Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Quick post: Officials, fundraisers, and bellyfeel intuitions about bias

I am biased.  I’m conservative and grew up as an educated, straight, white male.  The attacks on Dyson Heydon over the past few days really smell like an attempt by the Left to discredit the Royal Commission into Trade Union Corruption.  This really shouldn’t be necessary — there is already enough material to suggest that TURC is a mean-spirited endeavour, instigated by the Abbott Government to kick up dirt.

But the public discussion about Heydon picks up themes that we have been seeing over the past few weeks about officials (ministers, statutory officers, &c.) and what activities they can undertake without enlivening allegations of impropriety.  Although the old rule of thumb is that it should be able to pass public scrutiny, public opinion is clearly shifting towards a narrower, more stringent (borderline stingy) interpretation of what’s permissible.

Let’s deal with the evidential aspects of the Heydon case because they are, in a sense, not the real issue.  There’s some good evidence to suggest that Heydon did not know that he was going to be delivering a speech as a fundraising activity for the Liberal Party.  The same evidence demonstrates that Heydon knew that the function was being held by the Liberal Party.  Either way, Heydon has decided that it is inappropriate for him to continue to be involved with delivering the speech while he remains the Commissioner for TURC.

This draws out two different positions.

A: An official delivers a speech to a party fundraiser.

B: An official delivers a speech to a party event that is not a fundraiser.

We can add a few more to this to flesh out the analysis.

C: An official delivers a speech to a fundraising event held by an organisation closely affiliated with a political party.

D: An official delivers a speech to a non-fundraising event held by an organisation closely affiliated with a political party.

E: An official delivers a speech to a fundraising event held by an organisation that has a profile of engaging with political issues.

F: An official delivers a speech to a non-fundraising event held by an organisation that has a profile of engaging with political issues.

We could argue that C-F are unnecessary because of the unique nature of TURC: because of the close link between the unions and the Opposition (the ALP), any sort of interaction with the Liberal Party would be tantamount to a perceived bias by the Commissioner.  Perhaps this is an ungenerous characterisation.  Maybe it’s not any sort of interaction, but those which are high profile.  Giving a speech at a Liberal Party event is a higher order interaction with the Liberal Party than simply having a chat with a minister in the margins of some social event.

But this leaves us on a fruitless branch relying heavily upon the nature of TURC.  If TURC is legitimate and not a politically motivated attack on the ALP, then we can discuss if Heydon might be able to attend a party function in his personal capacity.  But if it is a politically motivated attack on the ALP, then it doesn’t matter whether or not Heydon is conflicted, nobody should be commissioner at all.  So to argue that Heydon shouldn’t be at the Liberal Party function because of the nature of TURC is simply to say that TURC is illegitimate.

The deeper problem with the argument is that it’s not really consistent with similar conversations we have been having recently about this conflict.  Was the Speaker attending a Liberal Party fundraiser (by helicopter) or was it Bronwyn Bishop?  Beneath the controversy about using a damn helicopter to attend her parties, the question was about the capacity in which she attended the function.  But nobody was seriously suggesting that the Speaker ought not to be attending the function, only whether or not it was official business.  Similarly, nobody is suggesting that Heydon was to attend the Liberal Party function as Commissioner, but there is still a feeling that it is inappropriate for him to attend because he is Commissioner.

In other words, if there’s something serious to the intuition that Heydon shouldn’t attend Liberal Party functions, there must be something more to it than merely the exceptional nature of TURC.  That said, I do think this is the best explanation for the outrage.  Not least because it looks eerily similar to the outrage about Gillian Triggs releasing the Immigration Detention Report.  Consider also the Costigan Commission which was accused of being a politically-motivated attack on the Unions, until it started investigating Kerry Packer for tax evasion and associations with organised crime — all inquiries are prejudiced until we agree with their conclusions.

Now we can return to the list.  Intuitively, it looks like a descending order of seriousness.  If you think that A is morally fine, ceteris paribus, then nothing on the list should be a cause of concern.  Conversely, if you think that F is dubious, then the entire list is.

We often intuit things about officials and the ever present world of threats to their impartiality.  Unto them, we hand various powers that we expect to be used for the benefit of the public.  If officials are even seen to be swayed by the influences of vested interests, then we question the wisdom of granting somebody the powers in the first place.  Our intuitions in this regard are shaped by a relentless libertarian campaign to discourage us from handing any formal powers to anybody: the price of corruption is too high to even risk giving somebody authority over another.  Being able to see past the constant assault on our intuitions is difficult in this environment.

But what does ‘impartiality’ for a commissioner mean?  People have noted Heydon’s comments about a judge’s impartiality and have tried to link that to the impartiality required for a commissioner.  Perhaps the problem is that ‘impartiality’ means different things in different contexts.  Australia has had a sitting member of parliament head a Royal Commission, but has never had a sitting member of parliament as a justice of the High Court (notwithstanding s 44 of the Constitution).

We would consider it entirely inappropriate for a judge to give a birthday speech for a defendant, but would we see it as inappropriate for the same judge to deliver a keynote address at a Liberal Party function while a case was being heard about a minister’s use of power?  But stretch this to some bureaucrat working in an area entirely unrelated to the defendant’s alleged crime: would we still consider it inappropriate for them to give the birthday speech simply because the State was prosecuting?

And this gets us further into the list above.  It’s clear that some officials have different calls upon their integrity.  A judge, who sanctions the use of State violence against individuals, has a higher standard to meet than some other officials.  And it also appears that we consider people to be distinct from particular roles that they hold.  The bureaucrat isn’t attending the party function in their capacity as a bureaucrat, so long as the bureaucrat role did not conflict with the personal capacity.

And it’s in this gray area that Heydon finds himself.  Did his role as commissioner conflict with his personal capacity?  The answer doesn’t seem to be a straightforward ‘yes’.  If the commission is a legitimate inquiry into union corruption, then what Heydon does in his personal capacity is irrelevant.  Heydon will make a list of recommendations which parliament can debate.  Even if Heydon never received an invitation to the Liberal Party function, parliamentary debate of the recommendations would still (rightly) discuss the extent to which Heydon’s personal feelings about issues affected his judgement.

If we want to argue anything stronger than that, then we have to start calling into question the behaviour of other officials whom we intuitively think are in the clear.  Tim Wilson, Human Rights Commissioner, refuses to be part of party fundraisers (A), but does give addresses at party events (B).  Tim Soutphommasane, Racial Discrimination Commissioner, gave a speech at a fundraising body for a politically active human rights centre (E).  And so on and so forth.  And then we get back to the start with ministers attending party fundraisers in their personal capacities.

Ultimately, it’s a matter for public judgement, but it would be a shame if we became conditioned to react to all of these situations with the libertarian ‘no State power is legitimate’ position and consider every remote possibility of bias to be a reason not to bestow powers upon officials.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: