Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise this evening to again draw the Senate's attention to the untenable position of Mr Abbott's trade union royal commission. I have addressed the Senate before in relation to this royal commission, this partisan royal commission that was established by Mr Abbott with the intention of spending $80 million of taxpayers' money on a star chamber charged with persecuting Mr Abbott's political opponents.

But tonight I rise to speak to what I consider to be the deeper matters this issue has brought to the public attention. These deeper matters do not relate to the short-term political interests of the opposition of a government. Rather, they relate to the long-term interests of the Australian people, interests that all political parties ultimately serve. Royal commissions have proved themselves to be vitally important institutions. Properly used, a royal commission can change the nation. The Hope Royal Commission on Intelligence and Security conducted between 1974 and 1977 carried out a comprehensive inquiry into Australian security services. Commissioner Hope's report helped to change the way our security services operated and set in place the foundations of the modern and accountable national security system that still protects the nation today.

The Royal Commission into Aboriginal Deaths in Custody conduct between 1987 and 1991 was another royal commission that changed our nation for the better. It brought to light the fundamental issues of structural inequality that lead to social dysfunction and profound tragedy. We are still today struggling to fully implement the findings of this particular royal commission. I also want to mention the Royal Commission into Institutional Responses to Child Sexual Abuse. I do not mention because I want political kudos for Labor for setting that inquiry into motion; to the contrary, I mention it precisely because it was not set up to seek partisan political advantage. That inquiry was set up for the best interests of our nation; it was charged to investigate and report back on the evil of child sexual abuse in the institutional context. That royal commission has received bipartisan political support and the impassioned support of Australians across the political spectrum.

But the same cannot be said of the Royal Commission into Trade Union Governance and Corruption. From the outset, fair-minded Australians have seen this inquiry is politically motivated and is designed to smear and slander the Abbott government's political opponents. Mr Abbott has even admitted himself that the royal commission is focused upon the persecution of the Labor Party. Just over a week ago Mr Abbott said:

The work of the Royal Commission is absolutely vital, not just for our country as a whole, but it’s vital for the future of the union movement, it’s vital for the future of the Labor Party.

Mr Abbott's comments leave no doubt as to the politically motivated bias that underpins this royal commission.

A royal commission is not a court. Despite the desperate and ignorant claims of those opposite, royal commissions are explicitly extensions of the executive. By definition, the powers of the executive and a royal commission cannot be separated. And there is very good reason for this—royal commissions are bestowed with significant coercive investigative powers vested in them by the government via the Governor-General. However, they are not bound by some of the strict legal structures that maintain accountability within the court system. As an arm of the executive, a royal commissioner's accountability should be maintained by the government and, in turn, the parliament.

Despite the Abbott government wanting to gag any scrutiny of this partisan royal commission, despite the Attorney-General of Australia screaming at fellow members of this chamber as though they were committing a crime if they dared to criticise the royal commission or the royal commissioner, the parliament is absolutely the appropriate place to hold the commission to account. This is why we moved today a motion about the royal commission.

While a royal commission is not a court, it still maintains responsibility for upholding the principles of natural justice. There are two critical elements of natural justice. This first is the rule against bias—actual, imputed or apparent. Apparent bias is established when, in the eyes of a reasonable person, the conduct of a decision-maker gives rise to the suspicion that they are not impartial. Dyson Heydon's conduct in agreeing to speak at a Liberal Party event—a party fundraiser no less—most certainly establishes this. The fact that he then concocted a whole string of excuses, he mislead the Australian public about why he had withdrawn from the royal commission and then just to really wrap it up he came up with a new definition of a fundraiser. Apparently, it is not a fundraiser if everybody does not donate. Every single person must make a donation for it to be a fundraiser according to an allegedly pre-eminent legal mind.

Well I have some news for my daughter's school. I went to a fundraiser there the other day and not everyone in the room actually made a donation—it was very hard to make that happen. But let me be very clear about this, the school will be very shocked to hear that they were not running a fundraiser. They billed it as a fundraiser and donations were accepted. Every single person did not make a donation, but that did not stop it from being a fundraiser—a reasonable person, indeed.

The second element of natural justice is that of the right to a fair hearing. The right to a fair hearing dictates that individuals receive prior notice to a case being heard against them, and the opportunity to both answer the case as well as present their own. In order for an individual to answer a case and present their own, that individual must be provided with the opportunity to make a submission to the adjudicator and mount a defence. Furthermore, the right to a fair hearing demands that the defendant, or their representative, be provided the opportunity to scrutinise the evidence being presented. The well-established process for this scrutiny relies upon cross-examination as the vehicle. Cross-examination ensures that the evidence relied upon to form conclusions about any such matter has been thoroughly scrutinised and stress-tested for weakness. However, Dyson Heydon and Mr Abbott's royal commission have wilfully ignored these principles of natural justice. From the very beginning, the prejudicial nature of this royal commission—

Michael Ronaldson (Victoria, Liberal Party, Minister for Veterans’ Affairs) Share this | Link to this | Hansard source

Madam Acting Deputy President Peris, on a point of order: I understand that the Deputy Leader of the Opposition in the Senate is seeking to make some political points tonight, but he has reflected twice now on the royal commissioner in a personal sense that is inappropriate, and, in my view, it is very much against the standing orders.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

There is no point of order. He is not a judge.

Nova Peris (NT, Australian Labor Party) Share this | Link to this | Hansard source

There is no point of order. Senator Conroy, please continue.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The practice directions are supposed to provide consistent structures and principles of process within the commission. They outline the commissioner's expectations regarding the appearance of witnesses, production of evidence, rights of legal representation and publishing of commission materials. A comprehensive document of practice directions was produced by Dyson Heydon in the initial stages of the trade union royal commission. Despite the supposed governance role of this document, to be relied upon by all parties to maintain fairness of process, the explicitly unfair nature of this royal commission was plain to see in just the third paragraph:

Where the Commissioner thinks it appropriate, he may dispense with or vary these practices and procedures, and any other practices or procedures that are subsequently published or adopted.

So there are a set of rules, 'But I can toss them out the door when I want.' Love it! Procedural fairness! So before establishing the various rights and responsibilities of all parties within the royal commission, Dyson Heydon reserved his right to revert to his Star Chamber tradition and dispense with them all at will. In paragraph 16 of the practice directions, it is stipulated that nothing prevents a person from seeking authorisation to appear before the commission if they feel that their interests may be affected. However, in the next paragraph, Dyson Heydon again reserves his right to reject, withdraw, limit, make conditional and control any appearance.

These provisions are a direct contradiction to the natural justice principle of an individual's right to answer a case against them. Put aside that Dyson Heydon is boasting that he has held 16 days worth of secret hearings, where, by definition, it is not possible to confront your accuser and it is not possible to know what evidence is going to be tossed at you. You might be able to read it on the front page of the newspaper the day before, because this royal commission's job is to generate salacious headlines that smear people across this country. Furthermore, the practice directions withhold the rights of parties to cross-examine witnesses and interrogate evidence. They withhold the rights of parties to cross-examine witnesses and interrogate evidence.

Beginning at paragraph 45, the directions outline the laborious and time-delaying process of making an application to cross-examine. It is explicitly stated that, despite counsel assisting having had the opportunity to establish a case with a witness, no cross-examination can be made until a later date—and I will be coming back to this in a moment. This is deliberately designed to generate defamatory headlines in newspapers, to smear people across Australia without a recourse for or the right of response by the person who is being smeared and attacked. This provides the opportunity for the initial case to be prosecuted through the media before the evidence can be tested, and there can be no greater condemnation of Dyson Heydon and his Star Chamber than that.

Let me give you an example of what went wrong with Dyson Heydon. These provisions are in direct contravention, I repeat, to the natural justice principle of an individual's right to their own defence. The shortcomings in this approach were obvious from the appearance of the star witness on the first day—the royal commission's first witness—a disgraced union official, Mr Ralph Blewitt, a self-confessed fraud. Counsel assisting and Mr Blewitt were allowed to establish a series of salacious allegations against a range of people, including former Prime Minister Julia Gillard. So he gets to say whatever he wants, make up anything that he wants—no, no cross-examination at the time, no ability to challenge what he was saying. But what happened on the very next day, when Mr Blewitt was asked a few questions that went to the heart of his own credibility? Ralph Blewitt's credibility was utterly destroyed when he admitted to committing perjury while he was sitting there on the stand. But it was okay; he did apologise! He hoped he had not offended anyone! This is a man who admitted in newspapers before he appeared that he had forgotten, when he had fled overseas to avoid prosecution himself, much of the detail and information that he was providing that day. He had forgotten. But he did say, helpfully, in a newspaper that he had been reminded of all this information when Mr Harry Nowicki and Mr Michael Smith came to visit him with a bunch of documents. It reminded him of all those things he had forgotten.

But there is no more damning activity of this royal commission—or more importantly, its lack of activity—than the fact that Dyson Heydon has invoked his authoritarian powers numerous times, rejecting evidence and directly intervening to control the appearances of witnesses. The treatment of Kathy Jackson, who was recently found guilty of misappropriating $1.4 million from the Health Services Union, is a damning case that clearly demonstrates the hypocrisy and prejudicial nature of this royal commission. Following the specified procedures, the HSU tried to submit comprehensive evidence related to Kathy Jackson's misappropriation of union members' money. A massive amount of documents were submitted, alleging that Kathy Jackson had stolen money from the members of the HSU. What do you think the royal commission did with this evidence? Stepping up to protect the Prime Minister's star witness and chief slanderer, Dyson Heydon rejected the evidence—and this is in writing, in his own words—on the grounds that it was not relevant to proceedings before the commission. I just want to go through that again. A royal commission into corruption of the trade union movement is given evidence of corruption in the trade union movement and the commissioner says that it is not relevant. The very same evidence is then tested in a court in Victoria, and Kathy Jackson is found guilty. But Dyson Heydon said it was not relevant to a royal commission into corruption of the trade union movement.

But it got worse! What could me more relevant to a royal commission charged with examining governance than evidence subsequently used to convict someone of fraud. This was not the end of Jackson's special treatment at the hands of the royal commission. It was uncovered today that staff at the royal commission provided Kathy Jackson with briefings regarding the questions that would be put to her on the stand. Pamela Williams at the Australian newspaper has uncovered file notes written by royal commission staff detailing their advice to Kathy Jackson and her defence team. To be very clear for those opposite, this is a clear-cut case of coaching a witness. Furthermore, royal commission staff secretly provided Kathy Jackson with advanced evidence detail and organised commission hearings—and I quote directly from a royal commission staffer—to:

... give Kathy the chance to respond to the evidence and to some of the claims being made in the media ...

So what have we got here? We have got a royal commission into the corruption of trade unions that is provided evidence that is subsequently used to convict a thief but is rejected as irrelevant. Instead of investigating this crook, Kathy Jackson, the royal commission decides that it wants to give her a chance to respond to news stories about her alleged activities—which are now proven. This is a royal commission that did not actually investigate corruption but helped corruption—it helped cover up corruption; it helped cover up Kathy Jackson's corruption—because it was politically convenient for Dyson Heydon and Mr Stoljar to do that. It was political convenience.

I can assure you here in the Senate that not all witnesses were treated in this way. When Dyson Heydon called the Leader of the Opposition to appear, thousands of pages of evidence were dumped on Mr Shorten just days beforehand. Mr Shorten received no coaching from royal commission staff and was treated by Dyson Heydon with the contempt that we have come to expect from this prejudicial commissioner—this Liberal stooge. The hypocritical double-standards of Dyson Heydon and the royal commission are clear for all to see. Those witnesses who assist Mr Abbott's efforts to attack his political opponents are provided with the support to do so.

I have not finished with Kathy Jackson yet. When she took the stand days after being prepped, the royal commission was shamed into asking a couple of questions about the media stories—not just 'Oh, would you like to respond' or 'Tell us all about how you spent this money.' They actually asked her a couple of questions. They were shamed into it. What did Kathy Jackson do? She said: 'Just a minute, this isn't part of the plan. This isn't what we agreed beforehand.' Do you know what Dyson Heydon did? He intervened to stop the line of questioning. This is a man who has helped cover up for a crook.

Despite the issuances of lengthy practice direction documents, outlining the royal commission's star chamber procedures, Dyson Heydon has had to issue a further eight substantive practice direction addendums in order to better control the commission's hearings. This star chamber gets better and better each week. These additions further erode the natural justice rights of those involved. These shifting sands of a biased process have been devised and manipulated by Dyson Heydon in order to persecute and do Mr Abbot's political bidding, which is to smear, attack and destroy Mr Abbot's opponents at any cost. I have much more to say but my time is running out. However, I do assure the Senate that I will be back to continue the story of this utterly, utterly compromised and disgraceful star chamber of a royal commission.