The Heydon inquiry into trade unions is just one of a number of royal commissions to get into political trouble – including Petrov and the political bribery scandal in Tasmania … Shortcomings with Dyse’s Luddite defence … Why backout from the Barwick lecture if there was no resulting reasonable apprehension of bias?
IT’S not as though the trade union royal commission is the first such inquiry, with letters patent attached, to run into strife on grounds of apprehended or actual bias.
The royal commission on espionage – the Petrov commission – got into trouble in December 1954 when it was discovered that there was an unfortunate collision of guests at a pre-Christmas drinks party in a house rented in Woollahra for use by the commission.
The party was arranged by K.H. Herde, the commission’s secretary who had been seconded from the PM’s department.
It was attended by commission staff, reporters, public servants from the AG’s department, security people, counsel assisting Victor Windeyer QC and the prime witnesses Vladimir Petrov and his wife Evkodia.
Windeyer said later he would not have gone to the soirée had he known the Petrovs would be there.
Initially, it was believed the three royal commissioners were also at the knees-up – Justices W.F.L. Owen, G.C. Ligertwood and R.F.B. Philip – but that was denied.
The event caused a stir in the senate. ALP senator William Ashley said:
“It was most brash for officials who are expected to remain aloof from witnesses to have acted in a way to make it appear that this elementary principle of judicial conduct was not observed.”
The senator also disapproved of taxpayer funded premises being used “for a gathering of this kind”.
“I would like to know if the Commonwealth cars that were used to transport the guests to and from the function were a charge against Mr Herde or the Commonwealth.”
The commission survived this trauma and so did Pig Iron Bob Menzies, who sailed on for another 12 glorious years in office.
FORMER Queensland judge Bill Carter had been appointed in December 1990 to inquire whether a bribe had been offered in Tasmania so that Labor parliamentarian James Cox would cross the floor and support the Liberal Party.
It the bribe had induced Cox to switch sides it would have enabled Robin (Franklin Dam) Gray to secure government for another term after the election.
The source of the bribe turned out to be Edmund Rouse, a Launceston media proprietor and chairman of logging company Gunns. The idea was to pay $110,000 to Cox, a former TV personality, partly in used bank notes from a safe deposit box belonging to Rouse’s company ETN Ltd.
Rouse pleaded guilty to attempted bribery and was sentenced to three years in the nick, where he served 18 months. The commission went on to find that he had tried to bribe Cox to keep Gray in power.
Gray denied knowledge of the bribe, but there was an unexplained $10,000 found in his freezer at home. He resigned as Liberal leader in 1991 and then did 14 years as a director of tree chopper Gunns.
About nine months after the Labor government appointed the royal commission, Gray and a director of ETN, Mr McQuestin, went to the Tasmanian full court seeking a writ of prohibition to stop Carter from making his report, on grounds of actual or, alternatively, apprehended bias.
Gray said the commission would affect his reputation and “enjoyment of living”.
It was a long and complicated affair in which Gray and McQuestin dredged up every gripe they could muster against Carter.
In January 1991 Gray was on his hind legs demanding the resignation of the premier for asserting that Carter had drawn up the commission’s terms of reference. Carter said he had been consulted.
The same month the president of the local police association complained that Carter had inferred that he had no confidence in the ability of Tasmanian detectives to carry out “quality investigations”.
The commissioner also wanted amendments to the Evidence Act to give him power to “deal expeditiously with those intent upon frustrating the purpose of a royal commission”.
In March 1991 the commissioner sought wider terms of reference, saying:
“It has also become clear that every endeavour will be made – both politically and within the commission’s hearings – to obstruct my work.”
Both Gray and McQuestin said this was further evidence of bias against them.
Disco Dave Porter, for Gray, sought a public disclaimer of any suggestion that he or his client were the subject of Carter’s remark.
There was talk of dragging poor old Billy before the bar of the Tasmanian upper house to explain what he meant by political obstruction. Carter responded by saying Rouse and McQuestin had refused to answer questions and were being unhelpful.
There were fights over the release of a secret transcript of Rouse’s evidence, taken while he was in prison, and whether or not he had implicated Gray in the bribery attempt.
In June 1991 there was a huge barney over an allegation by Clock Face Gunson (for McQuestin) that counsel assisting, Richard Chesterman QC, allegedly offered a deal whereby McQuestin would tell the truth and dob in others, in exchange for a certificate from the commissioner, which would prevent any prosecution.
McQuestin rejected the offer and Carter closed down any discussion of it before the commission, later making a statement, which it was claimed had been the version of events provided by counsel assisting.
This was also said to be indicative of bias.
There was another episode in which Gray claimed to have been rebuked by the commissioner and threatened with contempt after he told the media that his name would be cleared.
It was an enormous kerfuffle, but in the end the full court of William Cox, Hollywood Pete Underwood and Pierre Slicer came down on Carter’s side and found that bias, apprehended or otherwise, had not been established.
DYSE’S use of the Luddite defence in rejecting the unions’ application for his removal deserves closer examination.
The nub of his contention is that he doesn’t read emails and the ones he does “glance” at are printed out by his secretary, Barbara Price.
Therefore, he contends that he can hardly be expected to be fully aware the invitation to deliver the Garfield Barwick address was a Liberal Party event or a fundraiser.
He said at paragraph 51 of his reasons:
“At the outset, it should be noted that there is evidence that I have no computer and that all email correspondence is sent and received by my personal assistant (ACTU MFI-6). Indeed it is notorious among the legal profession that I am incapable of sending or receiving emails. The consequence is that I read emails only after they have been printed out for me.”
At para 171 he set out a response from the solicitor for the commission to the CMFEU’s request for more details about the email trail:
“I note for completeness that neither at Selborne chambers nor at the royal commission, does commissioner Heydon have a computer. All email correspondence is sent and received via [his personal assistant].”
Quite apart from this not being something the ordinary reasonable lay observer would be expected to know, there is the problem of the Electronic Transactions Act, both NSW and Commonwealth.
The commission is operating under both Commonwealth and state letters patent.
The relevant section of the ETA in NSW is 13A:
Time of receipt
Much the same can be found in s.14A of the Electronic Transactions Act (Cth).
Regardless of whether Dyse reads the emails or not, or has no personal computer, as the addressee he is deemed to have received the electronic communication when it becomes capable of being retrieved at the address he designates.
That seems to be relevant to his proffered defence of being unaware of emails that had “Liberal Party” plastered all over them.
FINAL word from a brilliant silk, who emails to make this point:
If there was no resulting reasonable apprehension of bias by Heydon speaking at the Barwick dinner:
If there is no bias to be inferred from a speaker’s participation in the event, the commissioner was free to do so.
After all, he found it was not a fundraiser for the Liberal Party, it was not restricted to the party faithful, others like Murray Gleeson, whose political views remain unknown, had previously spoken at the event.
Why then did he pull out?