HM The Queen risks her life to attend VJ Day services while Obama holidays, releases Spotify playlist
Josh Bornstein, Principal, Maurice Blackburn acts for AWU, HSU NSW, TWU & CEPU - owes TURC a speedy apology

The ACTU finds an independent, unbiased Judge to conduct the enquiry into union governance

John Dyson Heydon AC QC has a blemish free history as a lawyer and ultimately a Judge of the High Court of Australia.  In recognition of his distinction, he was asked to deliver an important annual legal fraternity speech honouring the former Attorney General Sir Garfield Barwick.    I've been told that the Sir Garfield Barwick address is:

a professional development event for lawyers.  It is open, transparent, thought-provoking, ethical and inspirational, reflecting Barwick’s character.

Last year his former colleague the retired High Court Judge Murray Gleeson had the honour - here's the NSW Bar Council's magazine with the transcript from 2014:

Sir Garfield was a Liberal MP.  While the bar council selects the orator, the Liberal Party lawyers branch is actively involved in the dinner.  It issues invitations in Liberal Party livery.    As soon as Dyson Heydon was made aware of the potential conflict of interest in the Liberal Party fundraising link to the dinner,  he withdrew from delivering the speech.

That was it, crisis over.   But that  was enough for grave media reports to lead the news for several days with calls for his Commission of Enquiry's termination.  At most the affair was based on a potential conflict of interest, identified and removed before an actual conflict was triggered.

The ACTU issued a statement on Friday which said in part:

The ACTU is calling on Tony Abbott to immediately terminate the Royal Commission into trade unions given the appearance of bias by Justice Dyson Heydon’s acceptance of a guest speaker role at a Liberal Party fundraiser.

ACTU Secretary Dave Oliver and President Ged Kearney have written to the Prime Minister calling for immediate action.

This appearance of bias and partisan behaviour by Justice Heydon taints any and all findings of the Royal Commission and it must be terminated.

Failure to act by Tony Abbott is out of step with community expectations of our elected officials and calls into question the Prime Minister’s and the Federal Government’s judgement.

Really.   The threshold for the ACTU is the "appearance of bias".

Let's look at how the ACTU applies that threshold to itself.

In 2012 the ACTU and union movement was in trouble.  The fraud allegations against Federal MP Craig Thomson and the former ALP President and HSU chief Michael Williamson were leading the news day in and day out.     Unions were on the nose and the ACTU knew it.

The situation got worse during 2012 with the AWU Scandal  gaining mileage. Ralph Blewitt made statements to Victoria Police and former Slater and Gordon partner Nick Styant Brown released the transcript of Julia Gillard's departure interview from the firm.   The CFMEU too was in the news for all the wrong thuggish reasons.

On 16 May 2012 the ACTU announced its own enquiry into union governance in an effort to head off an external one such as a Royal Commission.   Here's the extract from the ACTU 2012 Council which authorised an:

  1. independent Panel to consider and report on best practice standards of governance for Australian unions in the 21st century.

  2. The panel members will be:
    (Chair) The Hon. Rod Madgwick - Former Judge of the Federal Court of Australia Professor Danny Samson - Melbourne University Department of Management Ms. Judith Bornstein, Victorian Bar
    Mr. Graeme Russell, CEO First Super
    Executive Officer: Assistant Secretary Tim Lyons

  3. Without limiting its work the panel will consider the experience of national unions and branches in the current regulatory environment and existing governance standards and may make recommendations on the following:

    1. Comparative good governance standards in the Australian not-for profit / NGO sectors (and where relevant corporate Australia) and Global standards of trade union governance;

    2. Transparency and accountability in relation to finances (including remuneration) and risk management (including the management of conflicts of interest);

    3. Financial controls and procedures (including income, membership systems, expenditure, procurement, investments & audits);

    4. Member contact, complaints handling & grievance / dispute procedures;

    5. Appropriate training standards and programs in relation to governance issues for Officers (including Committee of Management members); and

    6. The respective roles for the ACTU, TLCs, National Offices and Branches.

  4. All Affiliates & union members will be invited to contribute to the Panel’s work. The Panel will provide a report to the ACTU Officers for consideration by the Executive. The Report will be publicly released. 

In the ACTU's own words it was important that the Panel be "independent" and without a perception of bias.

Here's independent Judge Rod Madgwick appearing in this ACTU television commercial from the tail end of the Howard WorkChoices era.   

I'll see your John Dyson Heydon perception of bias and raise it one motza of a Rod Madgwick dyed in the wool Labor Party/union ad making hero.   I'll follow up with more of Rod Madgwick's Labor royalty credentials in a separate post.

The Panel's report was released on 6 March, 2013 a like is here:

Given what we've heard in daily public hearings at the Royal Commission into union corruption and the contents of its two volume interim report, the ACTU Panel's report is sublimely ridiculous.

Here's the ACTU's press release - it boils down to 2 bad eggs, Williamson and Thomson - even Bruce Wilson and Ralph escaped being mentioned.

Screen Shot 2015-08-16 at 6.46.32 am Screen Shot 2015-08-16 at 6.46.47 am

A few pieces of Rod Madgwick fantasyland report caught my attention.

Actu 2
Disclosure of policy is likely to do more to prevent malpractice than any amount of punishment?   The corollary of that seems to be that penalties are not needed, just disclose the policy and Bill's your uncle.

This next comment, however, is a little disturbing for me.

From 1995 until 2002, His Honour Justice Rod Madgwick presided over matters involving defalcation and invalidities in the conduct of the AWU's affairs.   I can find no disclosure of His Honour's involvement in that matter in this report.   The report goes to great pains to single out the alleged crimes of Michael Williamson and Craig Thomson MP and to describe in great detail the malfeasance at the HSU.

The Fin Review opens its report with this summary paragraph

The financial scandals in the Health Services Union did immense harm to the reputation of unions but most are honestly run, according to a review of union governance commissioned by the Australian Council of Trade Unions

The Australian with this

UNIONS will not be compelled to implement new governance standards recommended by an ACTU-commissioned panel set up in the wake of the Health Services Union scandal.

The financial scandals in the Health Services Union did immense harm to the reputation of unions but most are honestly run, according to a review of union governance commissioned by the Australian Council of Trade Unions

Then there is this single reference to circumstances that could reasonably be seen to be The AWU Scandal, now the subject of a well-publicised Victoria Police investigation.   The union's name is helpfully avoided, as is the involvement of the current Prime Minister in the scandal.

Actu report awu scandal
His Honour Judge Madgwick was the judge who presided over that case.   He made decisions and Orders in the matter.  I would have thought a disclosure in that regard, and a note to the report setting out His Honours Judgement (if any) and Orders would have been an important inclusion to the Report.

I find it difficult to accept the Report's characterisation of the scandal, currently the subject of a full-blown Major Fraud Squad enquiry as "alleged large scale defalcation (embezzlement of money) by a senior branch officer and another official".   Compared and contrasted with the treatment focussed entirely on the HSU it seems a significant oversight, particularly in view of the Committee's recommendations about sunlight and openness.

The Committee also expresses its vote of no confidence in meting out punishment to offenders.

Actu gaol no deterrent
Fear of the law or punishment will not hold them back.   The Report links to this Sydney Morning Herald article

THE Chief Justice has made a thinly veiled call for the state government to change sentencing laws, saying the notion that longer prison terms deter crime is ''fiction''.

The impact of an individual's sentence on the likelihood that someone else will commit a similar crime in the future - known as ''general deterrence'' - is one of the factors judges have to consider when sentencing a criminal.

But Chief Justice Tom Bathurst said there was no ''persuasive evidence that it works''.

Therefore, it was important to reconsider whether deterrence should continue to have a role in sentencing, he told the NSW Legal Aid criminal law conference yesterday.

Read more:

So the union movement's woes are almost wholly attributable to two people, Michael Williamson and Craig Thomson.   No more investigations are needed - just the overt adoption of new "best practice" governance procedures.

And don't mention the AWU.   Even though Judge Rod Madgwick presided over the civil case involving that matter in the 1990s.

This is the Committee's model for how a good modern union should be run.   Astute observers may note the absence of any external review - the model of a modern major union requires no outside observers.

Union model management

I'll republish a little more about Rod Madgwick and his early Labor links (he was very active in the branches and stood for the Federal Seat of Barton) during the day.