Government Widens Terms Of Reference For Trade Union Royal Commission; Criminal Conduct Probe, Reporting Date Extended

The federal government has widened the terms of reference for the Royal Commission into trade unions and given the inquiry an extra year to report.

The inquiry will now have the ability to investigate criminal conduct by unions. The December 2014 reporting date has been extended to December 2015.

The Attorney-General, Senator George Brandis, announced the changes at a press conference today.

Brandis

The Royal Commission into Trade Union Governance and Corruption is being conducted by the former High Court Justice John Dyson Heydon. It was established by the Abbott government in February this year.

Brandis said the government had accepted a suggestion by Dyson Heydon for the inclusion of an additional term of reference relating to criminal conduct.

In a letter to Brandis, Dyson Heydon said: “The inquiry thus far has revealed evidence of criminal conduct which includes widespread instances of physical and verbal violence, cartel conduct, secondary boycotts, contempt of court and other institutional orders, and the encouragement of others to commit these contempts. Some officials appear to regard their unions as having immunity not only from the norms and sanctions of the Australian legal system, but also from any social or community standard shared by other Australians… There are dimensions of criminal conduct revealed by the evidence thus far suggesting that a more thorough examination…is desirable.”

Brandis denied there was any political motive in extending the Royal Commission’s deadline to the end of 2015. The date is less than a year before the next federal election.

  • Listen to Brandis’s press conference (10m – transcript below)

Justice John Dyson Heydon’s letter to Senator Brandis is shown below. At the bottom of the first page, he distances himself from the operations of the NSW Independent Commission Against Corruption. In the final paragraph, he says the letter is neither a request for widening of the terms of reference or an extension of the reporting date.

14-10-07_dyson-heydon-letter-to-brandis

Transcript of press conference by the Attorney-General, Senator George Brandis.

ATTORNEY-GENERAL SENATOR GEORGE BRANDIS: On the 10th of February this year, the Government announced its intention to establish a Royal Commission into Trade Union Governance and Corruption, and on the 13th of March, Her Excellency, the then Governor-General, published Letters Patent to the Honourable Dyson Heydon, a distinguished retired judge of the High Court of Australia, instructing him to conduct such a royal commission, on the terms of reference set out in the Letters Patent. The reporting date for the Royal Commission was specified as the 31st of December 2014.

In recent weeks I’ve had two meetings with Mr Heydon, during the course of which he has briefed me on the conduct of the Royal Commission’s work. The effect of those meetings is summarised in a letter which I received from Mr Heydon on Thursday of last week which I’m publishing to you, with his consent, today.

Might I direct you, in particular, to the bottom part of the second page of that letter in which Mr Heydon says –“the inquiry thus far has revealed evidence of criminal conduct which includes widespread instances of physical and verbal violence, cartel conduct, secondary boycotts, contempt of court and other institutional orders, and the encouragement of others to commit these contempts. Some officials appear to regard their unions as having immunity not only from the norms and sanctions of the Australian legal system, but also from any social or community standard shared by other Australians.” He goes on to say, “there are dimensions of criminal conduct revealed by the evidence thus far suggesting that a more thorough examination of the matters listed in paras (g) through to (k) (in the terms of reference) is desirable.” Mr Heydon goes on, on page three, to suggest the Letters Patent be amended by the inclusion of an additional term of reference, referring to any “criminal or otherwise unlawful act or omission undertaken for the purpose of facilitating or concealing the conduct mentioned in paragraphs (g) through to (i)” of the original terms of reference. It is very apparent from what Mr Heydon says in his letter that there is a large amount of unfinished business before the Royal Commission which, from a practical point of view, would not be able to be considered satisfactorily were the original reporting date be adhered to. For that reason, the Government has this morning decided to recommend to His Excellency the Governor-General to amend the Letters Patent in two respects. First of all, by adding the additional term of reference suggested by Mr Heydon; and secondly, by extending the reporting date of the Royal Commission to the 31st of December 2015.

It is very plain that the problem of criminality and the associations between certain unions and certain union officials and crime is a much more widespread problem than appeared to be the case when, at the beginning of this year, the Government decided to establish the Royal Commission and set the original terms of reference. These are matters that have been drawn to the attention of the Government by the Royal Commissioner. The Government has decided to act on the basis of what the Royal Commissioner has set out in his letter of 2 October to make the recommendations that I have described to you to His Excellency the Governor-General. My understanding is the Royal Commission will report to the Government as planned before the end of December this year, but that report will be an interim report, and the Commission will proceed with the additional body of work, in particular that body of work comprehended by the new term of reference, throughout the calendar year 2015, with a view to reporting by the end of 2015.

QUESTION: From your conversations with Dyson Heydon, have you understood what sort of behaviour it is that he wants to capture inside the new paragraph that isn’t already captured in the terms of reference.

BRANDIS: I think it’s probably safest, Andrew, to let Mr Heydon’s letter speak for itself, and indeed to let the additional term of reference speak for itself. Mr Heydon of course is a lawyer of the most outstanding distinction and he’s not somebody who would gratuitously suggest a term of reference that didn’t add anything to the existing terms of reference.

QUESTION: A cynic might suggest the timing of the extension will enable you to put the report out in an election year. How would you respond to that?

BRANDIS: We are responding to what the Royal Commissioner has said to us.

QUESTION: Will next year, the extension, only look at what’s in that additional term of reference, and can you tell me the cost of extending it?

BRANDIS: First of all, the way in which the Royal Commission goes about its work, its work program and so on, is entirely a matter for the Royal Commissioner. I’m always at pains to stress this point – a royal commission is simply that, it is the establishment or constitution of an individual citizen or citizens to proceed under the provisions and powers of the Royal Commissions Act to deal with terms of reference set out in letter patent. But how that is dealt with, the manner in which the letters patent are observed given effect to is entirely a matter for the royal commissioner who, subject to the terms of the letters patent and subject of the provisions of the Royal Commissions Act, is entirely autonomous. So it’s for Mr Heydon, not for me to say how the Royal Commission will go about its work. But I’m bound to say I would have thought that the addition of an additional term of reference does not limit the Royal Commission from dealing on an extended basis with the pre-existing terms of reference.

Now in relation to the question of how much more it would cost, we estimate that the cost of the additional 12 months would be $23.6 million, however I’m also able to tell you that from the initial allocation to the Royal Commission when it was established there has been an underspend of $15.2 million. So, at the moment, it looks as if the additional cost will be about a little over $8 million.

QUESTION: Will the interim report be made public this year?

BRANDIS: That is my intention.

QUESTION: Would you expect that the Gillard matter would be finalised in the interim report?

BRANDIS: I don’t know that. That’s entirely a matter for the Royal Commissioner.

QUESTION: John Howard recently expressed some opinions about royal commissions indicating that he didn’t think that Australia should go down the American path of prosecuting a previous political [inaudible]

BRANDIS: I agree with what Mr Howard said, but the point I’d make to you is that this is not about politics, this is about the criminal law and the compliance by important and powerful institutions in our society and economy with the law.

QUESTION: Yes, Senator, [inaudible] would it be better, given, for example, the Government’s taken a bit of criticism about pursuing these royal commissions while, for example, [inaudible] allegations that have been aired at ICAC in New South Wales, letting that just play out in New South Wales. would it be better if a number of these allegations were addressed effectively by a federal ICAC or by a mechanism like that?

BRANDIS: You establish a royal commission to look into a specific and defined problem of sufficient importance that it is worthy of a royal commissioner’s attention. That is what we have done. I think there would be very few people, other those with something to defend or to conceal, who would deny that there is a systemic problem in elements of the trade union movement. As Mr Heydon has written to me in his letter of 2 October, there is widespread evidence of criminal conduct. I think the public interest demands that rather than leave the matter hanging in the air as it were that the unfinished business of this Royal Commission be allowed to be finished.

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