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Justice, Politics and the Royal Commission Show

Dyson Heydon’s deliberations on whether or not he should stay at the helm of the Trade Union Royal Commission (TURC) after claims of apprehended bias are over. The former High Court Justice has dismissed the application from union lawyers and will continue in the role the Abbott Government appointed him to.

But the story it would seem is not yet over. The unions will consider a court appeal. The ALP, who stand to lose some political skin from the TURC, though probably not enough to lose the 2016 election, have decided that asking the Governor-General to remove Heydon is the way to go. It has been foreshadowed that the Australian Labor Party will couple this with attacks on the Liberal Party for their part in this situation, when parliament resumes from September 7.

In terms of principles of natural justice it is quite clear what should have happened in this instance. It is clear to almost anyone, except for the most wilfully blind supporters of the right side of politics that former Justice Heydon should have recused himself from further hearings of this commission. This would have blunted any attacks from Bill Shorten and the Labor Party. That Commissioner Heydon cancelled his appearance at the fundraiser at a later stage is irrelevant. The decision to say yes to attending the function in the first place says more than enough.

However, there is absolutely no case to say that the Royal Commission should not go ahead altogether. This is particularly the case now that the inquiry has been running for a number of months and is doing vital work, uncovering just how murky the world of industrial relations can be. Renewed calls from Labor for a police taskforce instead of the Royal Commission are a bit rich, considering they announced a commission of inquiry the topic of which similarly could have been examined by a special police body.

Back on the justice side of the equation, the Abbott Government could have used this opportunity to widen the terms of reference to include all forms of corrupt practices across institutions in the industrial relations space. If this had been done, then any squealing from the unions or the ALP about the continuation of the royal commission could have been met with derisory laughter, from both the Coalition and the electorate.

With an election less than a year away, it is worth a brief look at what the current state of affairs means for both the Coalition and Bill Shorten’s ALP.

The Coalition may gain a small amount of much needed political traction from the findings of the Royal Commission, particularly if there are further discoveries made about union activities during Bill Shorten’s time as a union representative. But it will not prove an electoral game-changer. A shift in electoral fortunes could only come from more substantive policy and political narrative changes made by the Abbott Government. That would have had to begin well before the people stopped listening. This critical point was likely reached more than 6 months ago.

The ALP is likely to suffer mildly as a result of future TURC hearings. There will be some more unease about the leadership of Bill Shorten, but the polls and the new rules around leadership challenges will make a change on that front almost an impossibility.

The Trade Union Royal Commission will not feature high on the list of reasons the Abbott Government will probably lose power in 2016. In fact to say it will be a feature at all is nonsense. This area of politics is generally one where most have a worldview firmly locked in on one side of the debate or the other.

There will be some more noise on this issue over the coming weeks, but it will likely not last. It is hard to sustain attacks on things which do not have wide appeal.

Australian politics will meander toward the next misstep or missteps. With every day we will get closer to the 2016 election. And the show that is the Trade Union Royal Commission will continue, with Dyson Heydon likely to remain in the chair.

Hawke-Like in Appearance But Not in Reality

Last week the Business Council of Australia called for it and today Prime Minister Julia Gillard reached out and offered it. Today the Gillard Government wrote to the Business Council of Australia and the Australian Council of Trade Unions offering what at first glance has the appearance of an olive branch to the business community from the Labor Government. The Prime Minister has now sought to give business, the unions and community groups the chance to participate in a national forum, to be named the National Economic Reform Panel.

The proposal from the Prime Minister is an attempt to get business onside, or at least to get them in closer proximity to the unions on a more regular basis than is currently the case. At present, aside from issue-specific working groups and committees, the relationship is limited to largely informal communications between the two interest groups.

The idea of the National Economic Reform Panel is said to be in the spirit of the Hawke Government Accords which saw unions make concessions in order to benefit from other policy changes.

The reality is more than likely going to be quite different. The only likely similarity is the make-up of the panel. They may agree from time-to-time in certain areas but overall, little compromise, except perhaps on taxation, is likely to be achieved.

The idea that the Gillard Government, through this panel, can achieve trade-offs similar to the ones that characterised the agreements which Bob Hawke’s government reached is just fanciful. Prime Minister Hawke’s agreements between business and the union movement were much deeper and broader than any Julia Gillard and her government may achieve, both in theory and practice.

An important part of negotiating is that nothing, within reason, be left off the table from the outset. However, it appears that changes in certain areas of law, specifically industrial relations, will not be on the table from the outset. That’s all fixed according to the government.

Of course, the unions are unlikely to budge on industrial relations in any case, unless it results in significant new power for their side of the bargaining table. But law changes that do not impact negatively on wages and conditions for employees must have a place at the meetings of this tripartite group.

It would appear likely that most of the changes that the panel would find itself agreeing to would just tinker around the edges of existing policy. Some existing rules and regulations and government policy would undoubtedly remain untouched as a result of negotiations between the three parties. So then unilateral government action would be required from time-to-time, defeating the purpose of such a panel.

Instead of being more like the accords under Hawke’s Labor Party, it appears, according to the letter that talks between business, the unions and community groups will have a central focus around how to implement the key recommendations of the Australia in the Asian Century White Paper. To this end, the idea of the panel is, in a way, more issue-specific again than about the broader economic challenges in the future which involves much more than just looking to Asia and thinking about how it is we can best compete in our region, the Asia-Pacific.

While the Asian Century White Paper does allude to domestic decisions that need to be made and implemented to compete with Asia in the Asian region, some of these are quite Asia-specific and we cannot spend too much time as a nation focusing on one geographical area. Other areas of the world that we engage with have a diverse range of needs quite independent to that of the Asia-Pacific and Indo-Pacific regions.

The timing of the announcement and what that implies suggests that the broader intent of the negotiating platform flagged by the Prime Minister has come too late, despite the fact that the BCA boss called for the panel as recently as last week.

The announcement of the reform group comes over two years into the second term of the Rudd-Gillard Government. Many of the key reform decisions have already left the parliament having been made into law. Some of these economic changes have had more business input than others, some with quite limited formal and direct negotiation with peak business bodies and company representatives.

Another certainty is that just about any agreed action in the near future faces the likely prospect of not being implemented. The budget is in a poor position and appears as though it will get worse before it gets better. So, in effect, business, the unions and community groups would be working towards having the government acknowledge aspirations in the near future at least, rather than implementing dramatic actions.

A nice symbol that gives the false impression of cooperation and a willingness to negotiate, but the reality underlying today’s decision is something almost completely different.

Perhaps it would have been better if the call to formal and ongoing discussions from the government had not come after five years of aggression towards certain areas of the business community from the same administration.

The likely outcome of discussions however, would probably be much the same.

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