Workplace & Safety Team at Corrs Chambers Westgarth. He is/has conducted commissioned research for organisations including the Victorian Government, CFMEU (Mining and Energy Division), Business Council of Australia and Fair Work Commission.</span></em></p>To what extent would the ABCC and Registered Organisations bills actually deal with union corruption or criminality if passed?Anthony Forsyth, Professor of Workplace Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/573862016-04-06T12:27:26Z2016-04-06T12:27:26ZTurnbull needs to act on bank royal commission to boost his credibility on the unions<p>Malcolm Turnbull argues it is so vital to revive a tough watchdog in the construction industry that there will be a double dissolution if the Senate refuses to agree.</p>
<p>Critics such as Queensland independent senator Glenn Lazarus point to scandals and bad behaviour in other areas and say that if the Australian Building and Construction Commission (ABCC) were to be resurrected, it should be as a wide anti-corruption body – a proposition the government won’t countenance.</p>
<p>It’s reasonable for Turnbull to resist calls to transform the proposed ABCC into a new and different entity. That would not be an amendment but a complete change of concept for the body. The case for such a comprehensive new organisation has not been established.</p>
<p>But the broader point being made has some validity. If the government believes it is imperative to tackle problems with the unions, it can’t credibly ignore those in other areas.</p>
<p>Two obvious examples are what’s been happening in the financial sector, and the inadequacy of the federal law for the disclosure of electoral donations.</p>
<p>Turnbull on Wednesday laid into the banks with damning comments about ethical lapses and failure to put customers first. He said pointedly that the public, via the government, had supported the banks during the global financial crisis and now many Australians were asking “have our bankers done enough in return for this support? Have they lived up to the standards we expect, not just the laws we enact?”</p>
<p>We know the answers to these questions are, for the most part, no. Senate committee probing into the Commonwealth Bank produced evidence of appalling behaviour in the financial advice area, where people who were entitled to honest and neutral help with their investments were instead sold products designed to best reward adviser and bank.</p>
<p>We also know that if it were not for the Senate the government – pushed by the banks – would have unwound the financial advice controls Labor brought in.</p>
<p>This week has seen the Australian Securities and Investments Commission (ASIC) move against Westpac for allegedly manipulating a benchmark interest rate to boost profits. Earlier, action had been launched against the ANZ for similar conduct.</p>
<p>There are many other examples of bad behaviour in the banking and wider financial sector.</p>
<p>Turnbull dodged a reporter’s question on Wednesday about calls for a royal commission. But if it was good enough for the Coalition to have a royal commission into unions, why not have one into the financial sector?</p>
<p>Bad union behaviour hits the economy and workers. Unscrupulous operations by banks and other financial institutions hurt many customers and undermine confidence in the sector.</p>
<p>Turnbull would sound more convincing about the ABCC if he also promised to have a comprehensive investigation into misconduct in the financial sector where – as with the union movement – issues of “culture” needed tackling.</p>
<p>The other area to which Turnbull should turn attention if he is to be consistent is that of political donations. The complicated shenanigans indulged in by the NSW Liberals – Turnbull’s home party – to get around that state’s strong donation laws have been disgraceful. They have now been called out by the NSW Electoral Commission, which said it would withhold their public funding until there was proper disclosure in accordance with the law.</p>
<p>The federal disclosure provisions are much less stringent than those in NSW, with the current (indexed) disclosure threshold more than A$13,000. Donations under that do not have to be made public.</p>
<p>Left without reform, the issues around donations will corrode our democracy. We need a much tougher, more transparent federal regime, with the threshold a lot lower and disclosure having to be made in real time.</p>
<p>These would be important changes, albeit mild compared with what Turnbull advocated when he was shadow treasurer. Then, he suggested donations from organisations, including unions and companies, should be banned, with only those from individuals allowed.</p>
<p>Electoral funding and disclosure should be a matter of debate at this election. This is not just as a result of what we have seen happening with the NSW Liberals, or the fact that the unions buy clout with Labor. It is because the power of money and the potential danger of its influence on our politics will only grow in coming years – and the best antidote is to shine a bright light continuously on who is paying what to whom.</p>
<p>If Turnbull acted on the financial sector and if he promised to put a more stringent set of rules in place governing political donations, he would bolster his case on the unions.</p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/mxpw3-5e2cdb?from=yiiadmin" data-link="http://www.podbean.com/media/player/mxpw3-5e2cdb?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/57386/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Michelle Grattan owns bank shares.</span></em></p>Malcolm Turnbull argues it is so vital to revive a tough watchdog in the construction industry that there will be a double dissolution if the Senate refuses to agree. Critics such as Queensland independent…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/541192016-02-03T06:45:46Z2016-02-03T06:45:46ZPolitics podcast: Michaelia Cash on the government’s push to restore the ABCC<p>As the government turns up the heat over its push to restore the Australian Building and Construction Commission (ABCC), Employment Minister Michaelia Cash has revealed she is willing to agree to senator David Leyonhjelm’s call for a sunset clause in the legislation. </p>
<p>“David has raised that with me and … yes, I would accept an eight-year sunset clause,” she said. She said in that time the ABCC would demonstrably prove its worth in curbing lawlessness in the construction industry, and improve productivity.</p>
<p>In the aftermath of the trade union royal commission, Cash talks about a restored ABCC’s powers, proposed revamped registered organisations legislation and double-dissolution triggers. </p>
<p>Cash, also minister for women, outlines plans for promoting gender equality in the public service, and calls on the Liberal Party across Australia to undertake “audits” on female participation.</p><img src="https://counter.theconversation.com/content/54119/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Michaelia Cash reveals to Michelle Grattan she is willing to agree to David Leyonhjelm's call for a sunset clause on the ABCC legislation.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/540712016-02-02T11:40:00Z2016-02-02T11:40:00ZTurnbull forced to delay reshuffle until March as Warren Truss leaves Nationals confused<p>When Malcolm Turnbull addressed his partyroom on Tuesday, he had a double message.</p>
<p>The election could reasonably be expected at the normal time, between August and October, Turnbull said. That’s his current line. But, he added, that was not set in stone: a double dissolution was a “live option” that would have to be weighed up.</p>
<p>Translated, Turnbull is saying: I plan to go full term but I want to draw attention to this gun in my pocket, to encourage the Senate to pass some big measures, notably those dealing with union bad behaviour.</p>
<p>Turnbull’s approach is understandable. But he has to be careful. He needs to keep up business confidence and doubt around election timing can harm that. The nuances get lost in the mad media cycle. On the other hand, business wants to curb the unions and perhaps in that cause will be tolerant of a bit more uncertainty.</p>
<p>Labor will not be influenced by the threat of a double dissolution, which would have to be held by mid-July. It is already operating as though the election is next month.</p>
<p>A double dissolution carries the risk of a more fragmented Senate crossbench than now because the quota is smaller, which is a disincentive to calling one.</p>
<p>But even with a smaller quota some, though not all, of the existing “micro” players would almost certainly be swept out. Whether any crossbenchers will take account of the threat to their own futures when considering their attitudes to bills is another matter.</p>
<p>Despite having a softer image than Tony Abbott, Turnbull will exploit to the full the damning report from the trade union royal commission that his predecessor set up. Turnbull gets the benefit of Abbott’s very political act.</p>
<p>The government on Tuesday reintroduced legislation to resurrect the watchdog Australian Building and Construction Commission (ABCC). On current crossbench attitudes, its prospects – after being rejected once – are not good. The government will soon bring back tough legislation on registered organisations.</p>
<p>Turnbull told his MPs that the commission report was “a watershed moment”, showing a culture of corruption and malfeasance across sections of the union movement.</p>
<p>Bill Shorten still looks weak on the issue of industrial wrongdoing and Labor is conflicted; the bottom line is the unions have too much influence in and over the ALP and Shorten has shown little inclination to do anything about it.</p>
<p>At a tactical level, the government has been cack-handed in some of its play around the commission report. It said it would show the secret part of the report to crossbenchers whose support it is seeking for the ABCC legislation, but that access wouldn’t be accorded to Labor and the Greens. </p>
<p>It then changed its mind, offering them access but on such absurdly restrictive conditions that they could respectably decline. The offer was for just one person in each of Labor and the Greens to view the material. No notes could be taken and “the details and nature of the material … may not be disclosed to third parties”.</p>
<p>Whether Turnbull ends up able to wield any leverage over the Senate on his industrial relations legislation remains to be seen. He certainly doesn’t appear to have the slightest influence when it comes to clearing the way for his ministerial reshuffle, which is waiting on Nationals leader Warren Truss clarifying his future.</p>
<p>Unfortunately Truss, now almost universally expected to quit the leadership, muddied the waters when he spoke to the Nationals partyroom on Monday.</p>
<p>He flagged an announcement at the end of this sitting. Colleagues took that to mean when the parliamentary fortnight wraps up next week. But he apparently meant the end of this session, which finishes mid-March. Truss is said to want to be present through much of the budget’s expenditure review process. If he sticks to this timetable it is very awkward for Turnbull. It delays the reshuffle, and has Turnbull dancing to Truss’ (slow) tune.</p>
<p>The reshuffle – in the wake of Jamie Briggs quitting the ministry because of inappropriate behaviour and Mal Brough standing aside – is expected to be limited but not minimal. Turnbull knows he needs to get on with it as soon as possible, but cannot. Having one set of changes before Truss’ announcement and another one after would be a farce. Never a patient man, Turnbull’s degree of frustration can only be guessed at.</p>
<p>Meanwhile Turnbull’s problems on the tax front are increasing, as nervousness surfaces in the Nationals about the possibility of a higher GST. The Nationals hold some of the poorest electorates and say they would have a lot of trouble explaining a tax change which included a great deal of “churn” in compensation for limited benefit.</p>
<p>No wonder Turnbull was again cautious in Tuesday’s partyroom when talking about tax. On the GST issue, he is staying agile.</p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/47t6b-5c47ff?from=yiiadmin" data-link="http://www.podbean.com/media/player/47t6b-5c47ff?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/54071/count.gif" alt="The Conversation" width="1" height="1" />
When Malcolm Turnbull addressed his party room on Tuesday, he had a double message.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/540552016-02-02T06:52:21Z2016-02-02T06:52:21ZPolitics podcast: Tony Burke on Labor’s fiscal challenge<p>In the first Politics Podcast for 2016, Michelle Grattan and Shadow Finance Minister Tony Burke discuss the challenging gap between government revenue and spending, and what Labor would do to address the problem.</p>
<p>Burke pitches Labor’s recent education announcements as being central to its economic vision, describing them as a “strategic economic investment” in what Australia will need post the mining boom. </p>
<p>He also responds to the divisions in Labor over GST changes, and the need to ensure Australia maintains its triple-A credit rating. Asked about Treasury Secretary John Fraser’s high-profile speech last week, Burke is complimentary.</p><img src="https://counter.theconversation.com/content/54055/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the first Politics Podcast for 2016, Michelle Grattan and Tony Burke discuss the challenging gap between government revenue and spending.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/535042016-01-21T19:20:15Z2016-01-21T19:20:15ZGrattan on Friday: After enjoying the foreign stage lights, Malcolm Turnbull returns to a fractious backyard<p>Malcolm Turnbull’s first visit as prime minister to the United States this week was neat, well-packaged and very successful.</p>
<p>Turnbull spent just one night in Washington – but that was at Blair House, the official guest residence, an invitation that is seen as marking top treatment. He looked comfortable with Barack Obama in the Oval Office, and they were in accord on the checklist of items discussed. It was apparently an easier rapport than last year when they met during the summit season.</p>
<p>Turnbull had dropped in to Iraq and Afghanistan on his way, which provided not just a chance to visit Australian troops but meant he had a very current read-out to give Obama.</p>
<p>There have been different interpretations of whether Turnbull presented to the Americans a more “independent” face of Australian policy. </p>
<p>It seems more a matter of tone and language than substance.</p>
<p>Tony Abbott’s approach to the Americans and the alliance had a strong tribal element; Turnbull talks values and emphasises America’s role in underpinning and promoting a rules-based international order. But their landing point in geopolitical terms is similar, making for considerable continuity in Australia’s approach. It is a continuity imposed by strategic fundamentals.</p>
<p>It’s true that before the visit the Turnbull government had responded negatively to the US request for more military help in the conflict with Islamic State - a request made in what <a href="http://www.theaustralian.com.au/in-depth/terror/most-important-boots-on-the-ground-are-iraqi-pm/news-story/1af9fcb50a7454bdcf2e4db589d0cf5e?sv=7e51c5b8c0d67f8feee3424649144ebb">Turnbull described</a> as a “form” letter to some 40 countries. </p>
<p>It’s assumed Abbott would probably have scrambled to say yes. But the Turnbull government’s response has to be put in the context that this was not a specific request and Australia already is the second-largest contributor.</p>
<p>After the glow of a trip in which nothing went wrong, Turnbull has returned home to a fractious and somewhat uncertain scene on his side of politics.</p>
<p>In Turnbull’s own state of NSW, the opening of Liberal preselections has spurred bitter power plays. A combination of factionalism, pressure for generational renewal, and boundary changes in the recent redistribution makes for red-hot tensions.</p>
<p>The party’s conservatives, angry ants in the post-Abbott era, see the moderates and their allies (some of whom are themselves from the fractured right) trying to expand their seats in the general shake-up. Veteran MPs Philip Ruddock, Bronwyn Bishop and senator Bill Heffernan are under pressure to make way for younger people. There is especially strong feeling against Bishop because of the damage she caused the government last year. New electoral boundaries are turning Liberal against Liberal.</p>
<p>A certain amount of preselection angst inevitably precedes every election. Turnbull himself mounted a ferocious and successful campaign to replace a first-term MP. Unless something extraordinarily silly occurred, such as up-and-comer Angus Taylor being denied preselection in his seat of Hume – which one can be pretty confident won’t happen – most of the turbulence will eventually subside after the battles are resolved.</p>
<p>Turnbull formally stands by all his current parliamentarians, although in practice his attitudes towards the fate of individuals obviously varies. His best course is to exert whatever leverage he needs to through Liberal federal director Tony Nutt and personally to stay as much as possible in the background.</p>
<p>Abbott’s preselection is not at risk; the question is whether he seeks its renewal. He is said to be still weighing his options. His alternatives for another career are limited, and what he has said so far suggests he is inclined to go to another term. If he does, this will reinforce the distractions in the parliamentary Liberal Party.</p>
<p>Probably more important, though, is what happens in the Nationals. If, as speculated, party leader and Deputy Prime Minister Warren Truss soon steps down from the leadership and is replaced by the volatile Barnaby Joyce, the dynamics at the top of the government will be changed. It’s a prospect that makes many Liberals nervous. Turnbull is waiting on Truss signalling his future before he undertakes the reshuffle that’s needed after Jamie Briggs’ resignation and the standing aside (but not resignation) of Mal Brough.</p>
<p>Despite some media chatter, there seems minimal prospect of a pre-budget election. Turnbull and his ministers are repeatedly talking about the government going full term (Treasurer Scott Morrison was categoric on Thursday). These comments would be politically unwise if Turnbull had any idea of rushing off to the polls. That would make him look untrustworthy, a bad start to a campaign. </p>
<p>Anyway, there is a great deal of work to be done before the election – the tax package is still a good way off.</p>
<p>Not that the opposition leader is waiting to see that package. Bill Shorten has been campaigning as though changes to the GST are already government policy. Shorten’s problem, however, is that it is very hard to get traction for a scare campaign unless and until there is an actual policy to justify it.</p>
<p>In our poll-driven political world, politicians on both sides will be waiting for the first major polls of the year. Anecdotally, Shorten continues to be in an extremely poor position. Turnbull has in his political possession lethal material from the trade union royal commission report released just after Christmas – the opposition’s attempts to discredit the commission are overwhelmed by the damning evidence. Labor still refuses to take a sufficiently tough approach to bad union behaviour and rogue unions, particularly the Construction, Forestry, Mining and Energy Union.</p>
<p>The ALP wishes desperately it could turn the clock back a year when its prospects appeared so bright against the hapless Abbott.</p>
<p>Would Labor be better placed if it had chosen Anthony Albanese as leader? In retrospect, probably. But it’s unlikely he would be competitive against Turnbull either.</p><img src="https://counter.theconversation.com/content/53504/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Malcolm Turnbull’s first visit as prime minister to the United States this week was neat, well-packaged and very successful.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/527592016-01-07T23:38:51Z2016-01-07T23:38:51ZCorporate-style regulation of unions won’t defeat corruption<p>Commissioner Dyson Heydon’s <a href="https://www.tradeunionroyalcommission.gov.au/reports/Pages/Volume-1.aspx">79 recommendations</a> from the <a href="https://www.tradeunionroyalcommission.gov.au/Pages/default.aspx">Royal Commission into Trade Union Governance</a> represent a steamroller approach to industrial democracy and basic human rights, such as the right to collectively bargain and the freedom of association. </p>
<p>Heydon referred 45 instances of possible corruption for further investigation and in a novel move for Royal Commissions, released details of “possible” offences by a number of senior unionists (mostly procedural or quasi-criminal in nature) after making his findings on the basis of pared-back rules of evidence. </p>
<p>If these recommendations become law, union-busting in the 21st century will resemble a dim likeness of the <a href="https://en.wikipedia.org/wiki/Combination_Act_1799">Combination Acts</a> from early 19th century Britain. Like that legislation, these recommendations propose subjecting unions and officials to criminal as well as increased quasi-criminal sanctions. </p>
<p>Criminal offences will be further be subject to the lowest criminal standard of proof (“recklessness”) while the existing civil standard for quasi-criminal offences is also to be lowered. The offence provisions echo the “good faith” provisions under the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s184.html"><em>Corporations Act 2001 (Cth)</em></a>, which create a murky and highly discretionary charge. </p>
<p>Furthermore, if the recommendations are taken up by the Turnbull government, the State will be vested with increased powers to completely dismantle or <a href="https://www.tradeunionroyalcommission.gov.au/reports/Pages/Volume-1.aspx">“deregister”</a> recalcitrant trade unions through a new Registered Organisations Commission. </p>
<p>In a contemporary twist to these old laws, the Royal Commission has recommended increased surveillance, monitoring and prosecution by a specialist union-busting police force as well as the compulsory professionalisation of working-class trade unions, by imposing strict character and educational requirements on union officials. </p>
<p>Infringements of certain procedural industrial laws – such as the payment of union dues, rights of entry, secondary boycotts and prohibited industrial action – will result in increased criminal and quasi-criminal penalties. </p>
<p>Senior officials will face criminal liability for infringements by stewards on the shop floor, followed by deregistration of the union for repeated or serious breaches. Even picketing will be considered an offence, rendered of the same criminal status as an unsolicited strike. </p>
<p>The Royal Commission and the <a href="http://www.liberal.org.au/better-transparency-and-accountability-registered-organisations">Liberal Party</a> are calling for corporate-style regulation of unions on the basis of tit-for-tat political argument. This is a position that neglects to acknowledge that corporations exist exclusively to advance the profits of shareholders, while trade unions are community organisations that collectively advance the interests of members, to address a fundamental inequality in the bargaining power between individual workers and capital. </p>
<p>Given that corporations and unions perform fundamentally different social roles, they should accordingly be treated differently by law. This much is acknowledged by both <a href="http://www.australianreview.net/digest/2015/02/peetz.html">Australian</a> and <a href="http://trs.sagepub.com/content/16/3/333.abstract">international expertise</a> on the regulation of trade unions to defeat corruption.</p>
<p><a href="http://www98.griffith.edu.au/dspace/bitstream/handle/10072/30100/59865_1.pdf?sequence=1">Detailed Australian research</a> demonstrates that corrupt practices within unions are best defeated from within unions, rather than subjecting unions to criminalisation and oppressive regulation by the state. </p>
<p>This research reveals that only strong unions tend to defeat corruption. Strong unions are those that are able to foster internal cultures of democracy through networks of membership participation and communication, as free as possible from interference by a hostile media and political arena. </p>
<p>Indeed, the <a href="https://theconversation.com/bikies-unions-and-the-abcc-spinning-the-policing-of-work-22479">historical experience</a> of union-busting in the United States provides clear evidence that regulation leads to weakness, desperation and further corruption within unions. </p>
<p>Almost every comparable advanced economy to Australia (including Britain, Sweden, Denmark and Germany) maintains strong codes of corporate regulation. Unions are <a href="http://www.eurofound.europa.eu/observatories/eurwork/comparative-information/working-life-country-profiles">not regulated by the State</a>, and in many cases are protected by constitutional rights to collectively bargain, as well as the freedom of association (for instance the United States). </p>
<p>The Japanese Constitution specifically enshrines the right to form labour unions to advance the rights and interests of workers. In countries such as France, where limited regulation exists in respect to discrete issues like internal trade union elections, unions are provided a statutory and institutional role in the governance of the state. </p>
<p>In Australia, not only do unions lack any constitutional legal protection, they have suffered vigorous and sustained attack by Coalition federal governments since 1996. In 2007 these policies cost the Coalition an election. </p>
<p>The Coalition now has a choice to preserve industrial democracy and secure an easy electoral victory, or to continue the war on unions and lose their middle ground for the foreseeable future.</p><img src="https://counter.theconversation.com/content/52759/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eugene Schofield-Georgeson is a member of the National Tertiary Education Union (NTEU) and the New South Wales Council of Civil Liberties (NSWCCL).</span></em></p>Dyson Heydon’s recommendations for union reform represent a steamroller approach to industrial democracy.Eugene Schofield-Georgeson, PhD Candidate, Macquarie Law School, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/503702015-11-08T10:51:08Z2015-11-08T10:51:08ZBill Shorten needs to demonstrate independence from the unions<p>Bill Shorten can heave a sigh of relief at the statement from the royal commission into union corruption that he didn’t do anything illegal in the activities it examined in his Australian Workers’ Union past.</p>
<p>If Jeremy Stoljar, SC, counsel assisting the commission, had recommended in his Friday submissions that the commission find Shorten might have breached the law, that surely would have killed his leadership.</p>
<p>Shorten has dodged a bullet, while Stoljar has said his union successor Cesar Melhem, now a Victorian state Labor politician, and construction company Thiess John Holland may have committed offences in the company’s payments to the union during the construction of the Melbourne EastLink project. Discussions on the matter started in Shorten’s time.</p>
<p>Not that the commission is necessarily all done on the subject of Shorten – commissioner Dyson Heydon’s report comes at the end of the year.</p>
<p>But assuming there is nothing seriously adverse for him there, Shorten’s allegiances with and obligations to the unions still present him with credibility problems as alternative prime minister.</p>
<p>The details of union corruption and thuggery that have come out at the commission are appalling. It is true, as Shorten and Labor keep saying, that the commission was set up as a political exercise with him as one of its targets. But that does not alter the fact that it has exposed shocking conduct.</p>
<p>Some of the worst behaviour has involved the Construction, Forestry, Mining and Energy Union (CFMEU). </p>
<p>Surely that union should be disaffiliated by the ALP, or at least have its affiliation suspended until there is clear evidence the situation has been rectified.</p>
<p>But the CFMEU forms part of Shorten’s power base. It was vital at this year’s ALP national conference in helping him with the numbers on key issues, most notably the policy that allows a future Labor government to turn back asylum seeker boats.</p>
<p>The CFMEU’s influence was one factor in the very strong stand Labor took on the China-Australia free trade agreement.</p>
<p>And Shorten’s workplace relations spokesman, Brendan O'Connor, is the brother of Michael O'Connor, who is national secretary of the union.</p>
<p>In a September profile of Michael O'Connor, Ewin Hannan wrote in the <a href="http://www.afr.com/brand/afr-magazine/meet-cfmeu-boss-michael-oconnor-with-high-octane-enemies-unlikely-friends-20150816-gj0go5">Australian Financial Review</a> that he “wields significant influence in both the union movement and the Labor Party. … [T]hrough O’Connor’s relationships in the ALP and with not only other unions but also the Senate crossbenchers and the Greens, he has been effective at stymying change that his members don’t agree with and driving home policies they support”.</p>
<p>Hannan also noted that colleagues said “the brothers are mindful of the obvious conflict of interest but watch each other’s backs as they negotiate their way through the often treacherous world of labour movement politics, and the competing interests of the party’s political and industrial wings”.</p>
<p>That’s just the point. Labor’s workplace spokesman and the head of a powerful union that includes a disreputable construction section should not be watching each other’s backs.</p>
<p>Asked about the relationship, Brendan O'Connor said in a statement to The Conversation on Sunday: “As shadow minister I’m well aware of avoiding potential conflicts of interest and I act accordingly”.</p>
<p>One piece of legislation that the O'Connors have helped stop is the restoration of the Australian Building and Construction Commission. Yet surely in the circumstances there is a strong case for this to be brought back. </p>
<p>The ALP and Senate crossbenchers have also defeated the Coalition bill on registered organisations.</p>
<p>Brendan O'Connor said recently this bill would place “higher penalties and a more onerous regime on officers of employer bodies and unions than those imposed on company directors”.</p>
<p>He said the Labor government in 2012 had toughened the laws covering these organisations. “As a result, the regulation of trade unions in Australia has never been stronger, accountability has never been higher, and the power of the FWC [Fair Work Commission] to investigate and prosecute for breaches has never been broader.”</p>
<p>The public and members of unions, however, may well not be reassured that sufficient has been done.</p>
<p>Shorten was, reasonably enough, unhappy that the royal commission released its finding about him after 8PM on Friday, and without giving prior notice. His lawyer has written to ask why his message asking about timing wasn’t returned.</p>
<p>The commission was at fault and it handed Shorten a political point.</p>
<p>But that doesn’t alter the problem he has, and should address, of apparently being too beholden to his union base.</p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/426wt-59f829?from=yiiadmin" data-link="http://www.podbean.com/media/player/426wt-59f829?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/50370/count.gif" alt="The Conversation" width="1" height="1" />
Bill Shorten can heave a sigh of relief at the statement from the royal commission into union corruption that he didn’t do anything illegal in the activities it examined in his Australian Workers’ Union…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/492372015-10-15T06:15:44Z2015-10-15T06:15:44ZPolitics podcast: Sam Dastyari unleashed<figure><img src="https://images.theconversation.com/files/98497/original/image-20151015-30707-qo6j0g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sam Dastyari unleashes with Michelle Grattan in Canberra's Muse wine bar and bookstore</span> </figcaption></figure><p>In The Conversation’s first live podcast, which took place in Canberra’s Muse wine bar and bookstore, Sam Dastyari gives a candid insight into Labor’s strategy to win back government, the threat of the Greens and much more.</p><img src="https://counter.theconversation.com/content/49237/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In The Conversation's first live podcast, Sam Dastyari gives a candid insight into Labor's strategy to win back government, the threat of the Greens and much more.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/469742015-09-07T00:09:04Z2015-09-07T00:09:04ZCan the Senate force the removal of a royal commissioner?<figure><img src="https://images.theconversation.com/files/93832/original/image-20150904-28887-12kxcxp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Labor says it will move a motion in the Senate this week for a message to be sent to the Governor-General, requesting he dismiss Dyson Heydon as royal commissioner.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Last Monday, Dyson Heydon, the royal commissioner investigating trade union corruption, <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Documents/2015/Evidence31August2015/ReasonsforRulingonDisqualificationApplicationdated31August2015.pdf">dismissed the unions’ application</a> for him to step down on the ground of apprehended bias. The unions are yet to reveal whether they will take the case to the courts.</p>
<p>In the meantime, Labor <a href="http://www.theguardian.com/australia-news/2015/sep/01/labor-seeks-crossbench-support-for-governor-general-to-sack-dyson-heydon?CMP=soc_568">says</a> it will move a motion in the Senate this week for a message to be sent to Governor-General Sir Peter Cosgrove, requesting he dismiss Heydon.</p>
<p>Does the Senate normally send these sorts of messages to the governor-general? And will it lead to the governor-general removing Heydon?</p>
<h2>How does the Senate communicate with the Governor-General?</h2>
<p>The Senate can communicate with the Queen or Governor-General by making an “address”. This formal process for communication with the Governor-General is set out in the <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/aso/so172">Senate standing orders</a> – the rules governing Senate practice and procedure. </p>
<p>The standing orders require that a motion be put before the Senate in order for the Senate to make an address to the Governor-General. If the Senate passes the motion, the Senate president will formally present the address to the Governor-General at a meeting between the Governor-General, the Senate president and other senators. The president will read the address to the Governor-General, with the senator who initiated the address also being present. </p>
<p>An address to the Governor-General is uncommon. Aside from an address-in-reply to the Governor-General’s speech opening a new parliamentary session, an address of the Senate has not been presented to the Governor-General since 1931.</p>
<p>In 1931, the Senate wrote to the Governor-General requesting that the Governor-General not sign off on any regulations that the Senate had already disallowed in that same parliamentary session. The Governor-General, former High Court chief justice Sir Isaac Isaacs, wrote back to the Senate explaining that he must:</p>
<blockquote>
<p>Simply adhere to the normal principle of responsible government by following the advice of ministers who are constitutionally assigned to me for the time being as my advisors.</p>
</blockquote>
<p>As Isaacs explained, the Governor-General ordinarily acts on the advice of the executive – essentially the ministers of the government of the day.</p>
<h2>What is the Governor-General’s role in establishing royal commissions?</h2>
<p>Under the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rca1902224/s1a.html">Royal Commissions Act</a>, it is the Governor-General who has the power to establish a royal commission. Royal commissions are established by <a href="https://www.comlaw.gov.au/content/whatisit">“letters patent”</a>, a legal document signed by the monarch or Governor-General to grant some sort of right. </p>
<p>In the case of royal commissions, the letters patent appoint the royal commissioner and set out the <a href="http://www.tradeunionroyalcommission.gov.au/About/Pages/Letterspatent.aspx">terms of reference</a> – the scope of the inquiry. </p>
<p>The Governor-General does not establish royal commissions on their own volition, but does so at the government’s request. This is a function of the Governor-General’s role within the Australian constitutional system. Section 61 of the <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution">Constitution</a> vests the executive power of the Commonwealth:</p>
<blockquote>
<p>… in the Queen and is exercisable by the Governor-General as the Queen’s representative.</p>
</blockquote>
<p>Sections 62 and 64 of the Constitution state that the Governor-General shall be advised by the “Federal Executive Council” and that this council is made up of all the government ministers. So, in practical terms, the executive power is ordinarily exercised by the Governor-General on the advice of the ministers through cabinet. </p>
<p>There are rare occasions when the Governor-General will act without – or contrary to – the government’s advice. These circumstances involve the exercise of the “reserve powers”. These instances are exceptional and involve such things as the power:</p>
<ul>
<li><p>to refuse to dissolve parliament or to force its dissolution; </p></li>
<li><p>to appoint a prime minister in the case of a “hung parliament”; </p></li>
<li><p>to dismiss a prime minister if they have lost the confidence of the House; or (perhaps) </p></li>
<li><p>to dismiss a prime minister or minister if they have acted unlawfully.</p></li>
</ul>
<h2>How might the Governor-General respond to a request?</h2>
<p>Given the Governor-General usually acts on the advice of the government and its ministers, an address from the Senate is unlikely to have any effect. </p>
<p>Should it pass the Senate, the Governor-General will presumably receive the address, consult with government ministers through the Federal Executive Council and be advised by the government that Heydon is to remain as royal commissioner. </p>
<p>It seems that this is not an instance when the Governor-General would exercise the “reserve powers” and act independently of the government. This conclusion is reinforced by a royal commissioner being appointed on the advice of the government. The same principle of acting on advice would apply with regard to removal.</p>
<p>The effect of the Senate sending a message to the Governor-General in these circumstances is largely political. If a legal solution is sought by Labor and the unions, the only option is to take the matter to the courts.</p><img src="https://counter.theconversation.com/content/46974/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Webster does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given the Governor-General usually acts on the advice of the government and its ministers, an address from the Senate on Dyson Heydon is unlikely to have any effect.Adam Webster, Lecturer, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/469392015-09-03T04:31:49Z2015-09-03T04:31:49ZAfter Heydon and Carmody, does Australia need a new test for judicial recusal?<figure><img src="https://images.theconversation.com/files/93702/original/image-20150903-24509-73z3fa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Trade union royal commissioner Dyson Heydon refused to find that he was affected by apprehended bias.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>In recent months, two high-profile cases have illustrated why the apprehended bias procedure for recusal is in need of reform. Earlier this week, Dyson Heydon AC QC <a href="https://theconversation.com/heydon-rejects-apprehended-bias-claim-stays-on-as-royal-commissioner-46346">refused to step down</a> as the royal commissioner investigating corruption in trade unions. </p>
<p>In May, former Queensland chief justice Tim Carmody <a href="http://www.abc.net.au/news/2015-05-07/chief-justice-withdraws-himself-from-cowan-appeal/6451550">eventually agreed</a> to step down from Brett Cowan’s murder appeal, but not before he had been accused of being unable to decide the issue impartially.</p>
<p>Under the Australian procedure for determining disqualification for bias and <a href="https://theconversation.com/explainer-dyson-heydon-and-claims-of-apprehended-bias-46202">apprehended bias</a>, applications are made in the first instance to the judge against whom bias is alleged. The judge must apply the test of whether a “fair-minded lay observer” might reasonably apprehend that they might not be impartial.</p>
<p>Australia is not alone in this. Self-disqualification is also accepted practice in the UK, the US, Canada and New Zealand. Similar practice applies to <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2015/20.html">other government decision-makers</a>, such as royal commissioners, although some accommodation is made for any differences. For simplicity, I will refer to the rule as it applies to judges.</p>
<p>American professor of judicial ethics Charles Gardner Geyh has <a href="http://www.floridalawreview.com/wp-content/uploads/8-Geyh.pdf">argued</a> that the self-disqualification procedure creates a suspicion that:</p>
<blockquote>
<p>… the fox is guarding the hen house.</p>
</blockquote>
<h2>Heydon and the ‘strangeness’ of self-disqualification</h2>
<p>Heydon <a href="https://theconversation.com/heydon-rejects-apprehended-bias-claim-stays-on-as-royal-commissioner-46346">refused to find</a> that he was affected by apprehended bias on the basis that he had accepted an invitation to speak at a Liberal Party fundraiser. His decision was <a href="http://www.smh.com.au/federal-politics/political-opinion/trade-union-royal-commission-dyson-heydon-finds-fatal-flaw-in-unions-argument-20150830-gjbbl9.html">widely criticised</a>, and the unions may yet seek to have it reviewed in the courts.</p>
<p>In <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Documents/2015/Evidence31August2015/ReasonsforRulingonDisqualificationApplicationdated31August2015.pdf">his reasons</a>, Heydon observed that:</p>
<blockquote>
<p>… it might seem strange that a person complaining about the bias of a royal commissioner should make application for disqualification not to a court, but to the person accused of bias or apprehended bias.</p>
</blockquote>
<p>Heydon commented that an ordinary member of the public would likely muse: </p>
<blockquote>
<p>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?</p>
</blockquote>
<p>Heydon doesn’t answer his question. Rather, he simply states that it is “at least a custom and, leaving aside exceptional circumstances, possibly also a rule of law” that the first-instance decision about apprehended bias is made by the person against whom the allegation is brought.</p>
<p>It might be a custom and even a legal rule, but it has not gone without criticism even from within the legal community. Former High Court judge Ian Callinan once <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2000/63.html">argued</a> that the practice “place[s] a judge in … an invidious position”. He suggested that the decision ought to be made by another judge, because:</p>
<blockquote>
<p>That procedure would better serve the general public interest and the litigants in both the appearance and actuality of impartial justice.</p>
</blockquote>
<p>What Callinan, and to a lesser extent Heydon, is acknowledging is that there are inherent shortcomings – not least in relation to public perception – in a procedure that asks judges to make objective and rational assessments about how their own conduct, relationships or interests might appear to others. </p>
<p>Behavioural psychology research into what is known as the <a href="http://psp.sagepub.com/content/28/3/369.short">“bias blind spot”</a> reveals that all humans – judges included – will struggle to apply such a test. This research demonstrates that we all tend to think that we are ourselves capable of making objective and rational decisions, and we also all tend to doubt that others have the capacity to do so.</p>
<p>When a judge is asked to assess their own objectivity by reference to the perspective of a third person, the bias blind spot compounds the likelihood they will get it wrong.</p>
<p>Heydon’s refusal to recuse himself also reveals another shortcoming of the self-disqualification procedure. The judge will often have to rely upon information that they reveal, and may even require a judge to determine whether to prefer their version or interpretation of events to that of others. </p>
<p>Heydon made what he referred to as a “contextual” statement at the start of the application as to his knowledge of the Liberal Party event. He accepted that the fair-minded lay observer would believe his evidence that, for example, as he has no personal computer, he is “incapable of sending or receiving emails” and so they must be printed for him, and therefore he did not read the attachments of emails that were crucial to the apprehended bias claim.</p>
<p>It was also revealed at the hearing that Heydon had not disclosed to the parties making the application all of the relevant email correspondence pertaining to his invitation to speak at the event. Counsel for the Australian Council of Trade Unions <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Documents/Transcripts/2015/Transcript-21-August-2015.PDF">lambasted</a> Heydon. He argued that the fair-minded lay observer would be “most perturbed” – even “horrified” – by Heydon’s failure to disclose the relevant information. </p>
<h2>Carmody and the ‘bizarre bias sideshow’</h2>
<p>Heydon’s case is not an isolated example of the disqualification procedure’s shortcomings. In May, Carmody stepped down from hearing Cowan’s appeal of his conviction for Daniel Morcombe’s murder in an episode that also raised eyebrows.</p>
<p>The allegations against Carmody were that, after the Court of Appeal had heard arguments in Cowan’s appeal but before it delivered judgment, Carmody had <a href="http://www.brisbanetimes.com.au/queensland/chief-justice-tim-carmody-denies-bias-against-brett-peter-cowan-20150424-1mss3e.html">met with</a> a prominent child protection advocate who had made public statements that Cowan was guilty. </p>
<p>Carmody revealed these meetings to Cowan’s lawyers, but indicated when he did so that he did not believe they gave rise to apprehended bias. Nonetheless, Cowan’s lawyers brought an application for his disqualification. </p>
<p>In an unusual move, based on Carmody’s claim that he did not think he was affected by apprehended bias, Cowan’s lawyers challenged Carmody’s impartiality in determining his own impartiality. They asked instead that the full Court of Appeal determine the application.</p>
<p>In an even more exceptional turn of events, Carmody tabled in court a number of <a href="http://www.abc.net.au/news/2015-05-08/decision-reveals-animosity-chief-justice-carmody-margaretmcmurdo/6454206">internal emails</a> between himself and other members of the Court of Appeal. This gave a firsthand view of Carmody’s reaction to the application. The emails revealed that Carmody was vexed by the application for the whole court to hear the matter, and that he maintained that the argument he was affected by bias was “utterly preposterous”.</p>
<p>Carmody’s remarks reveal that, when a party brings an application for apprehended bias, at least some judges feel threatened and outraged by the suggestion that they might be biased. This will not be such a revelation to practising lawyers. Most lawyers <a href="http://sociallitigator.com/2015/09/01/trade-union-royal-commission-why-apprehended-bias-applications-are-so-hard-to-win/">appreciate</a> that an apprehended bias application should not be made lightly. </p>
<p>Such applications are likely to incense some judges. If it is unsuccessful, a party may suffer in the substantive case. Lawyers will also be wary because they will have to appear before the judge in future cases.</p>
<p>Eventually, Carmody <a href="http://archive.sclqld.org.au/judgepub/2015/carmody070515.pdf">announced</a> he was withdrawing from the case. This was not because he thought that he was affected by apprehended bias, but to avoid delaying justice for the Morcombe family, to preserve public confidence in the justice system, and so as not to prolong what he referred to as “this bizarre sideshow”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/93701/original/image-20150903-24477-w3ba39.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tim Carmody stepped aside from an appeal against a murder in Queensland.</span>
<span class="attribution"><span class="source">AAP/Dan Peled</span></span>
</figcaption>
</figure>
<h2>Toward reform</h2>
<p>There are undoubtedly efficiencies that are gained from having judges self-determine claims of bias and apprehended bias. Delay and costs would be incurred if, every time an application was made, a second judge had to be brought in. </p>
<p>Unscrupulous parties might even abuse such a process strategically to string out a particularly expense piece of litigation, or a time-sensitive one. </p>
<p>There is also a danger that such a procedure will encourage judges to step aside even when the test for apprehended bias is not satisfied, thus giving rise to potential “judge-shopping”. The danger is that, to avoid the inconvenience and potential embarrassment of a second judge finding that they are affected by apprehended bias, a judge may simply step aside when an objection is raised. </p>
<p>This is sometimes referred to as a “prudential recusal”. It is generally endorsed as an appropriate practice, but the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2000/63.html">High Court warned</a> that no judge should “automatically disqualify” themselves as it might lead to the “intolerable” position of individual parties being able to influence which judge decides their dispute. It may also lead to a flood of apprehended bias claims.</p>
<p>Despite its efficiencies, the Heydon and Carmody sagas reveal that the current procedure for determining apprehended bias is unsatisfactory and is apt to injure public confidence in the judicial system, not promote it. Important reforms could be relatively easily achieved.</p>
<p>First, where a judge is sitting as part of a panel – for example when Carmody was sitting as one of three judges on the Queensland Court of Appeal – the panel of judges should determine whether the test for apprehended bias is satisfied. </p>
<p>This is a practice that former High Court chief justice Sir Anthony Mason argued ought to be adopted. The <a href="http://www.saflii.org/za/cases/ZACC/1999/9.html">South African Constitutional Court</a> adopted it in 1999.</p>
<p>Second, to avoid some of the potential inefficiencies, where a judge is sitting alone, a second judge could be brought in to determine an application for disqualification only where the challenged judge has first determined that there is a reasonably arguable case for disqualification. </p>
<p>Finally, if there is any question as to whether the judge has made full disclosure of information in relation to the application, or has to make a judgment about the credibility of the facts that the judge has revealed about their own conduct, the decision ought to be referred to a second judge. </p>
<p>The idea of a judge determining the credibility or completeness of their own version of events is simply indefensible.</p><img src="https://counter.theconversation.com/content/46939/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council. She is a member of the National Tertiary Education Union.</span></em></p>There are inherent shortcomings in a procedure that asks judges to make objective and rational assessments about how their own conduct, relationships or interests might appear to othersGabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/463462015-08-31T06:47:26Z2015-08-31T06:47:26ZHeydon rejects apprehended bias claim, stays on as royal commissioner<figure><img src="https://images.theconversation.com/files/93389/original/image-20150831-17776-la8hkq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Applications from trade unions failed to convince Dyson Heydon to disqualify himself as royal commissioner.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Dyson Heydon, the royal commissioner investigating trade union corruption, on Monday <a href="http://www.theguardian.com/australia-news/live/2015/aug/31/dyson-heydon-to-reveal-future-at-helm-of-trade-union-royal-commission-live?CMP=share_btn_tw">declined to recuse himself</a> from the commission on the ground of apprehended bias.</p>
<p>Over the past two weeks, attention has focused on aspects of Heydon’s conduct that point to the possible perception of a pro-Liberal Party or anti-Labor Party stance. There’s his comments on the Rudd-Gillard governments at a <a href="http://www.smh.com.au/federal-politics/political-news/dyson-heydon-slammed-rudd-government-as-nonsubstantive-in-2013-speech-20150819-gj2d2g.html">speech</a> hosted by conservative think-tank the Centre for Independent Studies; there’s his <a href="http://www.abc.net.au/news/2015-08-17/dyson-heydon-on-panel-approved-tony-abbott-rhodes-scholarship/6703188">membership</a> of a selection panel that awarded a Rhodes Scholarship to the future prime minister, Tony Abbott.</p>
<p>And there’s his acceptance of an invitation to speak at the Sir Garfield Barwick lecture, organised by a branch of the Liberal Party, which sparked calls for Heydon to step down. But applications from trade unions <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Documents/2015/Evidence31August2015/ReasonsforRulingonDisqualificationApplicationdated31August2015.pdf">failed</a> to convince Heydon to disqualify himself.</p>
<h2>The hearing</h2>
<p>At a <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Documents/Transcripts/2015/Transcript-21-August-2015.PDF">hearing</a> on August 21, the unions’ main argument was simple. Robert Newlinds, SC, representing the Australian Council of Trade Unions and other unions, argued that the mere fact Heydon had accepted an invitation to speak at a Liberal Party function was enough to create an appearance of bias.</p>
<p>It didn’t matter whether the function was a fundraiser or simply a networking event. It didn’t matter what Heydon knew, thought or remembered about the details of the event. It didn’t matter that he ultimately withdrew from the engagement. The fact remained: the head of an intensely party-political royal commission had been prepared to associate himself publicly with the Liberal Party.</p>
<p>Just in case Heydon didn’t accept that argument, the unions developed a more detailed but fundamentally similar submission. This involved combing through the chains of emails between Heydon, his staff and the organisers of the Barwick lecture and arguing that the “fair-minded lay observer” – the hypothetical person on whom the <a href="https://theconversation.com/explainer-dyson-heydon-and-claims-of-apprehended-bias-46202">test for apprehended bias</a> centres – would conclude that Heydon’s purpose in accepting the invitation was to raise funds for the Liberal Party. </p>
<p>The unions were at pains to emphasise that they were not accusing Heydon of actually being biased. Their argument was that the fair-minded lay observer might reasonably apprehend that Heydon might not bring an impartial mind to his task.</p>
<p>At times, the unions’ lawyers were effusive in their praise of Heydon’s famous <a href="https://theconversation.com/bias-and-the-black-letter-judge-who-is-dyson-heydon-46341">independence of mind</a>, his integrity and his intellect. It was this latter attribute that the unions used to strengthen their argument.</p>
<p>The fair-minded lay observer, the unions argued, would find it hard to believe that such an intellectual powerhouse – somebody with a “mind like a steel trap” – would overlook the connection between the lecture and the Liberal Party, or would fail to notice the fundraising element of the event.</p>
<h2>The decision</h2>
<p>Heydon’s <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Pages/Hearings/2015/31-August-2015-Public-hearing.aspx">written reasons</a> for his decision are precise, detailed and often technical. </p>
<p>Rather than focusing on the general impression created by the situation – he criticises the unions’ arguments for being “imprecise” – Heydon takes each allegation put forward by the unions and follows it to its conclusion. </p>
<p>Heydon did not accept that merely agreeing to give the address could create an appearance of bias. Judges and royal commissioners are allowed to have political views. They are even allowed to air those views publicly. </p>
<p>Heydon downplayed the political nature of the royal commission. The unions are not synonymous with the Labor Party, he pointed out. Some union members even support the other side of politics. </p>
<p>Nor did Heydon accept that a fair-minded observer would think the lecture was a Liberal Party fundraiser. He points out that the A$80 per head charge is pretty reasonable for a three-course meal in Sydney. </p>
<p>Heydon repeated that he did not read the attachments setting out the detail of the event. In fact, he does not have a computer and it is “notorious among the legal profession” that he is “incapable of sending or receiving emails”.</p>
<h2>What happens next?</h2>
<p>The unions may take their case to court, seeking to have Heydon removed. The unions can choose to go either to the Federal Court or the High Court. Once again, the unions will be arguing that there is a reasonable apprehension of bias in Heydon continuing to hear the case.</p>
<p>The test for apprehended bias is one on which reasonable minds can differ and there are good arguments on both sides of this case. Therefore, the unions have some cause for optimism that they will succeed in the courts.</p>
<p>What if Heydon survives all legal challenges?</p>
<p>The government has always had the option of removing Heydon on its own initiative. Given its public support of Heydon this seems unlikely.</p>
<p>If, then, Heydon proceeds with the royal commission and hands down a final report, will the findings of the report be tainted? Legally, no; politically, maybe.</p>
<p>Let’s remember what royal commissions do. A royal commission investigates a problem assigned to it and reports to government with some findings and recommendations. A royal commission doesn’t actually implement any of these recommendations – that is up to the government.</p>
<p>The government might decide to leave the royal commission’s report on a shelf gathering dust. Or it might want to act on the commission’s findings. If it wants to do the latter, we can expect opponents of these actions to bolster their political opposition by arguing the findings were tainted by bias.</p>
<p>The legal standard for apprehended bias is not necessarily the same as a moral, ethical or political standard – all of which may, naturally, vary from person to person. The outcome of any legal challenge does not diminish the legitimacy of any person’s strongly held personal views on this issue.</p><img src="https://counter.theconversation.com/content/46346/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anna Olijnyk receives funding from ARC for a project not related to this issue. She is a member of the NTEU.</span></em></p>Dyson Heydon didn’t accept that merely agreeing to give the Sir Garfield Barwick lecture could create an appearance of bias. Judges and royal commissioners are allowed to have political views, he said.Anna Olijnyk, Lecturer, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/466292015-08-25T10:01:58Z2015-08-25T10:01:58ZYes, Mr Abbott, things are ‘a bit out of control’<blockquote>
<p>I think it is a bit out of control and I think it’s important … not just to talk about tighter management … but actually do it.</p>
</blockquote>
<p>Tony Abbott would have been absolutely right – if he had been speaking about the government rather than Monday’s Q&A program, when <a href="http://www.abc.net.au/news/2015-08-25/abc-boss-mark-scott-apologises-to-tony-abbott-over-qanda-tweet/6722874">an offensive tweet</a> referring to him got aired.</p>
<p>If Abbott and his colleagues had applied the same sharp focus to their own affairs in the last few months as they have to a TV program, they might be in better shape.</p>
<p><a href="http://www.theaustralian.com.au/opinion/columnists/newspoll-pm-helps-bill-shorten-make-light-work-of-his-troubles/story-fnmnl1y0-1227497160830">This week’s Newspoll</a> reinforced the familiar story. Labor retains a 54-46% two-party lead; the Coalition’s primary vote is down one point to 38%, one point behind Labor, steady on 39%.</p>
<p>The movements are in the leaders’ ratings. Satisfaction with Abbott was down three points to 30%; dissatisfaction went up two points to 63%. Bill Shorten’s satisfaction rose five points to 34%; dissatisfaction with him fell five to 52%. Shorten led Abbott as better prime minister 40% (up two points) to 35% (down three points).</p>
<p>Shorten is not charismatic; Labor still struggles to find a policy story. But the government’s hopes that the opposition leader would by this time be near dead from wounds inflicted by the union royal commission – and the ALP conference - have been disappointed.</p>
<p>Now we’re waiting to hear from the badly wounded commissioner, Dyson Heydon, who has delayed his statement about his future. Heydon is considering his position because he accepted an invitation to deliver a Liberal-sponsored lecture, from which he later withdrew.</p>
<p>For the second day running the commission issued a statement saying Heydon was not yet ready to make his announcement. “Commissioner Heydon is taking the time required to consider his decision. A further update will be provided in due course,” it said.</p>
<p>In dealing with the unions’ argument that he should stand down on the grounds of “apprehended bias”, Heydon has to consider what “a fair-minded lay observer might reasonably” think. <a href="essentialvision.com.au/category/essentialreport">Tuesday’s Essential poll</a> tells him what members of the public think: 38% believed there was a conflict of interest and he should step down; 25% said there was no conflict and he should continue.</p>
<p>Abbott said on Tuesday that regardless of what Heydon decides, “the royal commission must and will go on”. In the Essential polling, 39% thought the commission was a legitimate investigation of union practices, while 27% said it was a political attack on Labor and the unions.</p>
<p>Abbott this week is in the Torres Strait and Cape York spending time in Indigenous communities, with a number of ministers dropping in and some nice pictures for the TV. Meanwhile, things haven’t been going so well in the south.</p>
<p>Communications Minister Malcolm Turnbull on Monday <a href="http://www.abc.net.au/news/2015-08-24/nbn-cost-blows-out-by-up-to-15-billion-dollars/6720878">announced a blow out</a> in the cost of the NBN, from A$41 billion to between $46 billion and $56 billion – awkward, given all the Coalition had said about the Labor government’s version of the massive project. (By the way, Turnbull was on Q&A watch, ringing ABC managing director Mark Scott early Tuesday about the tweet; Scott texted an apology to Abbott.)</p>
<p>Treasurer Joe Hockey struck particularly heavy weather with his speech on the need for income tax cuts, the reception ranging from sceptical (where’s the money coming from?) to hostile (the head of an accountancy peak body declared Hockey was “caught in a cycle of restating the problems rather than rethinking the solutions”).</p>
<p>If any policy area needs some “tighter management” it must surely be tax reform. Lots of work is going on behind the scenes but publicly the messaging is just causing mounting frustration.</p>
<p>Also needing management is the same-sex marriage issue. Abbott has promised to come back to cabinet with details of a process to be followed.</p>
<p>Abbott committed the government to a people’s vote in a second term. It is expected this would be a plebiscite not a referendum.</p>
<p>The Essential polling indicates that Abbott has hit on a popular approach: 66% think there should be a national vote; 22% believe the question should be decided by parliament.</p>
<p>But the rub for Abbott is that only 11% think a national vote should be after the election, the only time he will contemplate. An overwhelming majority believe it should be either on the same day as the election (43%) or before (35%).</p>
<p>The public’s opinion on when the vote should be makes sense. It’s hard to avoid the conclusion that Abbott is basing his timing on what he thinks would give him the best chance of holding off change.</p>
<p>Early next month, the government passes the second anniversary of its election. Its record of positive achievements is much thinner than most who voted for it would have wanted. Its management style has been poor and often chaotic. </p>
<p>And – to Abbott’s notable frustration – Q&A hasn’t even shifted its location within the ABC bureaucracy yet.</p>
<p><strong>Postscript:</strong> Meanwhile, there has been a touch of reflection on Abbott from Rupert Murdoch who last week dined with Abbott and lunched with Scott Morrison. Murdoch has been reading When We Were Young and Foolish, the account by Greg Sheridan, Abbott’s friend, of their youths. “Tony Abbott always the happy warrior. Win or lose, usually win, and clever fighter,” tweeted Murdoch.</p>
<p><strong><a href="https://theconversation.com/politics-podcast-michael-mccormack-the-nationals-member-for-riverina-46406">Listen to the latest Politics with Michelle Grattan podcast with guest, Nationa;s MP Michael McCormack, here.</a></strong></p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/5g2tx-5825e5" width="100%" height="100" frameborder="0" scrolling="no"></iframe><img src="https://counter.theconversation.com/content/46629/count.gif" alt="The Conversation" width="1" height="1" />
I think it is a bit out of control and I think it’s important … not just to talk about tighter management … but actually do it. Tony Abbott would have been absolutely right – if he had been speaking about…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/463412015-08-21T03:10:39Z2015-08-21T03:10:39ZBias and the ‘black-letter’ judge: who is Dyson Heydon?<figure><img src="https://images.theconversation.com/files/92640/original/image-20150820-7235-6wwkx2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dyson Heydon prided himself throughout his judicial career on the robust independence and intellectual integrity he brought to the role.</span> <span class="attribution"><span class="source">AAP/Renee Nowytarger</span></span></figcaption></figure><p>After a <a href="http://www.theguardian.com/australia-news/live/2015/aug/21/dyson-heydon-hears-requests-to-withdraw-from-trade-union-royal-commission-live-updates?CMP=soc_568">hearing</a> on Friday, Dyson Heydon AC QC has reserved his decision on whether he will stand down as the royal commissioner investigating trade union corruption. Heydon, a former High Court justice, has faced <a href="http://www.news.com.au/national/politics/actu-will-seek-to-have-unions-royal-commissioner-dyson-heydon-disqualified/story-fns0jze1-1227490063917">calls</a> to step down following <a href="http://www.theaustralian.com.au/national-affairs/unions-royal-commissioner-dyson-heydon-to-address-libs-fundraiser/story-fn59niix-1227481617892">revelations</a> that he had accepted, and then withdrew from, an invitation to speak at a Liberal Party fundraiser.</p>
<p>Throughout his judicial career Heydon strongly advocated that judges should take a more restrained approach – a “black-letter” approach – to their role. He argued that only a black-letter approach could foster public confidence in the independence of the justice system. </p>
<p>So how has a former judge with an avowed commitment to judicial independence and probity found himself at the centre of a very public controversy over his own impartiality?</p>
<h2>Heydon’s judicial philosophy</h2>
<p>The Howard government appointed Heydon to the High Court in 2003 following a <a href="http://www.mrlegal.com.au/mrhomepage.nsf/da1fe4c2dda549bd48257afc00091ad9/c96b1123eb3f46a94825725d0035d35a/$FILE/Judicial%20Activism%20and%20the%20Death%20of%20the%20Rule%20of%20Law%20-%20Dyson%20Heydon%20-%20Quadrant%20Magazine.doc">speech</a> that was billed as his <a href="http://www.justinian.com.au/archive/the-dicing-of-heydons-job-application.html">“job application”</a> for the upcoming vacancy. In it, he set out his vision for the ideal judge. The judge should interpret the law “according to the books” and do so “incorruptibly”. </p>
<p>A core element of the rule of law, Heydon explained, was “an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures”, who must possess:</p>
<blockquote>
<p>… a measure of independence from the wrath of disgruntled governments or other groups.</p>
</blockquote>
<p>In this speech, Heydon called out the antithesis of the black-letter judge: the “activist” judge. The activist judge decides cases not by reference to established legal principles, but to further “some political, moral or social programme”. The activist judge uses cases to right social wrongs in accordance with the individual judge’s worldview. </p>
<p>Heydon’s activist judge is thus one engaged in activities that are political in nature. Fundamentally, for Heydon, the activist judge undermines public confidence in the whole legal system and opens the court to public attack.</p>
<p>In contrast, Heydon’s black-letter judge, he explained in his speech, contributes to justice in both its reality and perception. Such a judge must possess two characteristics:</p>
<blockquote>
<p>One is a firm grip on the applicable law. The other is total probity.</p>
</blockquote>
<h2>Heydon as a black-letter judge</h2>
<p>There is no doubt that Heydon was and is a brilliant legal mind, with a very firm grip on the applicable law. His distinguished legal and judicial career is credit to that. </p>
<p>Heydon’s legal brilliance did not guarantee, however, that he was influential while on the High Court. His approach was increasingly out of step with the court’s other members, particularly in the areas of implied rights and limits on government power, which he was reluctant to extend. His dissent rates would eventually earn him the moniker the <a href="http://www.smh.com.au/federal-politics/political-opinion/new-great-dissenter-takes-kirbys-place-in-high-court-battlefield-20120216-1tc0c.html">“Great Dissenter”</a>, and his frustration became increasingly evident in the tone of his judgments.</p>
<p>As a judge, Heydon also exhibited a particularly visible form of independence. Constitutional law academics Andrew Lynch and George Williams have <a href="http://newsroom.unsw.edu.au/news/law/new-great-dissenter">referred to this</a> as his pronounced “individualism”. By 2012, the year prior to his retirement, Heydon wrote every one of his judgments alone, even when he joined the result of the other justices.</p>
<p>Also in 2012, Heydon delivered <a href="http://www.innertemple.org.uk/downloads/members/lectures_2012/lecture_dyson.pdf">another speech</a> that caused a stir in the legal profession. It went part of the way to explaining his individualism. He referred to what he thought was one of the most dangerous threats to judicial independence: the pressure on judges to participate in joint judgments and the elevation of consensus as a value over individual intellectual integrity.</p>
<h2>Apprehended bias and black-letter law’s shortcomings</h2>
<p>There is a degree of sad irony that, as royal commissioner, Heydon has found himself steeped in controversy alleged to be undermining public confidence in the integrity of the justice system. Heydon prided himself throughout his judicial career – and rightly so – on the robust independence and intellectual integrity he brought to the role.</p>
<p>It is important to be clear that the claim made against Heydon is one of apprehended bias only. The <a href="https://theconversation.com/explainer-dyson-heydon-and-claims-of-apprehended-bias-46202">test for apprehended bias</a> is whether a “fair-minded lay observer” might reasonably apprehend that Heydon’s impartiality has been compromised by his conduct. </p>
<p>It might <a href="http://www.abc.net.au/news/2015-08-20/barns-when-judges-are-seen-as-judging-themselves/6711574">seem incongruous</a> for a member of the general public to understand why Heydon is being asked to apply the test to himself. There is a whiff of apprehended bias in the very idea. </p>
<p>It is true that this practice accords with the <a href="http://www.abc.net.au/news/2015-08-19/dyson-heydon-nicholas-cowdery-royal-commission/6709968">ordinary legal process</a> for apprehended bias claims. A person against whom an apprehended bias claim is made is expected to apply the test objectively by reference to the standards of the fair-minded lay observer. According to a traditional black-letter approach, the individual’s personal feelings will simply not enter the decision.</p>
<p>But can, as Heydon has argued throughout his judicial career, legal tests really be objectively applied by reference only to the law in the books – and unaffected, consciously or subconsciously, by the individual judges’ background, interest, values and morals? This question has given rise to some of the great ongoing debates of legal philosophy.</p>
<p><a href="http://psp.sagepub.com/content/28/3/369.short">Psychological research</a> found that we all suffer from what is known as the “bias blind spot”. This is the illusion that we all tend to be confident that our own decisions are made objectively and rationally, but happily infer that others suffer from bias when making their decisions. </p>
<p>None of this is an intentional misassessment of bias. But it may go some way to demonstrating the shortcomings of adhering to the view that legal tests can be applied with absolute objectivity.</p>
<p>It is likely that Heydon feels greatly pained by the application for his resignation for apprehended bias. He spent his entire judicial career crafting a judicial philosophy of the judge whose intellect, integrity and fidelity to the law would maintain the public’s confidence in the justice system and the rule of law. The application for Heydon’s recusal has underlined questions about the limitations of black-letter judging.</p><img src="https://counter.theconversation.com/content/46341/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council. She is a member of the National Tertiary Education Union.</span></em></p><p class="fine-print"><em><span>Heather Roberts does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How has a former judge with an avowed commitment to judicial independence and probity found himself at the centre of a very public controversy over his own impartiality?Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyHeather Roberts, Lecturer, ANU College of Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/462022015-08-17T23:11:45Z2015-08-17T23:11:45ZExplainer: Dyson Heydon and claims of ‘apprehended bias’<figure><img src="https://images.theconversation.com/files/92090/original/image-20150817-5124-1oz3oub.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dyson Heydon is facing a push to remove him as royal commissioner investigating trade union corruption.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Following the revelation that former High Court judge Dyson Heydon – the royal commissioner investigating corruption in trade unions – agreed to speak at a Liberal Party function, unions are considering <a href="http://www.smh.com.au/federal-politics/political-news/heydon-hangs-on-as-pressure-builds-and-questions-mount-over-political-links-20150814-gizbys.html">legal action</a> to force Heydon’s removal on the ground of “apprehended bias”. </p>
<p>What, exactly, is “apprehended bias”? Do the unions have a good case? </p>
<h2>What is apprehended bias?</h2>
<p>There is a <a href="http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/KB/1923/1.html&query=%22sussex+and+justices%22&method=boolean">legal axiom</a> that:</p>
<blockquote>
<p>… justice should not only be done, but should manifestly and undoubtedly be seen to be done. </p>
</blockquote>
<p>This means that judges and other officials – such as tribunal members and royal commissioners – must not only be impartial, but must also appear to be impartial. The rule helps preserve public confidence in the integrity of the justice system. </p>
<p>It is not alleged that Heydon is actually biased. Rather, it is alleged that his connections to the Liberal Party have created the appearance that he is biased. </p>
<p>Since the Abbott government <a href="https://theconversation.com/royal-commission-gets-broad-brief-to-crack-union-corruption-23039">established the royal commission</a> in 2014, it has been surrounded by <a href="http://www.smh.com.au/federal-politics/political-news/royal-commission-into-union-corruption-confirmed-20140208-329dr.html">allegations</a> that it is a politically motivated stunt directed at the unions and the ALP. </p>
<p>The unions might argue that Heydon’s conduct has created an appearance that he is politically close to the Liberal Party and therefore might make findings adverse to the unions in order to strike a political blow for the Liberal Party.</p>
<h2>What’s the legal standard for apprehended bias?</h2>
<p>The <a href="http://www.judcom.nsw.gov.au/publications/benchbks/civil/disqualification_for_bias.html">legal test</a> for apprehended bias in this case is whether a “fair-minded lay observer” might reasonably apprehend that Heydon might not bring an impartial mind to his task as royal commissioner.</p>
<p>The “fair-minded lay observer” is not a real person. He or she is a fictional person invented by the courts to help work out whether apprehended bias exists in any given situation. </p>
<p>This fictional person is a layman, rather than a lawyer, so they need not understand legal technicalities. But the fair-minded lay observer’s opinion is not necessarily the same as mainstream public opinion. He or she is assumed to have a detailed knowledge of the situation – usually more detailed than appears from media reports – and is slow to jump to conclusions.</p>
<p>Apprehended bias can arise in many situations. There might be apprehended bias where, for example:</p>
<ul>
<li><p>a judge is openly hostile to one of the parties to a court case; </p></li>
<li><p>a government official holds shares in a mining company to which the official grants a mining licence; or </p></li>
<li><p>a decision-maker’s public statements suggest they have already made up their mind before considering a case in full. </p></li>
</ul>
<p>This is not the first time a commissioner has faced allegations of apprehended bias. A Queensland Commission of Inquiry into the actions of Jayant Patel at Bundaberg Hospital was derailed in 2005 after a court <a href="http://www.austlii.edu.au/au/cases/qld/QSC/2005/243.html">found</a> that the conduct of the commissioner, Tony Morris, QC, created an appearance of bias.</p>
<p>Morris had displayed great sympathy for witnesses giving evidence against Patel and hostility towards hospital administrators. This created the impression he had prejudged the outcome of the inquiry. </p>
<h2>Would a claim of apprehended bias against Heydon succeed?</h2>
<p>Whether Heydon’s conduct amounts to apprehended bias will depend on a close examination of case’s circumstances. </p>
<p>The unions might seek to draw an analogy with a well-known <a href="http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1999/1.html&query=pinochet&method=boolean">English case</a> involving Chilean dictator Augusto Pinochet. Pinochet’s extradition was overturned because one of the judges who had ordered extradition was linked to Amnesty International – a body that had campaigned for Pinochet’s extradition and was involved in the case. </p>
<p>On the face of things, that Heydon was prepared to accept an engagement to speak at a Liberal Party function certainly looks bad. But the fair-minded lay observer would look closer. He or she would keep in mind, for example, that it is common for retired High Court judges (such as Heydon) to accept public speaking engagements for various organisations.</p>
<p>Significant, too, would be Heydon claiming he was unaware that the event was a Liberal Party fundraiser, and his withdrawal from the engagement. The detail of these circumstances is <a href="https://theconversation.com/heydons-email-trail-for-barwick-dinner-made-its-liberal-connections-clear-from-the-start-46211">gradually being revealed</a>.</p>
<p>The unions might try to build up a bigger picture of Heydon’s links to the Liberal Party. The Howard government appointed Heydon to the High Court, but if that created an appearance of bias, judges would regularly be disqualified from cases involving governments.</p>
<p>Then there’s Heydon’s <a href="http://www.abc.net.au/news/2015-08-17/dyson-heydon-on-panel-approved-tony-abbott-rhodes-scholarship/6703188">membership</a> of the selection committee that awarded Prime Minister Tony Abbott a Rhodes Scholarship. But, such a fleeting association more than 30 years ago hardly amounts to a close relationship. More promising material for the unions might be Heydon’s <a href="http://www.afr.com/news/politics/evasive-bill-shorten-rebuked-by-royal-commissioner-dyson-heydon-20150709-gi8suf">controversial intervention</a> in the evidence of Opposition Leader Bill Shorten before the royal commission in July. </p>
<p>The outcome of any case will depend on the detail of the case mounted by both sides. On the available facts it is possible that Heydon’s position would not breach the legal rule against apprehended bias. </p>
<p>Whether Heydon’s actions and those of the government that appointed him were prudent or popular is a separate question.</p><img src="https://counter.theconversation.com/content/46202/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anna Olijnyk receives funding from the ARC for topics not directly related to this article. She is a member of the NTEU.</span></em></p>Judges and other officials – such as tribunal members and royal commissioners – must not only be impartial, they must also appear to be impartial.Anna Olijnyk, Lecturer, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/462112015-08-17T11:55:14Z2015-08-17T11:55:14ZHeydon’s email trail for Barwick dinner made its Liberal connections clear from the start<p>In the jargon of the moment, Dyson Heydon – the royal commissioner who has been putting trade union officials and Opposition Leader Bill Shorten on the spot – finds himself struggling with the sniff test.</p>
<p>Heydon on Monday released the email trail of the invitation he received to deliver the Garfield Barwick address, and made a statement at the commission. But the correspondence harmed more than assisted his defence of his now-abandoned intention to give the lecture, which is sponsored by the Liberal Party’s lawyers’ branches.</p>
<p>The crux of Heydon’s argument against a barrage of criticism is that he “overlooked” the matter of sponsorship and timing.</p>
<p>The story starts when, after some informal discussions “several years ago”, he was invited in April last year to give the lecture in August this year. An email from Gregory Burton, the chair of one of the lawyers’ branches of the NSW Liberal Party, thanked Heydon for his indication that he would be amenable to delivering the lecture “if the commission has completed”.</p>
<p>Burton made the position clear. “Although we are formally a branch of the party, our aim is to be a liberal-minded "bridge” to the profession rather than overtly party political (although we trust we show the party in a favourable light!),“ he wrote.</p>
<p>Heydon confirmed to Burton – whom he has known very well for years – that he could deliver the address.</p>
<p>In his Monday statement, Heydon noted that at that time the commission was due to finish at the end of 2014. Nor did he think the function was a Liberal Party fundraiser – which on any ordinary meaning it was not, because the charge to attendees covers little more than costs.</p>
<p>In March this year, when Heydon was at Oxford, there was correspondence about dates and topic.</p>
<p>Heydon told the commission on Monday: "I receive many invitations to speak at public functions. When I received the contact by email from the coordinator, I remembered that I had agreed to give the Garfield Barwick address in August 2015.</p>
<p>"However, in March 2015, I overlooked the connection between the person or persons organising the event and the Liberal Party which had been stated in the email of 10 April 2014.</p>
<p>"I also overlooked the fact that my agreement to speak at that time had been conditional on the work of the commission being completed before that time.” The reporting date had been extended in October 2014 to the end of this year.</p>
<p>April saw more correspondence about the date and subject. Heydon said he had entered the event in his diary.</p>
<p>In June, Heydon was sent the invitation for guests – it was complete with Liberal logo, a request for a donation from those not able to attend, and the information that proceeds would be applied to state election campaigning.</p>
<p>Heydon said this, amounting to three pages, was attached to the one-page email. </p>
<p>The email, from Burton, had the subject line: “FW: Liberal Party of Australia (NSW Division) – Lawyers’ Branch and Legal Policy Branch”.</p>
<p>“My personal assistant printed out a copy of the email and the attachments and provided them to me.</p>
<p>"I glanced through the email noting the date, time and place of the dinner. I did not read the attachments.”</p>
<p>Heydon started preparing some rough notes for his speech.</p>
<p>On August 12, Heydon was sent another email, which also enclosed the invitation “for your reference”.</p>
<p>Burton wrote: “As you know, although nominally under the auspices of the Liberal Party lawyers’ professional branches, this is not a fundraiser…”</p>
<p>“In the absence of hearing from you we have proceeded on the basis you are happy to go ahead even though the commission is still in hearing (not expected when originally arranged) and thought it presumptuous to do other than leave that up to you. If however a problem emerges at the last moment then people will I’m sure understand.”</p>
<p>It was almost as though Burton was giving a warning – did the commissioner know what he was doing?</p>
<p>The following morning at 9.23 – and, Heydon says, before media inquiries – the commissioner’s assistant sent an email to Burton saying: “If there is any possibility that the event could be described as a Liberal Party event he will be unable to give the address.”</p>
<p>Meanwhile, just after this, Fairfax published a story about Hayden’s delivering the lecture.</p>
<p>“Soon after the dispatch of that email, it was made plain that I would not be giving the address. My understanding at all times has been that the dinner was not to be a fundraiser.”</p>
<p>All through, Heydon was fully informed about the Liberal connections of the function, as his commenting about understanding “at all times” that it was not a fundraiser reinforces.</p>
<p>That, in March, Heydon “overlooked” both the Liberal connections and that the commission would still be going would be more excusable if he hadn’t been holding a string of witnesses – including two Labor leaders – to account on details that stretch back many years.</p>
<p>And as for not reading the attachments in June, it was quickly pointed out that such an excuse hasn’t washed when used in the royal commission.</p>
<p>One would have thought Heydon would have remembered, albeit vaguely, from the early correspondence that the lecture was Liberal-sponsored, and then would have applied abundant caution and examined the details. He is supposed to be a stickler for detail; he has had a career of experience in the importance of the appearance of neutrality.</p>
<p>The idea that somehow the NSW Liberals are to blame for inviting Heydon seems to me ludicrous. He is a former High Court judge – he should not have needed to be saved from himself.</p>
<p>Now the situation is a shambles. The ACTU is deciding whether to apply for Heydon’s disqualification from the commission on the ground of “apprehended bias”. If it does, he would hear the matter on Friday. The issue could end up in the Federal Court.</p>
<p>Heydon set out the doctrine of apprehended bias several years ago. In the joint judgment of Justices Heydon, Kiefel and Bell, in British American Tobacco Australia Services Limited v Laurie in 2011, their honours said:</p>
<blockquote>
<p>It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned.</p>
</blockquote>
<p>If he remains commissioner, Heydon’s findings will carry a heavy discount factor. That will particularly apply to anything in the political arena, notably about Shorten.</p>
<p>If Heydon quits or is forced out, the government either tries to patch up the commission or lets it lapse.</p>
<p>While it could continue under another commissioner, that would mean rehearing controversial evidence, because those receiving adverse findings could argue against them on the grounds they were based on hearings before the first commissioner but delivered by his replacement.</p>
<p><strong><a href="https://theconversation.com/politics-podcast-clare-oneil-and-the-future-of-progressive-politics-in-australia-46208">Listen to the latest Politics with Michelle Grattan podcast with guest, Clare O'Neil, talking about her new book Two Futures.</a></strong></p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/3gsrk-580f97?from=wp" data-link="http://www.podbean.com/media/player/3gsrk-580f97?from=wp" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/46211/count.gif" alt="The Conversation" width="1" height="1" />
In the jargon of the moment, Dyson Heydon – the royal commissioner who has been putting trade union officials and Opposition Leader Bill Shorten on the spot – finds himself struggling with the sniff test…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/461012015-08-13T20:30:08Z2015-08-13T20:30:08ZGrattan on Friday: Royal commissioner finds it is not just witnesses that can have a credibility problem<p>Bill Shorten must have been born under some particularly fortunate star.</p>
<p>In yet another week when “good government” was holidaying, the Coalition prolonged its <a href="https://theconversation.com/cabinet-ministers-brawl-over-same-sex-marriage-popular-vote-46086">agony over same-sex marriage</a>, and royal commissioner Dyson Heydon <a href="http://www.abc.net.au/news/2015-08-13/dyson-heydon-liberal-party-fundraiser-speaker/6694170">helpfully handed Labor ammunition</a> for its well-established campaign against his inquiry into trade union corruption.</p>
<p>The big, much-anticipated policy announcement of the week – <a href="https://theconversation.com/abbott-says-australias-climate-target-is-economically-responsible-45954">release of Australia’s targets</a> for reducing carbon emissions after 2020 – disappeared from sight.</p>
<p>If anyone wanted a cameo of chaos, they had only to look at the five-and-a-half hours it took Coalition MPs to decide to stand firm against a conscience vote on same-sex marriage, followed by open conflict between senior ministers about what comes next.</p>
<p>Abbott and his conservative warriors held the line but they are now operating on scorched earth, as he proposes some form of popular vote next term.</p>
<p>Social Services Minister Scott Morrison’s clever little ploy to hold a constitutional referendum – that would surely be defeated, thus preserving the status quo – has been trenchantly attacked by Attorney-General George Brandis.</p>
<p>The strength with which Brandis pushed back was surprising. Although you wouldn’t know it these days, Brandis used to be a prominent moderate, as was fellow cabinet minister Christopher Pyne. Pyne was also unexpectedly outspoken this week, furious about Abbott bringing in the Nationals to bolster his numbers.</p>
<p>As Brandis and Pyne suddenly found their independent voices Malcolm Turnbull, who never lost his, suggested an option to settle the same-sex marriage issue ASAP, via legislation that would take effect after a yes vote at a plebiscite, held preferably before the election. Don’t hold your breath for that one.</p>
<p>Friends and enemies, watching his mood carefully, report that this week’s events have left Turnbull very agitated; he will only be encouraged to freelance even more.</p>
<p>When the cabinet eventually discusses the popular vote process, Abbott could face a good deal of tough talk from his colleagues.</p>
<p>Apart from the ministerial divisions, a number of Liberals are <a href="http://www.smh.com.au/federal-politics/political-news/samesex-marriage-teresa-gambaro-the-third-government-mp-to-defy-tony-abbott-20150813-giy4i7.html">threatening</a> to cross the floor if the opportunity arises, and various tactics will be deployed in the parliament.</p>
<p>The public, mostly wanting the issue fixed, won’t get their wish any time soon.</p>
<p>Same-sex marriage had been a grenade-in-waiting for the Coalition. Labor’s stroke of luck over Heydon came from nowhere.</p>
<p>Shorten, who from the start condemned the commission as a political exercise by Abbott, had a difficult two days there in July, during which Heydon said he was concerned about the opposition leader’s “credibility as a witness”. Shorten later said of Heydon: “He has a job to do, I get that, it’s Tony Abbott’s royal commission”.</p>
<p>Now Heydon’s own credibility has been brought into question, after it was revealed that he was to deliver later this month the Sir Garfield Barwick Address, organised by the NSW Liberal Party’s lawyers branch and legal policy branch.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=525&fit=crop&dpr=1 754w, https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=525&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/91765/original/image-20150813-21421-1vbi33m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=525&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Much of the row that is raging revolves around whether this is a “fundraiser”. The invitation to the event, with a Liberal logo, had an $80 cost for tickets, sought a donation from those unable to attend, and said that all proceeds would be applied to state election campaigning.</p>
<p>Soon after a Fairfax Media story on Thursday morning about his planned attendance, a statement was issued on Heydon’s behalf saying he had withdrawn.</p>
<p>“As early as 9.23 this morning, and prior to any media enquiry being received, he advised the organisers that ‘if there was any possibility that the event could be described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of royal commissioner’,” the statement said.</p>
<p>In correspondence released later by Heydon, the event’s organiser, Gregory Burton, had written to him on Wednesday saying that while “nominally under the auspices of the Liberal Party lawyers’ professional branches, this is not a fundraiser”. The charge was to cover costs – “although of course people will disclose it if they go over the state donation limit”.</p>
<p>The email also said: “In the absence of hearing from you we have proceeded on the basis you are happy to go ahead even though the commission is still in hearing (not expected when originally arranged) … If however a problem emerges at the last moment then people will I’m sure understand”.</p>
<p>The “problem” that emerged was dramatic.</p>
<p>The government strongly defended Heydon but fluffed its lines on whether this was or was not “a fundraiser”.</p>
<p>By the end of Thursday, the meticulous NSW Liberal director Tony Nutt had totted up the likely costs and receipts, concluding the function would have raised “a couple of hundred dollars”.</p>
<p>“There was no business, professional or corporate sponsorship or underwriting provided for the event,” Nutt said in the second of two statements he issued during the day. “The suggestion that a memorial lecture run on this basis constitutes a significant fundraiser is ridiculous.”</p>
<p>Clearly Heydon should not have been planning to be part of a Liberal-sponsored function while he is royal commissioner, even if the lecture cannot be equated with what we usually understand as “fundraisers”.</p>
<p>Heydon may have got into this situation through inadvertence, given the nature of the address, last delivered by former chief justice Murray Gleeson, the fact that the invitation went back years, and the longer-than-expected time the commission is taking.</p>
<p>But perception, circumstances and political imperatives are central. Heydon tangled with Shorten, and now Shorten – under pressure from the commission over events from his union past – finds he can give back in spades. Labor is threatening to go to court if Heydon does not resign.</p>
<p>Heydon’s bad judgement over this event – held to honour the chief justice who advised governor-general John Kerr on the sacking of Gough Whitlam – will help Shorten counter whatever negatives come from the commission.</p>
<p><strong><a href="https://theconversation.com/politics-podcast-chris-bowen-45897">Listen to the latest Politics with Michelle Grattan podcast with guest, shadow treasurer Chris Bowen, here or on iTunes.</a></strong></p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/z26kd-57ebb6" width="100%" height="100" frameborder="0" scrolling="no"></iframe><img src="https://counter.theconversation.com/content/46101/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bill Shorten must have been born under some particularly fortunate star.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/445842015-07-15T04:40:28Z2015-07-15T04:40:28ZIf Abbott’s finger is on election trigger, risk of misfire remains high<figure><img src="https://images.theconversation.com/files/88305/original/image-20150714-11801-1w28qfy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Never before has Australia had a situation where the leaders of both major parties are so little liked.</span> <span class="attribution"><span class="source">AAP/James Alcock</span></span></figcaption></figure><blockquote>
<p>Laws are like sausages: it is better not to see them being made.</p>
</blockquote>
<p>There may be argument about whether or not this epigram originated with <a href="http://www.washingtonpost.com/wp-dyn/content/article/2005/04/16/AR2005041600154.html">Otto von Bismarck</a>. But what is not in doubt is that it has never been bettered as a description of the political process.</p>
<p>Its application to Opposition Leader Bill Shorten’s <a href="http://www.theage.com.au/federal-politics/political-news/bill-shorten-bruised-but-trade-unions-royal-commission-yet-to-reveal-a-smoking-gun-20150708-gi7twt.html">appearance</a> before the trade union royal commission is especially apt. Shorten is not the first Australian politician to have been tardy about declaring a political donation, nor is he Robinson Crusoe when it comes to campaign funding and conflicts of interest.</p>
<p>Rarely, though, are the unsavoury facts of politics on show for all to see as they were in Sydney last week.</p>
<p>That makes Shorten’s performance under cross-examination more damaging than if the record had been corrected in the usual manner, quietly and without immediate scrutiny. The Abbott government certainly seems to think so. Why else would it be <a href="http://www.afr.com/news/politics/tony-abbott-lines-up-doubledissolution-election-over-workplace-relations-20150712-giagki">reportedly contemplating</a> a double dissolution election when it remains behind in the polls?</p>
<h2>Seizing on Shorten’s woes</h2>
<p>Whether or not Prime Minister Tony Abbott proceeds to an early election, a Labor vote against two reintroduced bills on union corruption would reinforce the suspicions about Shorten that were amplified at the royal commission. Abbott does already hold one trigger for a double dissolution election, but the failed attempt to abolish the Clean Energy Finance Corporation is hardly one to build a campaign on.</p>
<p>If Shorten’s stumbling over his union past were to be the catalyst for an improvement in the Coalition’s polling numbers, so much the better. Abbott would then have more convincing triggers for a double dissolution election even if the consequence was an even more unmanageable Senate than the current motley crew of crossbenchers.</p>
<p>Analysts are deeply divided – even more so than normal – on the impact of Shorten’s appearance at the royal commission. The Courier-Mail’s Dennis Atkins <a href="http://www.pressreader.com/australia/the-courier-mail/20150710/282071980573191/TextView">declared</a> that while Shorten took a significant hit, there was no smoking gun and that he would survive as opposition leader. Laurie Oakes, by contrast, <a href="http://www.news.com.au/national/opposition-leader-bill-shorten-must-face-the-facts-on-his-role/story-e6frfkp9-1227437412343">wrote</a> that Shorten should think about stepping down.</p>
<p>The disagreement about the broader long-term implications of Shorten’s performance is a reflection of the novelty of Australia’s current political predicament. Never before has Australia had a situation where the leaders of both major parties are so little liked, <a href="http://www.smh.com.au/federal-politics/political-opinion/no-worming-their-way-out-of-it-voters-hate-abbott-and-shorten-20150520-gh5y6s.html">if not loathed</a>; where the polls have suggested for so long that this will be a one-term government; where the Coalition’s vote in its strongholds of Queensland and Western Australia has dived so deeply.</p>
<p>These novel variables make predictions even more difficult than in the past.</p>
<p>Ever since his brush with <a href="https://theconversation.com/abbott-left-deeply-wounded-by-narrow-victory-37339">political death</a> at the beginning of the year, Abbott has been struggling to come up with a formula to win public confidence. None of it has worked – not even frightening the living daylights out of the voters over <a href="https://theconversation.com/abbotts-stoking-of-terrorist-fears-may-be-a-political-sideshow-37641">national security</a> or trying to wedge Labor as being <a href="http://www.afr.com/news/politics/pm-seizes-on-labor-terror-division-20150619-ghsak9">“soft on terror”</a>.</p>
<p>Maybe Shorten’s unconvincing royal commission performance will do the trick. It could enable the Coalition to handcuff Labor to trade union corruption without the annoying problems that any substantive discussion of industrial relations reform entails.</p>
<p>That way lies the ghost of <a href="http://www.findlaw.com.au/faqs/1916/what-was-workchoices-and-why-was-it-so-unpopular.aspx">WorkChoices</a>. This was such a disaster for the Coalition that Abbott simply refuses to countenance any substantive discussion of workplace reform, even as employers howl about <a href="http://www.theaustralian.com.au/national-affairs/industrial-relations/retail-penalty-rate-cut-would-create-40000-jobs-submission/story-fn59noo3-1227439179824">penalty rates</a>.</p>
<h2>The polls</h2>
<p>Abbott’s leadership ratings and his standing as preferred prime minister have improved since the beginning of the year, but only to the point where he is roughly at level pegging with Shorten. Shorten’s standing is hardly anything to write home about either.</p>
<p>State by state and seat by seat, the picture is much worse for Abbott and the Coalition. Using <a href="http://blogs.crikey.com.au/pollbludger/">Poll Bludger’s</a> weighted aggregate of all the significant polls, Labor was <a href="http://blogs.crikey.com.au/pollbludger/2015/07/09/bludgertrack-52-2-47-8-to-labor-4/">sitting at 52.2%</a> nationwide on a two-party-preferred basis at the end of June, with the Coalition on 47.8%.</p>
<p>The slide in the Coalition’s support is only being contained in New South Wales and Tasmania. In Tasmania, the opposition would recover none of the seats lost at the last election. In NSW, the Coalition vote is down 3.5%, but Labor could only be confident of regaining three seats – five at most.</p>
<p>However, that is the end of the good news for Abbott. In the southern states of Victoria and South Australia – traditionally happy hunting grounds for Labor – the Coalition is well and truly on the nose. Labor would pick up two seats in South Australia, and three in Victoria.</p>
<p>In Queensland and Western Australia, the gloss is well and truly off the Coalition. In the 2013 election, these two states guaranteed it victory. But in WA today, Coalition support has slumped more than seven points. In Queensland, the figure is 6.9%. According to the polls, Labor could recover all eight Queensland seats lost to the Coalition in 2013. In WA, a couple of Coalition seats are at risk.</p>
<p>All in all, the polls suggest Labor could currently pick up 22 seats – enough to give it a narrow majority of 77 in the House of Representatives. However, party number crunchers think that some first-term Coalition MPs in Queensland are more firmly entrenched than the poll numbers suggest.</p>
<p>A double dissolution election would render the Senate even more unworkable with the likelihood of several more microparty crossbenchers. That should be a significant factor in Abbott’s thinking.</p>
<p>The mere presence of a couple more double dissolution triggers may help keep Labor off balance. However, the risks attached to going the next step and having a double dissolution election ought to be enough to convince Abbott to keep his powder dry for the time being.</p><img src="https://counter.theconversation.com/content/44584/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jim Middleton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Tony Abbott’s leadership ratings and his standing as preferred prime minister have improved, but only to the point where he is roughly at level pegging with Bill Shorten.Jim Middleton, Vice Chancellor's Fellow, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/445132015-07-10T01:56:34Z2015-07-10T01:56:34ZVIDEO: Michelle Grattan on Bill Shorten<figure>
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<p>University of Canberra Acting Vice-Chancellor Nicholas Klomp and Michelle Grattan discuss the week in politics including Labor leader Bill Shorten’s appearance at the trade union royal commission and what it will mean for his future, uncertainty over Malcolm Turnbull’s appearance on Q&A and the federal government’s approval for a controversial Chinese coal mine in Barnaby Joyce’s electorate.</p><img src="https://counter.theconversation.com/content/44513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>University of Canberra Acting Vice-Chancellor Nicholas Klomp and Michelle Grattan discuss the week in politics.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/444692015-07-09T20:07:15Z2015-07-09T20:07:15ZGrattan on Friday: Abbott’s lucky to have a damaged Shorten<p>Bill Shorten’s appearance at the royal commission into union corruption has not only damaged him but diverted a good deal of attention from the signs of serious division and tension at senior levels of the Abbott government.</p>
<p>To go to the latter first: the week saw Agriculture Minister and Nationals deputy leader Barnaby Joyce explode with anger after a Chinese coal-mining project in his New England electorate was approved; Communications Minister Malcolm Turnbull none-too-subtly call out Tony Abbott’s hyperbole on Islamic State; and both Turnbull and Joyce furious about Abbott’s ban on ministers appearing on Q&A (which some hope might be lifted now the ABC has released tough terms of reference for the inquiry into the program).</p>
<p>The decision on the Shenhua mine rested with Environment Minister Greg Hunt, not the cabinet, which may have given Joyce the feeling of greater licence to denounce it. Even so, his language was distinctly un-ministerial. “I think it is ridiculous that you would have a major mine in the midst of Australia’s best agricultural land,” he said on Facebook. </p>
<p>Joyce’s office maintains his failure to make an expected joint appearance with Abbott in Grafton was a genuine scheduling problem – given his mood, it might have been a good thing he wasn’t there.</p>
<p>To add to Joyce’s angst, former independent member for New England Tony Windsor is making noises about possibly recontesting the seat. Even the threat is enough to raise Joyce’s blood pressure dangerously.</p>
<p>Joyce seethes publicly; Turnbull brings more calculation. Joyce confronts; Turnbull provokes. Tuesday’s <a href="https://theconversation.com/dont-overestimate-islamic-state-threat-turnbull-44385">speech</a> to the Sydney Institute was a repudiation of how Abbott has handled much of the national security debate – never mind that Turnbull insisted they were on the same page. </p>
<p>Don’t overestimate the IS threat was one Turnbull message, when Abbott says it’s coming for everyone. Remember that people equally committed to defeating terrorism can differ about appropriate measures, Turnbull said, when Abbott casts any disagreement as laying out the red carpet for terrorists. And there was a lot more.</p>
<p>Discontents are rife in the higher reaches of the government, but it is Shorten, not Abbott, who is currently under immense pressure.</p>
<p>Shorten emerged from two days at the royal commission with wounds that are not mortal for his leadership but serious enough to set it back particularly when, despite Labor being in front in the polls, he has not been doing well personally. The revelation he failed to declare that a company which had an enterprise bargaining agreement with his Australian Workers Union (AWU) had financed his campaign director for the 2007 election looked bad.</p>
<p>It’s true that many politicians make mistakes and have to update declarations. But in this case it appears worse because the man was employed by the company, and then by the union, so making the situation less transparent; the EBA relationship could be seen as a conflict of interest; and Shorten made the disclosure only in the last few days. This timing left him open to the claim that he acted when he knew the matter would become an issue at the commission.</p>
<p>The commission heard a lot about the AWU receiving side payments from companies with which it had EBAs. The general accusation was that workers got less than they should because of the cosy relationships between employers and the AWU, which yielded payoffs and more members for the union. Shorten rejected conflict-of-interest allegations, maintaining he and the union did their best for the workers, though sometimes circumstances limited what could be done.</p>
<p>Especially damaging was commissioner Dyson Heydon telling off Shorten for his style of answers. While Heydon framed his criticism in terms of the witness’s own interests and as “a prima facie view”, he was accusing Shorten of being political and talking around questions.</p>
<p>“A lot of your answers are non-responsive,” Heydon said. “You, if I can be frank about it, have been criticised in the newspapers in the last few weeks and I think it is generally believed that you have come here in the hope you will be able to rebut that criticism or a lot of it. I’m not very troubled about that, though I can understand that you are, and it’s legitimate for you to use this occasion to achieve your ends in that regard. What I’m concerned about more is your credibility as a witness.</p>
<p>"A witness who answers each question ‘yes’, ‘no’, ‘I don’t remember’ or clarifies the question and so on gives the cross-examiner very little material to work with. It’s in your interest to curb these to some extent extraneous answers.”</p>
<p>It is being widely speculated that these comments suggest Shorten’s performance as a witness will attract negative comment in the commission’s report, quite apart from whatever is found on questions of substance.</p>
<p>Asked later about Heydon’s casting doubt on his credibility, Shorten said pointedly: “He has a job to do, I get that, it’s Tony Abbott’s royal commission.”</p>
<p>Shorten was reinforcing Labor’s fundamental argument about the commission – that it is Abbott’s expensive witch-hunt against him. In attempting to tend the wounds he is left with, Shorten and Labor will dwell on the obviously political nature of the inquiry.</p>
<p>But that won’t stop a critical report, if that’s what comes at the end of the year, inflicting more harm as the election nears.</p>
<p>What’s out there from the evidence provides a lot of grist for the media and Labor’s opponents. But there is not any instance of illegality, and various company cases are confusing, able to be argued different ways. That may both help and harm Shorten – some people will give him the benefit of the doubt, others will take the “smoke must mean fire” position.</p>
<p>One-time ALP national secretary Bob Hogg has <a href="https://theconversation.com/labor-veteran-calls-on-shorten-to-quit-over-conflict-of-interest-44461">called on Shorten</a> to resign, asking on Facebook: “Is the concept of conflict of interest beyond your understanding?”</p>
<p>Quite a few in the caucus will be feeling a high degree of frustration that the Abbott government is very vulnerable while Labor has relatively ineffective firepower. But Shorten is protected by the party’s rules, the lack of an alternative and the searing that leadership instability previously inflicted.</p>
<p>In the immediate aftermath of this week’s injury, a test of Shorten’s resilience will be whether he can get the focus onto the government’s weak spots. Then he has to manage the ALP national conference at the end of the month. He can’t afford that to turn bad.</p>
<p><strong><a href="https://theconversation.com/politics-podcast-tim-soutphommasane-on-team-australia-and-racism-44365">Listen to the latest Politics with Michelle Grattan podcast with guest, Race Discrimination Commissioner Tim Soutphommasane, here or on iTunes.</a></strong></p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bill Shorten’s appearance at the royal commission has not only damaged him but diverted a good deal of attention from the signs of division and tension at senior levels of the Abbott government.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/438482015-06-25T20:22:32Z2015-06-25T20:22:32ZGrattan on Friday: Winter risks are greater for Shorten than Abbott<p>The parliamentary budget session has ended with Tony Abbott having reason to feel a good deal more confident than Bill Shorten.</p>
<p>After the budget itself going down relatively well for the government, some A$14 billion of savings have been passed in the last fortnight. Abbott has planted national security centre stage, and resolved the nasty ministerial dog fight over the citizenship legislation.</p>
<p>Shorten’s personal ratings have slipped. His toes are on the sticky paper of the royal commission into union corruption. The Killing Season series forced him to apologise for a <a href="http://www.3aw.com.au/news/neil-mitchell-if-the-killing-season-is-right-bill-shorten-lied-about-his-role-in-julia-gillards-downfall-20150624-ghw4hu.html">lie he told</a> 3AW in 2013.</p>
<p>Labor’s lead in the polls is solid but not massive. By the spring session it may be clearer whether that lead is going to hold.</p>
<p>The six-week recess will throw up tests for both leaders. One can say confidently it will not, as Shorten claimed this week was possible, see the calling of an election.</p>
<p>In particular, Abbott will be trying to advance two issues on his agenda – reform of the federation and the Indigenous referendum. But Shorten will have a tougher go of it in this period. He needs to get through his July 8 royal commission appearance with minimal damage, and he has to avoid the ALP national conference later that month turning into a negative.</p>
<p>Abbott has called a “retreat” with the premiers late in July to discuss federalism. While that will be only an early step in the federation debate – which is entwined with the tax debate – it should give some indication of whether serious change will be possible.</p>
<p>This week the draft green paper on federal-state relations was leaked, forcing the government to release it prematurely. Prepared by the Prime Minister’s department, it canvasses a wide range of options on health, education, and finances, without recommendations. The publicity around the most extreme – such as charges for public schools – showed how easy it is to raise a scare in this area.</p>
<p>Finding sufficient consensus among premiers for reform will be tough, especially given the federal government has little or no money to grease the way for trade-offs. And there is scope for hardball. For instance, if Western Australian premier Colin Barnett had a mind for it, he could make co-operation dependent on a new GST distribution formula.</p>
<p>Over the years Abbott himself has been all over the place on federalism: not so long ago, he was anti-states in his attitude; now, he is much more the federalist. He has lacked and probably still lacks any clear conceptual view.</p>
<p>Earlier in the month, on July 6, Abbott will face a quite different challenge in the pursuit of consensus, when he meets Indigenous leaders to discuss the proposed referendum to recognise the first Australians in the constitution.</p>
<p>The time frame is long – there will be no vote until the next parliamentary term. But progress is not as good as supporters might have hoped.</p>
<p>Indigenous people are divided about the extent of the change, and it is hard to see how the divisions can be reconciled. Abbott favours minimalism, and anything but a very limited proposal would be unlikely to meet the demanding conditions for a successful referendum. Apart from the Indigenous splits, there is vocal opposition from some conservatives.</p>
<p>The parliamentary committee, headed by Indigenous Liberal MP Ken Wyatt, that has been considering the referendum tabled its final report this week. It has suggested several options for wording; it was inconclusive on when a vote should be held, beyond saying it should be when there was the best chance of success.</p>
<p>The July 6 meeting is crucial. It will gauge the potential for compromise. But there is also a risk of it becoming unstuck if the diverging views proved too polarising. These views include Pat Dodson’s desire for a prohibition on discrimination to be written into the constitution, and Noel Pearson’s proposal to include an advisory body in the constitution, with a declaration of recognition outside the constitution.</p>
<p>Abbott has invited Shorten to the meeting but has refused to have the Greens, which is short-sighted (given the government hopes for more co-operation with them under Richard Di Natale) and somewhat mean spirited.</p>
<p>While these issues are important for Abbott, Shorten has a lot more at stake in this recess.</p>
<p>There’s been much talk about whether the July national conference will preserve Labor’s conscience vote on same-sex marriage or “bind” its MPs. Support for binding would be a slap in the face for Shorten, a strong backer of the conscience vote.
But a more vital issue for him is to ensure the conference does not prohibit a future Labor government from turning around asylum seeker boats. If it did, that could be disastrous for the ALP in an election campaign.</p>
<p>By the time he gets to the conference, Shorten will have faced the royal commission’s questioning about his past as boss of the Australian Workers Union. It’s hard to over-estimate the significance of this appearance for him.</p>
<p>Shorten is well aware of that. So the reference in The Killing Season to a meeting he had with Kevin Rudd shortly before the 2013 coup couldn’t have come at a worse time. Radio presenter Neil Mitchell had to hand the audio of Shorten two days after the meeting denying he had spoken to Rudd about the leadership.</p>
<p>Shorten on Thursday explained his lie by saying “I was motivated by not wanting to cause even greater heartache and concern, which was then already going on in the Labor Party”. Unfortunately for Shorten, a lie is a lie.</p>
<p>“You can rest assured, I am kicking myself in hindsight,” Shorten said. No doubt – especially when he desperately needs his word to be beyond dispute as he canvasses his past in the AWU.</p>
<p><strong><a href="http://michellegrattan.podbean.com/e/malcolm-turnbull-1435226008/">Listen to the newest Politics with Michelle Grattan podcast with Communications Minister Malcolm Turnbull on iTunes or here.</a></strong></p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The parliamentary budget session has ended with Tony Abbott having reason to feel a good deal more confident than Bill Shorten.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/436052015-06-21T12:43:30Z2015-06-21T12:43:30ZGovernment’s citizenship changes target members of listed terrorist organisations<p>When Bill Shorten was asked by the royal commission into union corruption to appear before it, he said he wouldn’t be commenting on allegations about his time as an Australian Workers Union official until he gave evidence.</p>
<p>The no-comment position quickly became untenable. On Sunday, Shorten was on the ABC’s Insiders talking in detail about claims that continue to emerge.</p>
<p>Shorten is grappling simultaneously with two issues that have the potential to inflict serious damage on him and the opposition – questions about own past, and the government’s attempt to wedge Labor on national security.</p>
<p>Shorten strongly defended the deal he did over the EastLink project in Melbourne, which gave the employers greater flexibility. The $A300,000 that the company is reported to have paid the union was for training union delegates and health and safety, he said, something that “is not unusual in the construction industry”.</p>
<p>Shorten portrayed himself a “modern bloke”, the “moderate trade union official working cooperatively between employees and employers” who in industrial negotiations had tried to get an agreement that benefited all – which that one did, according to business leader Tony Shepherd, who was involved.</p>
<p>The Liberals ignore the rather paradoxical position they find themselves in when they seek to condemn such an agreement – as distinct from asking about the nature of the company payments to the union.</p>
<p>It sits awkwardly with their usual calls for industrial flexibility to suggest Shorten ripped off the workers when he negotiated give and take deals, which is what the Liberals advocate in industrial relations.</p>
<p>Shorten on Sunday was less forthcoming about the case of Winslow Constructors paying the dues of some 105 unionists.</p>
<p>He would need to look at the documentation, he said. His preference was that employees paid their own union dues (which might be collected by the company as a payroll deduction). But it was “entirely possible” that companies paid for the memberships although “it wasn’t the practice of the union as its preferred model”.</p>
<p>Shorten believes, no doubt correctly, that one of the purposes of the royal commission was to chase down dirt on him, and a report that it has asked his former wife about some of her share dealings when they were married suggests it is going into every nook and cranny. He condemned the targeting of his ex-wife as disgusting and unethical.</p>
<p>The Shorten history will bubble along in the background in this final parliamentary week before the winter recess when the government’s controversial citizenship legislation will be centre stage.</p>
<p>The legislation will be based on updating Section 35 of the Citizenship Act, which automatically strips citizenship from dual nationals who fight in the army of a country at war with Australia.</p>
<p>The modernisation would apply the provision to members of listed terrorist organisations, covering foreign fighters and people in Australia, although it is not clear whether anything more would be required than simply membership for those affected locally. The legislation would allow for an appeal to a court.</p>
<p>The bill as drafted is said to accommodate the concerns of Malcolm Turnbull, who has been outspoken about the danger of the originally flagged ministerial discretion making the move unconstitutional.</p>
<p>Turnbull’s very public concerns have given Shorten some cover, although shadow attorney-general Mark Dreyfus left Labor exposed last week when he suggested foreign fighters be brought home to face the courts. This was in response to being asked how a terrorist fighting in Syria could be convicted. Tony Abbott quickly cast this as Labor wanting to “roll out the red carpet” for terrorists.</p>
<p>Shorten is certainly hoping that the bill to be introduced by the government on Wednesday will be a compromise Labor can accept.</p>
<p>Shorten referred on Sunday to the current Citizenship Act and said he supported extending it to “terrorist organisations who might not be foreign countries but they have the same taking up of arms against Australia”.</p>
<p>The Labor Party did not support dual citizens who were terrorists keeping their citizenship, Shorten said, but reiterated that the law had to have a role for the courts.</p>
<p>Shorten can’t change whatever is there in his union days – he can only explain and defend it. He does have discretion on how Labor reacts on the citizenship legislation and whatever else the government brings forward on the security front in coming months – but it’s a discretion limited to what the Labor Party will bear. Abbott is desperately trying to find the point where some in the ALP insist civil liberties must come to the fore.</p>
<p>Abbott this week will talk up another aspect of security in a speech that will look to the defence white paper later this year, and reaffirm the government’s commitment to increased defence spending as a proportion of GDP.</p>
<p>As Labor braces itself for the final episode of the ABC’s program The Killing Season on Tuesday, it’s instructive to remember that only a few months ago there was speculation the end of this parliamentary season might see Abbott’s demise.</p>
<p>Now he’s revived his leadership, and the backbenchers who were then so critical have become his best friends. That’s what some consultation, a soft and favourably received budget and a good dollop of scare tactics can do. The recipe for Shorten to overcome his troubles is not so clear.</p><img src="https://counter.theconversation.com/content/43605/count.gif" alt="The Conversation" width="1" height="1" />
When Bill Shorten was asked by the Royal Commission into union corruption to appear before it, he said he wouldn’t be commenting on allegations about his time as an Australian Workers Union official until he gave evidence.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/434682015-06-18T20:25:52Z2015-06-18T20:25:52ZGrattan on Friday: Bill Shorten’s purgatory puts Labor into limbo<p>Bill Shorten’s July 8 appearance before the royal commission into union corruption is crucial for his credibility and has major implications for his leadership.</p>
<p>Shorten needs to lay absolutely to rest any suggestion that in his previous life as Australian Workers Union (AWU) chief he put the union’s interests ahead of those of the workers.</p>
<p>But the very fact Shorten is before the inquiry will be a negative in some voters’ minds, making it a no-win situation for him. The question is whether the damage will be light or disastrous.</p>
<p>Shorten was forced to <a href="https://theconversation.com/shorten-seeks-to-fast-track-union-royal-commission-appearance-43467">ask for his testimony</a> to be brought forward in the wake of media stories about union deals.</p>
<p>In particular, Fairfax Media <a href="http://www.theage.com.au/victoria/bill-shortens-union-took-hundreds-of-thousands-from-building-company-20150617-ghq5si.html">reported</a> the AWU was paid almost A$300,000 after he struck an agreement with Thiess John Holland for the $2.5 billion EastLink road project in Melbourne that cut conditions and gave the company big savings.</p>
<p>But it should be noted that Tony Shepherd, then-chairman of Connect East that subcontracted Thiess John Holland and latterly head of the Abbott government’s commission of audit, has <a href="http://www.afr.com/news/politics/tony-shepherd-backs-bill-shorten-over-eastlink-worker-sellout-claims-20150618-ghqu18">strongly defended Shorten</a>, saying the deal was good for employers and workers at a time when “construction was appalling”.</p>
<p>This parliamentary session’s penultimate week has been all downside for Shorten. Only months ago Tony Abbott was in deep trouble. Now Shorten finds himself tangled in a net of his own history as well as current issues.</p>
<p>Tuesday <a href="http://www.theaustralian.com.au/national-affairs/newspoll/newspoll-bill-shorten-approval-rating-at-record-low-28-per-cent/story-fnc6vkbc-1227399413962">brought a Newspoll</a> showing the opposition leading but Shorten’s ratings poor, plus a damaging episode of The Killing Season reprising Labor divisions. On Wednesday-Thursday came the Thiess and other union tales. All fodder for the government. By Thursday, the Sydney Morning Herald was <a href="http://www.smh.com.au/comment/smh-editorial/bill-shorten-should-consider-his-future-amid-awu-revelations-20150617-ghq7r5.html">claiming</a> in an editorial: “The position of Bill Shorten as federal Labor leader is becoming untenable”.</p>
<p>Shorten is on the defensive to a much greater degree than at any time since becoming leader.</p>
<p>The bad week came despite Labor having ammunition against the government – the schmozzle over the as yet unseen legislation to strip citizenship from dual nationals associated with terrorism, and Abbott’s refusal to say whether Australia paid $US30,000 to the crew of a people smuggling boat.</p>
<p>But with his confidence high, Abbott has become increasingly brazen. He’s ready and able to run over an opposition that fears and falters, and even to display a touch of Ruddism towards his ministers. The citizenship bill, when finalised, won’t go back to cabinet, despite (or perhaps because of) its sensitivity.</p>
<p>Abbott accused Labor of wanting to “roll out the red carpet” for returning terrorists, as the opposition got caught between Shorten’s earlier “in principle” support for the move on dual nationals and Labor’s increasing concern about the revocation power being vested in ministerial hands.</p>
<p>After the citizenship bill is released next week, we’ll get an idea of whether Abbott has succeeded in forcing Labor to break its bipartisanship on national security.</p>
<p>We may not know definitely, because the bill will go to the parliamentary committee that has been able to devise compromises on earlier legislation. Will Abbott, who has his blood up, want a divided report or the usual consensus that comes from that committee?</p>
<p>The opposition had legitimate questions over the allegation the government paid the six-member crew of a people smuggling boat $US5000 each to take the passengers back to Indonesia. But after its initial attack, Labor appeared spooked when it became clear that under the ALP government payments were made for information about people smuggling and disruption activities.</p>
<p>If Shorten had greater authority and Labor more confidence, the opposition would not have hesitated. Paying for disruption activities and information is different in kind from giving out a big sum to the smugglers after a boat is intercepted. And also the Indonesians, who have been apparently untroubled by “disruption” payments, were loudly demanding answers on the boat incident.</p>
<p>On a completely different front, Shorten copped fire when Labor announced it would oppose the legislation for the government’s tougher assets test on pensions, which will save $2.4 billion over the forward estimates. The opposition then quickly became irrelevant when the <a href="https://theconversation.com/deal-to-pass-tougher-assets-test-includes-more-scrutiny-of-retirement-income-43356">Greens did a deal</a> with the persuasive Scott Morrison.</p>
<p>In terms of policy, Labor’s position is flawed. Yes, there are losers up the income scale in the Morrison model, but there are winners down the scale. And when savings need to be made, it is reasonable that the well-off don’t get the pension, or get less of it.</p>
<p>Whether Labor’s stand on pensions is a political miscalculation is less clear. The government can portray it as the ALP standing up for the non-needy. But Labor is making a direct pitch at those in the pre-pension age bracket. Shorten said some 700,000 in their 50s and early 60s would be hit. Once the change is legislated, however, Shorten can’t argue he’d reverse it – he’d have a fight over fiscal irresponsibility on his hands.</p>
<p>Between now and July 8, Shorten will be living in political purgatory, which will impose a discount on the effectiveness of everything he does.</p>
<p>Worse for him, the inquisition is expected to stretch out. The commission said that because he had asked to appear early it will not be possible for everything to be done in one sitting. Anyone affected by his evidence will be able to seek to cross-examine him later.</p>
<p>And then there will be the wait for the findings.</p>
<p>For Labor, there is a nightmare of uncertainty ahead.</p>
<p><strong><a href="http://michellegrattan.podbean.com/e/sarah-hanson-young-1434357637/">Listen to the latest Politics with Michelle Grattan podcast, with guest, Greens Senator Sarah Hanson-Young, here or on iTunes.</a></strong></p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bill Shorten’s July 8 appearance before the royal commission into union corruption is crucial for his credibility and has major implications for his leadership.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.