Apart from Heydon’s decision to continue as RC, the most important part of his rejection of the apprehended bias claim is the detailed analysis he made of the submissions by unions. That analysis can fairly be said to have left the unions standing on only one leg, at least from a legal perspective. His 67 page judgement justifying his decision sets out three reasons, argued in detail:
First reason: no apprehension of intention to raise funds or generate support.
Second reason: no logical connection between any predisposition and the issues.
Third reason: no reason to find incapacity to deal with issues impartially.
To my mind, Heydon’s argumentation supporting these rejection reasons makes it unlikely that the unions will take the apprehended bias to the Federal Court, which they are still contemplating but which would be a costly exercise. The CFMEU, which is the biggest potential loser, might risk doing so given the large assets it has accumulated from employers, but it would have difficulty in persuading the other unions which made submissions to Heydon to join in a submission to the Federal Court.
The former head of AWU, Bill Shorten, appears now to be obeying orders from the O’Connor brothers (one being the Shadow Minister for Workplace Relations and the other head of CFMEU), with Labor seeking to pass a motion in the Senate calling (futiley) on the Governor General to dismiss Heydon. Such action must surely further reduce Shorten’s credibility.
As to the Fairfax press, it seems to be experiencing difficulty in making up its mind. The attached published SMH editorial, headed weirdly Dyson Heydon stays – and everyone else loses, differs from the digital version but accepts Heydon’s analysis (“we accept and respect his ruling”). It adds that it “rejects the cheap politics of Labor’s plans to have the Senate ask the Governor General to remove him”. But it also makes the rather pathetic plea that Heydon “should have stood aside to salvage the commission’s good work and rapidly diminishing reputation”.
The AFR presents a very short editorial headed Little union comfort in Dyson ruling and supports Heydon’s rulings.
As might be expected, The Australian’s editorial also supports Heydon (Heydon right to throw out trade union challenge). It also draws attention to the extraction of money from employers in the construction industry by unions, although it should have noted that such extraction extends across many other industries too. Importantly, it concludes by pointing out that “the obvious response of a confident Abbott government would be to rise to the challenge and declare the next election as a plebiscite on trade union power”.
This is similar to my suggestion in previous Commentaries that there is now a major opportunity for Abbott to announce that after the next election he will implement major changes to the existing regulatory arrangements. Several have expressed the view to me that Abbott will not be prepared (or allowed) to take that risk. But unless he announces a major policy change the polling seems set to remain poor and the risk of a challenge to his leadership will become higher. The present situation provides not simply an opportunity: it is a golden opportunity.