Dynamic Tension

There is often tension in the law as to whether a conservative or more robust approach should be taken in respect of an issue. Opinions may differ according to how an issue is viewed. It might be said that a controversy arising out of the Royal Commission into Trade Union Governance and Corruption has produced some dynamic tension in that regard.

Thursday 13 March 2014
On Thursday 13 March 2014 The Royal Commission into Trade Union Governance and Corruption was established with former High Court Judge, the Hon Dyson Heydon AC QC, as the Commissioner.

Wednesday 9 April 2014
On Wednesday 9 April 2014 opening remarks at the Royal Commission into Trade Union Governance and Corruption were made by Commissioner Heydon.

Thursday 28 August 2014
On Thursday 28 August 2014 Commissioner Heydon ruled on what was a bias and conflict of interest claim by the witness Kathy Jackson.

Thursday 30 October 2014
On Thursday 30 October 2014 the Letters Patent establishing the Commission of Inquiry extended the date for the report of the results of the inquiry and relevant recommendations from 31 December 2014 to 31 December 2015.

Tuesday 14 April 2015
It would seem from at least Tuesday 14 April 2015 the NSW Bar Association ran an advertisement of Commissioner Heydon speaking at the dinner which included the Sir Garfield Barwick Address.

Drawing on my own modest experience speaking at seminars, the invitation to speak is extended and acceptance confirmed in advance of the specific advertising of the event.

Thursday 13 August 2015
On Thursday 13 August 2015 it was revealed that the 6th annual Sir Garfield Barwick Address was to be delivered by the Hon Dyson Heydon AC QC at a dinner to be held at the Castlereagh Hotel, 169 Castlereagh Street, Sydney on Wednesday 26 August 2015 from 6:00 pm.

The invitation widely circulated on Thursday 13 August 2015 was resplendent with Liberal Party New South Wales branding. Relevantly it read:

• “The Lawyers Branch and the Legal Policy Branch invite you to attend the 6th annual Sir Garfield Barwick Address”
• “This year the address will be delivered by The Hon Dyson Heydon AC QC”
• “Cheques should be made payable to: Liberal Party of Australia (NSW Division)” and
• “A receipt will be issued. All proceeds from this event will be applied to State election campaigning.”

Controversy
With the revelation of Commissioner Heydon accepting the speaking engagement at a Liberal Party fundraiser, whilst still in the role of conducting a Commission of Inquiry into Trade Union Governance and Corruption, the question arose as to whether Commissioner Heydon ought be removed from the Inquiry due to apprehended bias. Since the instigation of the Inquiry criticism had been levelled at the federal government that it was a politically motivated vehicle designed to attack its opponents, the Australian Labor Party.

The Law
Conveniently two cases dealing with the issue of apprehended bias are instructive here.

In Re Carruthers v Connolly, Ryan & A-G [1997] QSC 132 Thomas J said:
“The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters upon which they are required to investigate and report.”

“In determining the ultimate question of ostensible bias on the part of a Commissioner, the Court must attempt to form some view whether the conduct in the circumstances would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Commissioner will not discharge his task impartially.”

“But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless.”

Justice Thomas ultimately ruled to stop the Connolly-Ryan Inquiry.

The "If the Commissioner were thought to harbour political prejudice" Test of Thomas J seems problematic for Commissioner Heydon.

When sitting on the High Court of Australia Justice Heydon was part of a majority judgment (with Kiefel and Bell JJ) in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 which will give his present predicament little comfort, in my submission. In that case their Honours wrote at paragraph [139]:
“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[179]. 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.”

The appearance of departure from neutrality appears to have been triggered by Commissioner Heydon by his accepting the speaking engagement at a Liberal Party fundraiser, whilst he was still in the role of conducting the Commission of Inquiry.

Commissioner Heydon is required to make findings of credit in respect of witnesses at the Royal Commission into Trade Union Governance and Corruption. He can no longer be seen to be impartial doing so.

With that in mind:

• No one at the NSW Bar Association thought Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?
• Counsel Assisting the Royal Commission into Trade Union Governance and Corruption did not think that Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?

In accepting the subject speaking engagement, Commissioner Heydon compromised the Royal Commission into Trade Union Governance and Corruption. That is the integrity of all the proceedings over which Commissioner Heydon has presided are now compromised. The threshold was breached at agreeing to speak at the fundraiser. The magnitude of the function is irrelevant. Consequences flow from the breach. There is no proper basis for the Royal Commission into Trade Union Governance and Corruption to continue now. It has become irreparably compromised.

Correspondence
Having arrived at that position, the correspondence trail from the first invitation to the correspondence released on Thursday 13 August 2015 interests me. Has any ground shifted? As the government is happy to say in respect of the metadata it seeks to collect from the citizens, "Nothing to hide, nothing to fear". The Liberal Party should produce all of the correspondence in relation to the speaking engagement. If the relevant correspondence contained exculpatory material, one would expect it to be produced. It is curious why the correspondence has not been released. The inference is not good for Commissioner Heydon, the Commission of Inquiry or the Liberal Party.

There is also some incongruity about a Commission of Inquiry seeking to determine the truth, yet relevant correspondence which could perhaps clarify an issue in respect of that Inquiry not being produced by the Commissioner overseeing that Inquiry and an entity (the Liberal Party) which may have ultimately compromised that Commission of Inquiry.

Counsel Assisting
If Commissioner Heydon will not withdraw or stand down, a question arises as to whether Counsel Assisting has an obligation to make an application for Commissioner Heydon to stand down in respect of the bias allegation. A quick reconsideration of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 suggests Counsel Assisting should apply for Commissioner Heydon to withdraw. Whilst that is a criminal law case, it details the roles of the Judge and the Crown Prosecutor in proceedings. It also canvasses the role of defence counsel. It can also be seen to respect the duty to the Court all legal practitioners are required to observe.

In my submission Counsel Assisting has an obligation to preserve the integrity of the Commission of Inquiry and make an application to Commissioner Heydon for him to consider the issue of apprehended bias and perhaps conflict of interest.

In that regard there is merit in making a Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838 type preliminary discovery application for the aforementioned correspondence which has yet to be produced, to determine if an apprehended bias application is needed. Such an application may need to be made to another Court, seeing as it potentially involves Commissioner Heydon producing correspondence.

Conclusion
So it can be seen that significant tension has arisen as a result of Commissioner Heydon agreeing to give the speech to the Liberal Party fundraiser. I would resolve the dynamic tension by having Commissioner Heydon withdraw or stand down from the Commission of Inquiry. That would also be an approach which would encourage the community to have confidence in the Courts and the administration of justice.

Reconciliation Requires Humility, Sincerity, Remorse and Contrition

In the movie Notting Hill (1999) the character played by Julia Roberts attends the bookshop where the character played by Hugh Grant works. She wants to resume their romantic relationship. Her request is resplendent with humility and sincerity. At its height she says,
“And don’t forget, I'm just a girl, standing in front of a boy, asking him to love her.”

The response of the Hugh Grant character is sensible in terms of protecting himself and based on a realistic assessment of their lives together and apart to that point. In a very pleasant conversation, he declines her request. The Julia Roberts character leaves his bookshop and goes about her business.

The Hugh Grant character reflects upon his decision to decline to resume the romantic relationship with the Julia Roberts character and realises he has made a mistake. Subsequently an opportunity presents itself for both of them to be at the same place at the same time. The Hugh Grant character seizes that opportunity and conveys to the Julia Roberts character his enthusiasm to resume their romantic relationship. His plea to the Julia Roberts character was also resplendent with humility and sincerity. Ultimately it was successful and their romantic relationship was resumed.

An Abstract Question
Shortly after I watched that movie a friend asked me an abstract question: Would I entertain a conversation from a specific former girlfriend with a view to reconciling our relationship? A lengthy conversations ensued.

I have long contended that we live in a world where people (wrongly) think it is acceptable to lie and that no adverse consequences flow from that dishonesty. That contention was put to the test rather promptly.

My friend knew a fair bit of the history and circumstances of the woman the subject of the abstract question. The woman in question had deliberately sabotaged a good relationship to pursue other relationships with other men. Her dishonesty increased markedly once she had established her relationship with one of the men. She was actively pursuing a new life and strategic friendships she had made were paying dividends for her. Flaunting her new life and her new men was a part of her strategy. She was also carefully crafting her narrative and her relationship with me was not a constituent part of that narrative. By her words and her actions, she had made it abundantly clear that I no longer served any useful purpose in her life.

I have written previously about credibility and I said independent corroboration of the contention the person with the shattered credibility seeks to make may be required in future before some people are prepared to accept that contention. As they made their aforementioned respective pleas for reconciliation, the characters of both Julia Roberts and Hugh Grant could be seen to be demonstrating humility, sincerity, remorse and contrition. It gave their pleas the necessary quality of integrity.

I told my friend who posed the abstract reconciliation question to me that I would be prepared to make the following concessions:
I would give the woman in question credit for:

• The telephone call to request meet to apologise and resume our relationship
• Getting on a plane and travelling to Brisbane
• Arranging a hotel room to have the subject discussion

Thereafter things got very difficult. The logistics of the actual meeting were then discussed. Was it a hotel where security required meeting in the foyer or could the guest proceed straight to the room? There were strengths and weaknesses in both options.

Once entry to the hotel room had been achieved the complexity of the situation became clear.

My friend and I agreed that the subject conversation could only take place without there being any interruptions by computers, telephones, television or radio. Towards the end of our relationship the woman in question had become quite fond of utilising her mobile telephone and / or her computer whilst in my company, often to contact other people. My many requests for her to not do so were all ignored. It was one of the strategies she used to sabotage the relationship.

My friend contended that once I saw the woman in question my resistance would disappear. I assured my friend that any currency the woman in question may have had in respect of her physical appearance had been spent by her appalling behaviour and her significant dishonesty. Whilst the new life the woman in question worked so assiduously to create at the end of our relationship may have suited her purpose at that time, it did nothing to endear her to me. She has a significant history of not keeping her commitments to me and I have no interest in experiencing any more of her considerable nastiness. In fact what she had achieved was a situation where I do not know what part of the history she told me was true and what part was false. She was now in a position where I would not be inclined to believe a word she said without independent corroboration.

Reflection
In the end I could not give my friend a specific answer as to what would be required to achieve the specific reconciliation she proposed in her abstract question. Whatever the woman in question said and did during that hypothetical meeting to discuss reconciliation, she would be required to demonstrate significant convincing humility, sincerity, remorse and contrition. Her plea would need to be resplendent with integrity. Then and only then might the proposed reconciliation be possible.

Whether by accident or design the Notting Hill movie had provided a rather insightful example of the reconciliation request and what one needed to do to successfully negotiate the exercise.

Insofar as the woman the subject of the abstract question is concerned, I have no realistic expectation that I will ever test my theory with her.

When Acts Done For Political Expedience Amount To Breaking The Law

Accessing and distributing restricted child support documents and information of now Independent MP Billy Gordon and his former partner, Kristy Peckham, for political expedience has become a very serious issue.

On Friday 24 April 2015 it was reported that:

• A few hours before the A Current Affair interview [on Thursday 23 April 2015], the Liberal National Party (“LNP”) handed documents to journalists detailing some of [now independent MP] Mr [Billy] Gordon's child support payments and naming his two young children.

(News)

• The Queensland Opposition has attempted to divert attention away from its release of confidential child support documents relating to Billy Gordon, instead pointing the finger at the Premier and the questions it says she still needs to answer.
• Deputy Opposition Leader John-Paul Langbroek repeatedly told journalists the issue wasn't that the LNP had released child support documents, which revealed Mr Gordon's children's names and were potentially a breach of the law.
• The documents partially shown on the program and released by the LNP to the media on Thursday ahead of its airing, show Mr Gordon is potentially once again in arrears, for more than $700.

(Brisbane Times)

On Monday 27 April 2015 it was reported that:

• Mr Springborg today defended the release by his office of copies of Mr Gordon's former partner's child support statements to journalists.
• He said the information was for background, not publication.
• "Those documents were distributed to actually indicate quite clearly that this matter, which Mr Gordon and the Premier had said had been dealt with, was not dealt with," Mr Springborg said.
• "They were distributed by way of background information, with no expectation that they were being published, and that was the information that was given to the [media] gallery at the time."

(ABC News) (The Guardian)

Comment
If the reports are accurate the Liberal National Party may be in some difficulty. The release of documents to journalists detailing some of the child support payments of Mr Gordon and naming his two (2) young children would appear to breach section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth). The Penalty for such a breach is Imprisonment for up to one (1) year.

The subject revelation could hardly be said to be without knowledge as there was controversy previously about the revelations of the criminal history of Mr Gordon and that such behaviour might be unlawful. Before that fellow LNP member Mal Brough courted significant controversy when he admitted to receiving the diary of Peter Slipper, the then Speaker of the Federal Parliament and his then political rival, from James Ashby. A police enquiry was then called for in respect of Mr Brough and his behaviour.

Mr Springborg seems to admit the subject communication of relevant information behaviour.  Thus far he has demonstrated no basis in connection with relevant Child Support proceedings to be in possession of the documents and then to communicate relevant information in respect of them. Prima facie it would appear an offence has been committed and a confession to that offence has been made, albeit in an attempt to distance himself from the allegedly offending behaviour. On that basis there is substance in the call by Mr Gordon for the police to investigate the subject communication of relevant information.

Prosecution
Prosecutions in this field are not without precedent. On Monday 24 March 2014 the owner of The Courier-Mail newspaper, Queensland Newspapers, was sentenced in the District Court in Brisbane for breaching restrictions on publishing court proceedings. In 2012 it identified a family involved in a Family Court parenting dispute by publishing names and photographs of the mother and four (4) children involved.

The Court fined the newspaper $120,000 and allowed it one (1) month to pay the fine.

The Rule of Law
A significant issue in the 2014 election was the attack upon the Rule of Law by the LNP government during its term in office. The approach of the LNP to the Billy Gordon matter can be said to be a continuation of that attack. It speaks to the judgment of the LNP that it would persist with an approach found by the electorate to be repugnant. It is also curious why the LNP thinks it should be entitled to breach the law and in turn benefit from those breaches to achieve a new election and possibly return to government.

Conclusion
It is disturbing that the LNP leader can access restricted documents and distribute them as he sees fit. His explanation for so doing is not satisfactory and his behaviour and that of his party is akin to the tail trying to wag the dog.

It should not be normal practice for Queensland politicians to access any confidential data they wish. They should be subject to the law and the Rule of Law in the same way as the rest of the community.

Whilst in the circumstances the release of the documents in question on this occasion might have been attendant with more circumspection, that they were not is the responsibility of the LNP and Mr Springborg. Both have sought to pursue the Billy Gordon matter for all the political expedience they can achieve from it. That motivation is another relevant consideration when assessing the subject access to and distribution of the documents and information in question.

Prima facie an offence appears to have been committed and, in the explanation for the behaviour, Mr Springborg appears to admit to both the behaviour and the offence. There is also an issue as to public confidence in both good governance and the police. The matter is entitled to be properly investigated and on the material to hand to date, there is an understandable expectation for Mr Springborg to be prosecuted for breaching section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth).

Endorsements and Credibility

Using a cross-examination technique in relation to a peripheral lie, we can see the impact inconsistent statements made as a result of a paid blind endorsement can have on the reputation of the maker of those inconsistent statements.

The Utility of a Peripheral Lie
In my cross-examination article I discussed how a peripheral lie can be used to challenge the credibility of a witness:
“A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes.”

Inconsistent Statements
In Bilal & Omar [2015] FamCAFC 30 (27 February 2015) relevantly Bryant CJ, Murphy and Loughnan JJ at para [43] considered the issue of credibility of the wife.

• The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind.
• In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that.
• Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.

At para [54] the Court agreed with the contentions of the husband that on the evidence adverse credit findings in respect of the wife were appropriate.

Blind Endorsements
ABC science commentator Dr Karl Kruszelnicki (“Dr Karl”) agreed to and did appear in a number of advertisements promoting the Intergenerational Report (“IGR”) of the Federal Government. He subsequently acknowledged he was only able to read parts of that Report before he agreed to the advertisements as the rest of the Report was under embargo by the Federal Government. The advertisements appeared without a disclosure that Dr Karl was endorsing a Report he had not read.

Once the public became aware of the contents of the Report, that it was a flawed, partisan political document, which Dr Karl acknowledged “largely ignores the impact of climate change”, there was an outcry as to the aforementioned endorsement and promotion by Dr Karl.

Dr Karl then sought to distance himself from his prior support for and endorsement of the Report.

Commentary
Dr Karl knew or ought to have known the significance of accepting an engagement to endorse a Report which he had not read. His reputation, such as it was, was sought to lend credence to the Report. Endorsing something he had not read seems to be a pretty significant error of judgment on his part. Endorse the principles you say the Report promotes, if you wish, but do not endorse the Report without reading it.

His change of position, contrition and decision “to donate any moneys received from the IGR campaign to needy Government schools” can be said to be hollow, as it only came after significant public disquiet was expressed about his endorsement of the IGR. That change of position etc can be said to be not an act he initiated.

Whilst his actions can be said to have the benefit of now focussing attention on the problems with the IGR, the damage his reputation has suffered can also be said to be significant. The lack of disclosure of the fact that Dr Karl had not read the Report he was apparently endorsing is a relevant issue. Paid blind endorsements are not worth much in terms of credibility. Integrity free endorsements should be accompanied by an appropriate warning

The impact of the aforementioned blind endorsement upon his reputation is significant. Whatever Dr Karl may purport to say now can be said to be tainted by his poor judgment and lack of research attendant with his paid endorsement of the IGR. His apparently afterthought-inspired contrition will do little to redeem his reputation in the eyes of some people.

When you look at his history and discover that in 2007 he made a statement about climate change that he subsequently admitted was wrong, his credibility takes a further battering.

His most recent foray into commentary should have been informed by his earlier experiences.

In Lee & Anor v State of Queensland [2015] QDC 83 McGill SC DCJ at para [43] found that he was not prepared to accept the evidence of the Plaintiff Mr Swindles “as reliable unless it was independently supported, or inherently probable”. Using the Lee case as a guide, independent corroboration of the contention Dr Karl seeks to make may be required in future before some people are prepared to accept that contention.

The fact that by his actions Dr Karl has educated people as to:

• the flaws in the IGR;
• the process by which the government sought to promote it; and
• the damage a paid blind endorsement without any accompanying disclosure can do to a reputation,

may be little consolation to him as he reflects upon putting his reputation in jeopardy and in circumstances which were entirely avoidable.