Radio National Breakfast with Fran Kelly

SUBJECT/S: Dyson Heydon, Trade union royal commission, Child sexual abuse royal commission











SUBJECT/S: Dyson Heydon, Trade union royal commission, Child sexual abuse royal commission

FRAN KELLY, HOST: Mark Dreyfus is the Shadow Attorney-General. Mark Dreyfus, welcome back to Breakfast.




KELLY: Have you read Justice Heydon’s reasons for not stepping aside, all 67 pages of it?  


DREYFUS: Yes I have. And Labor’s concerns about Dyson Heydon’s conduct have not been satisfied by anything he’s said or published yesterday. These are reasons in which he’s sought to minimise the nature of the event, appearing to say at times that it wasn’t a Liberal Party event when it clearly was. And he’s also sought to minimise the absolutely clear political context of this royal commission.


KELLY: Well I’ll come to that in a minute, but did you find any legal mistakes in his ruling?


DREYFUS: Well it’s a matter of fact, the perception of bias, and that’s the problem with his reasons. He hasn’t really approached this as an ordinary fair-minded person would. I think Australians have entirely lost confidence in this royal commission to operate free from political bias and the publication of this reasons has done nothing.


KELLY: How do you judge this though? Just saying that Australians have lost confidence, that Australians perceive bias doesn’t make it true. And this is what the commissioner spent more than a week considering, and he came back with a judgment that any fair-minded person wouldn’t see bias.


DREYFUS: And he’s got it wrong and we’ll see whether the unions, who’ve brought this application, want to take this matter now to be determined by a court. But I looked at the invitation with the Liberal Party logo on it, and the clear statements that the cheques for the occasion were to be made payable to the Liberal Party and proceeds from the occasion were to be used for state campaigning by the Liberal Party. I think an ordinary person looking at that is going to say this is a Liberal Party event and Dyson Heydon was happy to associate himself with it.


KELLY: That’s the point, isn’t it? An ordinary fair minded person might have looked at all of that as you did, but Dyson Heydon pointed out he doesn’t read emails, he doesn’t even know how to open emails, and he didn’t see those things.


DREYFUS: Well, leaving aside that extraordinary proposition that we’ve got someone sitting on a royal commission in 2015 that doesn’t read emails -


KELLY: Does that matter?


DREYFUS: - leave it aside, I don’t think it matters at all because the way this is to be judged is by looking at it as an ordinary person would, and an ordinary person, an ordinary Australian would say this was a Liberal Party event and Dyson Heydon was happy to be associated with it. I think that this scandal has damaged the Royal Commission beyond repair and Tony Abbott has missed the opportunity to remove Dyson Heydon from this royal commission.


KELLY: Dyson Heydon, in his ruling, not only rejected the idea that his agreement to deliver the Sir Garfield Barwick Address met the legal test of apprehended bias, he made the point that a fair minded person would accept that someone of his experience – he’s a retired High Court judge – would be able to put out of his mind any irrelevant matters and deal with the issues impartially. Do you not accept that?


DREYFUS: No, and that’s not the way that a fair-minded person looking at this is going to approach it. They’re going to -


KELLY: - I’m asking you. I’m asking you as a lawyer, as a Shadow Attorney-General. Do you not accept that a former High Court judge can preside on a commission and put any partisanship he might have aside and just deal with the facts before him?


DREYFUS: This matter is not going to be determined by me giving character references for Dyson Heydon, or anybody else for that matter. It’s to be looked at from the point of view of someone looking from the outside saying here’s the bloke that’s been appointed to determine an absolutely politically-charged royal commission and all of the issues arising in it. We can see from the Interim Report just how politically-charged all of this royal commission has been from the start. And he’s prepared, in the middle of the royal commission, to go and speak at a Liberal Party event organised by branches of the Liberal Party. And you don’t need to go beyond that. That’s the central proposition here, and Dyson Heydon despite writing 67 pages of reasons has actually side-stepped it.


KELLY: Yes, but you don’t need to go beyond that in a sense but just saying it is so doesn’t make it so. Just by saying there is a perception of bias doesn’t mean it is so. That’s what Dyson Heydon was charged with assessing, and that’s the way it should be under the legal process isn’t it, he should assess himself. And he’s come back and said it’s not so. So, where to from here?


DREYFUS: The unions are considering whether or not they are going to take this matter to a court, because of course Dyson Heydon is not a court. The royal commission is not a court. And Labor is – because our concerns about Dyson Heydon’s conduct have not been satisfied by anything he’s said yesterday – Labor will ask the Senate to support the motion seeking his removal when the Senate sits next Monday.


KELLY: So, to ask the Governor-General to intervene?




KELLY: Why would the Governor-General intervene to shut down this? Are you saying to the Governor-General, through this motion, that Dyson Heydon is actually biased?


DREYFUS: No, this is about his continued ability, now that this absolutely clear apprehension of bias has been created, to sit and to continue to sit as royal commissioner. I say again, Tony Abbott’s missed the opportunity here to remove Dyson Heydon. We’ve got a royal commission that’s been politically charged from the outset. It’s a misuse of the royal commissions power by Tony Abbott. He should never have commenced this royal commission pursuing the political objectives of the Liberal Party, and it’s absolutely clear now just what a Liberal Party exercise this is. It’s a biased royal commission being run for the Liberal Party, and now clearly overseen by people happy to associate with the Liberal Party.


KELLY: It’s clear from your response though Mark Dreyfus that there’s nothing that the commissioner could have reasoned or argued that could have changed your mind, is there?


DREYFUS: On the contrary, on the contrary. If there had been something else that dispelled the absolutely clear impression left in the mind of any fair minded person that this was a Liberal Party event, then I would have been prepared to listen. So would everyone in Labor. But unfortunately, this royal commission is now tainted beyond repair. Tony Abbott should remove Dyson Heydon as commissioner.


KELLY: Can I just ask you finally, briefly, the Royal Commission into Institutional Responses to Child Sexual Abuse was due to deliver a report on its recommendations for redress. Do you believe a national redress scheme is appropriate? Is that Labor’s position?


DREYFUS: We have to wait and see what the Royal Commission has had to say on that subject. The Commission as you said, was due to deliver its report to the Government yesterday. What we don’t want is the Government sitting on that report as they did with the interim report of the Royal Commission last year. It needs to be published as soon as possible so that all of Australia can look at the reasons that the Royal Commission into Child Sexual Abuse has given. And we’ll form a position when we’ve read the Commission’s interim report.


KELLY: Mark Dreyfus, thank you very much for joining us.


DREYFUS: Good to be with you Fran.