The trade union movement has decided to push ahead with an application for the royal commissioner, Dyson Heydon, to disqualify himself from heading the inquiry into union governance and corruption.
The Australian Council of Trade Unions announced the decision on Wednesday, saying the step was needed because the prime minister, Tony Abbott, had refused to act on calls to shut down the commission over an alleged appearance of bias.
“Acting on behalf of a number of affiliated unions, the ACTU has today advised the royal commission into trade unions that it has determined to proceed with an application on Friday that the commissioner disqualify himself,” the ACTU secretary, Dave Oliver, said in a statement issued shortly before parliamentary question time.
“The ACTU has always maintained that the royal commission is a political witch hunt by Tony Abbott designed to weaken his political opponents.”
Labor had earlier delayed a Senate vote on a motion calling on the governor general to dismiss Heydon, after crossbenchers wanted him to have the opportunity to respond to potential submissions seeking his disqualification.
Labor’s Senate leader, Penny Wong, said the party would postpone consideration of the motion until 7 September – the first parliamentary sitting day after the anticipated hearing on Friday for Heydon to consider a request from unions for his removal.
Eric Abetz, who leads the government in the upper house, had branded the motion as an attempt to set up a “kangaroo court in the Senate.” Abetz said Labor had “backed down after realising that such a motion would entirely undermine due process and deny natural justice”.
The deferral is a result of negotiations with Senate crossbenchers over the proposed motion, which would have sent a message to the governor general, Peter Cosgrove, asking him to revoke Heydon’s appointment because of his initial acceptance of an invitation to speak at a Liberal party fundraiser.
Heydon, who pulled out of the event last week, said he had “overlooked” the Liberal party connection when he was contacted by the organiser in March 2015, and also overlooked the fact his agreement in 2014 to speak at the event had been conditional on the commission’s work having been completed.
The former high court judge set the ACTU a deadline of Thursday to lodge submissions on whether they would formally ask him to stand aside from the commission; he would consider the submissions on Friday.
In question time on Wednesday, Abbott said Heydon was “doing valuable and necessary work as a royal commissioner into union corruption” and should be allowed to get on with his job.
“It is actually a criminal offence to attack a serving royal commissioner,” the prime minister said.
Labor asked Abbott about comments Heydon made at a Centre for Independent Studies event in 2013, several months prior to his appointment as royal commissioner.
Fairfax Media reported that Heydon, while criticising Labor’s proposed charity regulations, said: “Is it an illustration of the fact that the tendency of the Rudd government to do non-substantive things like make speeches, and appoint committees and hold summits and so forth, survived even after Mr Rudd ceased to be prime minister?”
The manager of opposition business, Tony Burke, asked Abbott whether it was “the independent speech of a retired judge who is above politics or a job application for a partisan role”.
The prime minister ridiculed the suggestion, saying the Rudd government had been so lacking in substance that the opposition leader, Bill Shorten, helped remove Kevin Rudd from the Labor leadership in 2010.
Abbott said Heyond’s remarks were “evidence of gentle tolerance of the most incompetent government in Australian history”.
“He said that the Rudd government had done non-substantive things,” Abbott said. “Frankly, that is the best thing has ever been said about the Rudd government. If there is any bias, it is bias in favour of the Rudd government. He is the least critical person of the Rudd government of anyone in Australia.”
Wong gave notice on Tuesday of the proposed motion to be moved in the Senate on Wednesday, but she cautioned that the timing would be subject to negotiation with crossbench senators.
“This decision provides Commissioner Heydon with the opportunity to respond to any submission made in the royal commission seeking his disqualification before the parliament deals with this matter,” she said.
“Labor maintains that commissioner Heydon’s decision to accept an invitation to address a Liberal party fundraiser is unacceptable and his position is untenable.
“This matter has only come before the parliament because the prime minister has failed to demonstrate leadership and deal with his ‘captain’s pick’.”
The governor general acts on the advice of ministers who are responsible to the parliament when exercising executive power, according to constitutional practice.
Labor – which is still angry about the dismissal of the Whitlam government by the then governor general, John Kerr, in 1975 – insists it is within the Senate’s power to convey the request and it would be up to Cosgrove to consider how to handle it.
If the majority of senators agreed to the motion, the Senate would send a message to Cosgrove saying that Heydon “by his conduct in accepting an invitation to speak at a function raising campaign funds for the Liberal party of Australia (New South Wales division) has failed to uphold the standards of impartiality expected of a holder of the office of royal commissioner”.
“Accordingly we respectfully request Your Excellency to revoke the letters patent issued to the Honourable John Dyson Heydon AC QC,” the proposed motion would state.
The practical effect of revoking the letters patent, in the absence of any other action, would be an end to the Royal Commission into Trade Union Governance and Corruption.
But Labor insisted its motion was focused on Heydon and did not preclude the government from taking other steps to continue an inquiry into unions. One option suggested by the human rights lawyer Julian Burnside QC was the appointment of a new commissioner who could consider evidence already given.
The government continued to defend Heydon, arguing Labor was making “a sordid, squalid attempt” to smear an eminent former high court judge.
Abetz denounced the “venom and hatred being spewed forth by Labor and the trade union movement against the messenger who is uncovering scandal after scandal”.
“That should not be determined by a kangaroo court in the Senate where the chief prosecutor is Senator Wong – a former CFMEU employee herself hardly coming with clear mind to this issue,” Abetz told the ABC on Wednesday.
“That is why the royal commissioner should hear any application if it’s made and then if any party is aggrieved it should go to the courts.”
