Monthly Archives: October 2015

HOW DYSON HEYDON RULED ON HIMSELF: IT’S CONVOLUTED

 

 

After several false starts, we finally learnt this week that Mr Dyson Heydon will continue in his role presiding over the Royal Commission into Trade Union Governance and Corruption, despite submissions of apprehended bias, as determined by himself.

The reasons for his decision, presumably written in long hand, run to some 67 pages. Few would find it entertaining reading. As befits his reputation as a black letter law man, the document is wordy and complex, replete with minute detail as to what the Commissioner perceives to be the relevant facts and law.

As with any text, the reasons also contain unwritten assumptions. For instance, the Commissioner assumes that it is possible for a decision maker such as himself to bring an objective and neutral mind to his decision-making tasks. This assumption pervades our legal system, yet is questionable at best; and at worst, it is simply untrue.

Are judges impartial?

Consider the fact that decisions in lower courts are routinely overturned on appeal; or that a unanimous bench (such as a 7-0 decision of the High Court), is extraordinarily unusual. Judges make these decisions, and judges all have the same basic task, which is to apply the law to the facts and circumstances of the case at hand. If all judges are impartially carrying out their duties, in accordance with consistent legal reasoning and training, how to explain successful appeals and dissenting judgements?

Human error is inevitable, but if this was the only explanation, we would not see High Court cases almost always decided by majority (rather than unanimity). So there must be some other cause or causes. To explain the parallel universe of the legal system, we must look outside the legal system; and bring understandings from sociology, intersectionalism, and cultural studies to our understanding of the law.

Every person is a product of their background and training, of their experiences and their knowledge of the world. It is unlikely that Dyson Heydon has reflected on the social facts of his demographic privilege. There is no evidence that Heydon is alert to the dominance of white men in the process of defining what is or is not a binding precedent, for example. The harsh realities of oppressive social constructs – such as sexism or racism or homophobia – are not part of Heydon’s lived experience. He can only understand such prejudices, harms, and wrongs in the abstract.

This may seem obvious, but it goes to the heart of whether the 67 pages of reasons as to why Heydon will remain as Royal Commissioner are based on a false assumption. To accept his reasons for his decision, it is necessary to accept the claim that Heydon can bring a neutral mind, and rule impartially, on submissions as to his own apprehended bias.

 

Is Dyson Heydon a judge?

The claims made in support of this proposition are that it is the norm, at law, for judges to decide on their own recusal in the first instance. This is accurate. If a judge rules against his or her own recusal and a party is still troubled about apprehended bias, the next step is an application to a higher court, where another judge will rule on the question. So yes, this is common legal practice, which does not make it right, but it is lawful.

The ground for making a distinction between Heydon and all the claims made about him based on his judicial experience, or on what judges do, is this: Heydon is not a judge. So what? I hear you ask. He was a judge, a High Court judge, he retains all his judicial knowledge. And indeed he does.

But Heydon is ineligible to be a judge in 2015, under s. 72 of the Australian Constitution. Second only to the overwhelming vote to amend the race power in 1967, Australians voted a resounding yes in 1977 to make it compulsory for judges to retire at 70 years of age. Incidentally, that referendum co-incided with Sir Garfield Barwick’s tenure as Chief Justice of the High Court and operated prospectively, so Barwick was not subject to the amendment and stayed on until he was 77 years old.

Either way, and despite our Prime Minister’s apparently cavalier attitude to the Australian Constitution, it would be unconstitutional to re-commission Heydon as a judge. So Heydon is not a judge.

 

Is Commissioner Heydon impartial?

Heydon is however an appointee of the Abbott government, commissioned by letters patent signed by the Governor-General, to investigate ‘governance and corruption’ in trade unions. There are important implications here – in law, and in real life.

The oldest political party in Australia was formed as the workers’ party, the political branch of organised labour, otherwise known as trade unions. This is a perfectly legitimate political activity, and if it were not, the conservative forces would have abolished it by now. Sir Garfield Barwick himself, when Chief Justice of the High Court of Australia, advised then-Governor General Kerr on dismissing Gough Whitlam. The immortalised Bob Menzies tried to abolish the Communist Party – and was defeated by referendum.

It is folly to underestimate the irrational anger of conservatives when they do not get their way. It is important, also, to note that referenda are powerful. We should be alert to this as Abbott throws around thought bubbles on marriage equality and recognition of First Peoples.

So. Any attempt to obscure the fact that Heydon is presiding over an investigation into Abbott’s political opponents is sophistry of the worst kind. Our two-party adversarial system is borrowed from Westminster, the English having already imposed the ‘absolute executive power’ model (in the form of Governors), on the true owners of the continent and her islands.

As Her Majesty’s Loyal Opposition, the Labor Party in 2015 has a duty to hold the government to account and propose alternative policies, so the people have a choice in a democratic election. Again, this is a conventionally legitimate role in a Westminster system of government. Yet Abbott, ever acting like an Opposition leader, establishes a Royal Commission to look into the governance and corruption of trade unions.

The terms of reference, as was ever thus, define the findings. That there is corruption among trade unions is not left open to the evidence but is instead a pre-determined finding. (The terms of reference do not, however, point to with whom these corrupt dealings are done. Other trade unions, perhaps?)

In addition to the terms of the reference and the Constitution, the evidence suggests that Heydon is not alert to his own privilege, politics, and ideological beliefs. This is tricky territory. Heydon’s privilege is a matter of fact, shown by his race, sex, family background, and so on. We only have to identify the known empirical facts on inherited privilege such as white male property ownership, income, and power-holding positions from politics to the judiciary, professorships, corporate boards, and prominent media platforms. See for example Dylan Matthews’ analysis of Trump’s wealth and lack of investment skills here and George Monbiot on Mitt Romney, Gina Rinehart and other perpetuators of ‘self-made man’ mythology here.

 

Legal reasoning for non-lawyers

While the social facts are known on how our father’s status is a determinant of our own, (for example, Heydon’s father was a senior public servant under the Menzies government, when Garfield Barwick was Attorney General) assertions about Heydon’s politics or ideological beliefs are not matters of fact.

Heydon has not expressly stated that he is a supporter of the Liberal Party. Rather, he has said that accepting an invitation to speak at a Liberal Party fundraiser is not necessarily, in and of itself, indicative of any political support for the Liberal Party.

Here is how it is done:

 

The definitional question is important because under the Ebner test it is necessary to see whether the selected definition, if the facts indicate that it is applicable, reveals the characteristic and meshes with the issues which it is said may as a result not be decided impartially.

 

Heydon accuses the ACTU submission of imprecision [at 75] because counsel variously described the Barwick dinner as a ‘Liberal Party’ fundraiser, function, and event. Had counsel only described the dinner in one way (a Liberal Party function, say) then Heydon could just as easily have replied that the event was more properly described as a lawyers’ professional event than a Liberal Party one, as indeed [at 79-80] he did.

 

…an address about a topic unrelated to the possible goals of the Party with which the two lawyer groups are associated cannot give rise to an apprehension of bias. In that example there is no proselytizing and no substantial Party activity. In the present case, the additional element must come, if at all, from the suggestion that the Address represents substantial Party activity or involvement in raising funds.

It is a familiar and legitimate technique of legal reasoning to include definitional concerns, for instance when the judge sets out the ‘material’ facts of a case. This defines the parameters within which the case will be decided, what is relevant and what is to be discarded as irrelevant; thereby nudging the ‘legal reasoning’ towards the preferred outcome. The problem is when judges or Commissioners propose that the decisions and reasoning they bring to this mental task is neutral and impartial, or in tune with or inspired by the real world. It isn’t.

For instance, we could try and picture Heydon accepting an invitation to speak at a Greens party fundraiser. Would he? Of course not. But there is no evidence to support that conclusion. The facts are that Heydon did accept the Barwick address invitation and has never spoken at a Greens fundraiser. Or we could look at it the other way: would a Labor lawyer accept an invitation to address the Sir Garfield Barwick dinner? The answer is no, not unless she was extremely gutsy and prepared to turn up in order to attack everything the audience holds dear. How do we know this? Because, in obvious and flagrant breach of the doctrine of the separation of powers, then-Chief Justice of the High Court of Australia, Sir Garfield Barwick, advised then-Governor General Sir John Kerr, on the dismissal of Gough Whitlam.

But at law, this does not prove anything about Heydon’s politics. Back in the real world, it is abundantly evident to anyone who is awake that accepting the invitation to speak at a dinner organised by the Sydney lawyers’ arm of the Liberal Party is strongly indicative of where Heydon sits on the ideological spectrum. Some may even say that accepting the invitation, the facts of his elite background, and the many judicial decisions available on the public record, are conclusive: that from these known facts and decisions, we can conclude that Heydon is a deeply conservative old man.

 

The law and the real world

But this is not how the law thinks. A sociologist could probably be found to agree with this assessment, if they have the courage to upset the establishment. It is in sociology and cultural studies that we find a more accurate understanding of social constructs. Such social constructs include classism, sexism, racism, and homophobia. Or more radically (and more accurately) we might speak of socially constructed systems of oppression that overwhelmingly benefit white male hetero-normative cis-gendered neuro-typical crony capitalists.

The standard response to these claims is that the wealth and comforts of the modern world are products of this system. The answer to this grandiose claim is to identify those groups of human beings who are not in fact the slightest bit comfortable in the modern world; and to ask: if human ingenuity and progress are not for all humans, who is it for? This brings us back to the privileged elites exemplified by men like Dyson Heydon (and Tony Abbott).

These are difficult arguments to put, because the dominant hegemony invisibilises the norm. Few people are raised to recognise that whiteness is privilege. In contrast, many people are trained to recognise that non-whiteness is ‘disadvantage’. This obscures the human agency involved in creating groups of disadvantaged citizens. We have whole swathes of legislation outlawing discrimination on grounds of sex and race, marital or pregnancy status, sexuality or religion or ethnicity. Someone must be perpetuating all these discriminatory practices.

In this context, it becomes undeniable that white men do not experience sexism and racism, and thus can only understand such harmful behaviours in the abstract. We must then ask whether white men are uniquely ill-equipped to make decisions in this area: questions as to discrimination, for example, or in the same general category, questions of prejudice and bias, or impartiality, objectivity and neutrality. Here is what Heydon found:

I have concluded that it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the questions which the work of the Commission requires to be decided.

Lawyers love double negatives, which are deployed to obscure the weaker aspects of convoluted legal argument. If you are reading a legal document and spot a triple negative, pay close attention. It is a signal that the claims are on shaky ground.

Heydon has not concluded that the fair-minded layperson might apprehend that he may bring a partial mind to the resolution of the questions which his role as Commissioner requires that he decide. This torturous re-working of his sentence has a point.

It would be a cinch to find a person on the street who thinks Heydon is biased. A non-lawyer who apprehends that Heydon is biased. Who comprehends that even if they themselves do not necessarily think Heydon is biased, there is a public perception that Heydon might be biased. This is a simple empirical proposition, easily tested by standing on the street and asking people.

But the law does not work this way. It is not established legal practice to ask ordinary people what the ordinary person thinks. Instead, the law creates hypothetical constructs of fair-mindedness and reasonable persons and ordinary bystanders and what-not, all of which are euphemisms for non-lawyers. The law then appoints extremely senior lawyers who are immersed in the law and have been for decades – judges and Royal Commissioners – to pronounce on their own neutrality, according to their learned legal reasoning, as applied to what a hypothetical non-lawyer thinks.

The law then reproduces and hands this process down through the ages, for the law is what the law says the law is, even on the topic of what a made-up non-lawyer is thinking, inside their non-existent non-lawyer head, but without asking the many non-lawyers available to be asked. This is accepted by other lawyers as normal in terms of legal reasoning, because it is the law. Meanwhile, around the country, actual fair-minded laypersons are tearing at their ears and crying ‘what did he just say? Was that a double or triple negative? How is he assessing his own neutrality?’ And, also echoing down through the ages, ‘The law is an ass!’

 

 

 

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On Democratic Principle, the Fourth Estate, and visiting Nauru

The evidence is in. Any optimism for noble principle – as enunciated by the Universal Declaration of Human Rights, the 1951 Refugee Convention, the Australian Constitution, the Rule of Law itself – is entirely misplaced.

As is to be expected under neoliberal policy settings, this month has seen disturbing attacks on separation of powers, human rights, and, such as it is, Rule of Law. To anyone who tries to avoid terms like “Orwellian”, or “police state” (or worse), or breaching Godwin’s law.: here is what is really going on.

Realpolitik is not cynicism.

There is a small-l-liberal-social-democratic heart that still beats away in this chest. I blame early indoctrination and an increasingly desperate and misplaced optimism that not every single liberal ideal has been a lie from day one, as well as viciously attacked – and those attacks also lied about – by its own representatives, those who call themselves liberals. Yet for centuries, there has been nothing liberal about liberalism.

Here is a hugely abridged timeline, which begins post-Tampa and September 11, events and legal proceedings which had indescribably heavy impact on the gross human rights violations we see today, as committed and promoted by successive governments. For yet more context on what is happening right now, see this post from a year ago.

2001: Immigration detention camps established on Nauru as part of the Howard government ‘Pacific Solution’.

2008: Immigration detention camps on Nauru closed by the Rudd government. The asylum seekers who were there at the time were granted residency in Australia.

August 2012: Immigration detention camps on Nauru re-opened by the Gillard government.

September 2012 onwards: asylum seekers who arrived in Australia by boat transferred to Nauru (as well as to Manus island) by the Australian government.

Saturday 3 October 2015: Nauru government announces that asylum seekers would be allowed to come and go from the detention centre without any restrictions from Monday.

Monday 5 October 2015: Nauru government announces it will process all asylum seekers in offshore detention ‘within the next week’.

Tuesday 6 October 2015: Reports being to emerge that the High Court of Australia will examine the legality of off-shore detention.

Wednesday 7 October 2015: High Court begins hearing submissions that the Australian government is effectively responsible for the detention of people we transfer to Nauru.

Thursday 8 October 2015: the two-day hearing continues. The government solicitor argues that the (four day old) announcement by the Nauruan government about “opening camps” and “processing asylum seekers within a week” meant that the plaintiff was not “detained”.

Sunday 11 October 2015: A 23 year old Somalian refugee known as Abyan is flown to Brisbane. Subsequent debate is horrendously dehumanising, but the uncontested facts are that Abyan is pregnant and she was flown to Australia because abortion is illegal on Nauru. The urgency of this medical procedure is, in all the circumstances, widely accepted to be on the grounds that she was raped and the rapist caused the pregnancy.

Friday 16 October 2015: Lawyers acting on behalf of Abyan file an injunction in the Federal Court to seek an order that the Australian government not force her to return to Nauru.

Friday 16 October 2015: The Australian government flies Abyan back to Nauru by chartered military aircraft.

Monday 19 October 2015: Reports appear that a Murdoch media employee, Chris Kenny, who holds positions across print (The Australian newspaper) and broadcast (Sky channel) arms of the corporation, has obtained access to detention centres, and spoken to asylum seekers and refugees, on Nauru.

Tuesday 20 October 2015: More reports, including the uncontested facts that Kenny, escorted by armed guards, went to where Abyan was staying, and questioned her about rape.

There is more, much more, and I would usually expend considerable energy on interrogating the viciousness of our polity; the apologia and faux balance of our mainstream media; the vicious misogyny and racism that we perpetuate. I would shout how this horror violates the most fundamental human rights of Abyan, and thus of black people and of woman everywhere.

But enough. There comes a point, long since passed, where any comment, including expressions of disgust at our government and those aggressively promoting its horrendous actions, are further violating and erasing the humanity of Abyan herself.

What we should be pondering now is that we claim to have a national culture, and values. We say we adhere to such high falutin ideas as liberal democracy, accountability, and the rule of law. It is said that we ‘inherited’ the Westminster system, and with it, the doctrine of separation of powers. In fact these noble ideas (by which I mean lies told by the nobility in England) were forced on this country and her peoples.

There are principles attached to doctrine. It is supposed to have content, and meaning. For example, the legislature passes a law. The executive in cabinet – that is, the minister – delegates implementation of this law to the executive government – that is, public servants (such as the Australian Federal Police). If that law is challenged (for example by counsel for concerned people, in a democracy) the High Court of Australia, in its original jurisdiction, is meant to be an independent tribunal of fact, which hears and decides on the legality of our government’s laws and actions under those laws.

In theory, in a liberal democracy, the media is the Fourth Estate. It has a job. A role. Its job is governed by public interest, and professional journalist ethics. The public has a right to know, for without information we can not decide for whom to vote, in a free and democratic election.

By the way, the first, second and third estates, are the church, the nobility, and the commons. As in, the House of Commons and the upper house members, who they actually call Lords, in England. Those who – as the House of Lords and the Privy Council – double as the court of highest appeal. Have we ever had separation of church and state, separation of legislative and judiciary powers? The answer is no, we have not. Not in the past, and if we continue to be gullible and naïve and invest in ahistorical narratives that focus on the daily outrage, not in the present or future either. Our so-called principles, the ones we teach and reproduce and promulgate and base life-threatening and life-destroying decisions on – are a sham. Non-existent. An empty shell, and a danger to (almost) all.

This, and much more, is what the white feeding frenzy around Nauru, and in particular around a single traumatised young black woman, is about. We white liberal-loving folk are in melt down. We thought our governments were basically good. They are not. We thought our governments, essentially, had our best interests at heart. Wrong. Take a look at the history of abolition, of womens suffrage. Take a look at Malcolm Turnbull, a man who has speechified on climate change and a republic and same sex marriage as though he would stake his career on addressing these urgent matters, the urgency being the destruction of the planet, and of human rights and interests. He will not. He will do the opposite.

Meanwhile, a young woman is repeatedly violated by all involved. The chatter will not cease. I admit my own complicity in this horror. What is the answer? Is there an answer? How is it that an identifiable group of people – and rich white married cishet ablist Christian neurotypical men are a tiny minority – are still in charge of households, corporations, countries, the planet? When they are demonstrably terrible at their job? Incapable of running any jurisdiction without harming everyone else?

Wherever we look in Australia, this dominant hegemony who set the agenda – in the legislature, the executive, the judiciary and the fourth estate – will continue doing what they do, and to be handsomely rewarded for their actions.

It is possible that the human rights lawyers fighting the detention and control case in the High Court will succeed. They have a strong case, and I hope that they win. Lawyers can be heroes too. But being a hero is tinkering at the edges. If they win, they will celebrate. Something will change. Many other things will not. The destruction of the planet, and of most of humanity, will go on.