Brown Study

Brown study

22 August 2015

9:00 AM

22 August 2015

9:00 AM

With the stuff and nonsense being thrown around about Dyson Heydon and the Royal Commission into union corruption, it is about time that someone set down a few relevant principles. First, a royal commission is not a trial, civil or criminal, that can affect peoples’ rights. It is an inquiry to ascertain the facts. As the Royal Commissions Act itself makes perfectly plain, Mr Heydon’s role is ‘to make inquiry into and report upon’ the matter that has been referred to him and that is all. In the present inquiry, nothing has been shown to suggest that Mr Heydon is unable to find the facts or that he would do so with anything but an open mind. Second, bias is demonstrating a predilection to favour of one side or prejudicial to the other. Mr Heydon has shown neither. Making an academic speech about the law, to a handful of lawyers, where there are no sides, no charges and no issues, cannot conceivably be evidence of bias in favour of or against anyone. Third, when an issue of alleged bias is raised, it is for the commissioner himself to decide if he is conflicted; it is certainly not for a political party or a union to mount some self-serving case to bludgeon a tribunal into submission. In any event, all that is alleged is that the commissioner made a mistake, freely admitted and promptly rectified. No, the real bias is that those who are trying to destroy Mr Heydon are biased themselves because they fear the facts coming out and will use any underhand tactic to keep them hidden.

The developments in the same sex marriage issue have been truly amazing. First, the Liberal Party has taken the bait and allowed the issue to take over its party room deliberations and be used to conduct a proxy war against the Prime Minister, which can only sap public support for the government as a whole. I have never seen such a debilitating performance by a few malcontents who now seem to think it acceptable to argue with each other in public and divulge cabinet and party room discussions, with one eye on how it will enhance their own standing. Some backbenchers foolishly think that by pandering to the most minute of minority interests in their own electorates and antagonising the much larger ranks of their traditional supporters, they will be protected from any electoral fall-out. This is, of course, a delusion. The flag bearers for same sex marriage will never vote for a coalition candidate as they want to destroy most of what the coalition stands for. But coalition voters can and will change their vote if they see traditions and institutions being trashed by coalition candidates. And the more partial that backbenchers show they are to leaping onto any trendy bandwagon passing by, the more they will destroy the image and public perception of the government that Tony Abbott has been building up; one of stability, economic progress, support for traditional values and morals and no weird social experiments. If they keep to Abbott’s plan, they will succeed; once they depart from it, they will have a very dim future indeed. As for the Labor Party, its argument is that you can have a conscience, but only up until the next election; after that, conscience apparently comes to an end. The message is ‘Conscience on special; while stocks last.’ As for a plebiscite, the Labor Party recoils in horror at any notion that the people should have a say in the profound and fundamental change to the law that is being proposed. We cannot have a vote, Senator Wong tells us, because a vote would be ‘divisive’. Perish the thought that people should be divided in their opinions; division is what voting is supposed to resolve. Let the people vote.

Judging from your response, my comments a few weeks ago on the pointlessness of law reform seem to have struck a sympathetic chord. You will recall that I wrote that an English judge, whose name I had forgotten, had observed that things were so bad in the law that ‘reform’ would only make it worse. My old friend Sir Victor Garland has reminded me that the judge in question was Lord Ackner and that he, Garland, had been present at the time of the judge’s profound remarks. I have now done some research on Lord Ackner and have found him as sound as I expected and a good judge too. In charging the jury in a case where a school teacher had whacked a violent, LSD-addled student, Ackner asked: ‘Have we really reached the stage in this country when an insolent and bolshie pupil has to be treated with all the courtesies of visiting royalty?’ The teacher was acquitted. Lord Ackner also ruled that to allow the publication of extracts from Spycatcher ‘would have established a charter for traitors… Fortunately, the press is, as yet, not above the Law, although like some other powerful organisations, they would like that to be so.’ The penalties he imposed were severe when justified, his guiding principle being that ‘I belong to the school who think that courts should have particular regard to the effect (of crime) on victims, rather than the pre-natal experiences of offenders.’ Then he decided that the parents of an unborn child had a duty of care to keep it alive. He also ruled that a man who had to pay to go swimming when his wife was allowed in free was a victim of unlawful sex discrimination. Why can’t we have some more judges like Lord Ackner? Sorry, we are too busy with judges who delight with all the relish of a Greens’ senator in stopping yet another development project because they have found a rare species of spotted frog in a nearby swamp.

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