JASON GORDON: Don’t hold your breath

JEFF McCLOYWHEN water wants to go somewhere, it’ll find a way, as we found during the April storms.
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It doesn’t matter how many towels you stuff under the timber sliding doors, how many fingers in the dyke, how tiny the hole in your shoe, irresistible force will win.

If Mike Baird doesn’t know that already, there’s a fair chance he’s about to.

The Premier, seemingly kissed on the backside by a rainbow, led the state Liberals out of last year’s ICAC scandals without so much as a bruised hip, but politics can be a bit like whack-a-mole. Knock one on the head with a mallet, and another pops up. And sometimes you can’t keep a bad one down.

Since Jeff McCloy’s infamous run-in with the ICAC, calls to reform political donations laws have been getting louder and more toxic.

Salim Mehajer, the unnaturally-smooth deputy mayor of Auburn who obviously couldn’t afford live unicorns for his wedding, had the drums banging at the Premier’s door again last week.

Fairfax Media revealed that Mehajer had failed to tell election funding authorities about who funded his election campaign, how much was in it, and how much it cost to nail pictures of his head all over town. He got whacked with a couple of $1100 fines, slightly less than one of his Louis Vuitton shoes.

Mehajer is an independent and is not Baird’s problem, but the issue of political donations is.

Travel rorts at a federal level aside, it’s local councils where a deepening distrust of elected officials has become the not-so-silent creeper.

Baird knows the laws have to change, and with his party suffering the most knocks by recent scandals, he has to lead the charge.

Local government elections will be held late next year, with growing expectations of a federal poll as early as next March. Baird has promised to take the issue to a meeting of Australian governments later this year, but there appears little chance of turning reform around before we next go to the polls.

Talk so far has centred around tighter limits on how much can be donated to parties and candidates. Sure, that’ll help, but for cynics like me, that sort of reform won’t touch the sides. Unless we can see a real-time register of who’s donating to who, keeping the bastards honest will remain as difficult as finding unicorns for weddings.

No one should be in the business of predicting High Court judgments, but I’ll take a crack at what the High Court might make of Jeff McCloy’s challenge to what he says is a breach of his constitutional rights. That is, he should be allowed to donate to whoever he likes, regardless of what he does for a crust. He’s also challenged limits on donation amounts.

McCloy, as we know, was unhinged by the ICAC for illegally donating to the campaigns of three Liberals before the 2011 state poll.

Having sat through the High Court hearings, I find it difficult to see McCloy losing the first challenge. You can’t ban one person, in this case a developer, from exercising the same democratic right afforded to everybody else. But the second claim is a tad messier. If we work on the idea that donations buy influence, does the size of that influence change in accordance with how much you can afford to donate? Yes, to hazard a guess.

Regardless, aren’t we better off knowing that he’s donated in the first place? Only then can we determine if he’s simply backing a horse he likes, or if he’s backing a horse that’s returning him something way over the odds.

There is no evidence to support the theory that McCloy got any return at all, despite him breaking the law, but the issue is bigger than McCloy alone. Take a look at the electoral funding returns of the Liberal and Labor candidates and you’ll see, almost like magic, that their entire campaigns were funded by a donation from their party or branch. In other words, how the hell do we know who donated to the union, to the party, to the state office, to the federal office, to the local branch, to fund the candidate?

Real reform needs to start from the ground up and it’s going to be a difficult mole for Baird to whack into oblivion any time soon. Because regardless of what shape that reform takes, and regardless of how political donations are governed, that same cynic in me suggests that ways around them will soon follow. Like water, it will find a way.

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EDITORIAL: Union inquiry goes on

Dyson Heydon TRADE unions, not surprisingly, are unhappy that royal commissioner Dyson Heydon has dismissed their bid to have the former High Court judge step aside from his probe into corruption among their ranks.
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It had been alleged that, because the commissioner had agreed to deliver an address to a Liberal Party fundraising event, the public might perceive him to be biased towards the Abbott government’s anti-union agenda.

The commissioner withdrew from his speaking engagement after the controversy erupted in the press, explaining that he had ‘‘overlooked’’ links between the annual Garfield Barwick address and the Liberal Party. He has, however, stated that he would be willing to deliver the Barwick address at some time in the future, when he was no longer presiding over this royal commission.

Ruling on his own case, Mr Heydon has declared himself unbiased and ready to keep the corruption inquiry rolling ahead. ‘‘It could not rationally be concluded that a person who merely agrees to give a legal address at such an event, albeit organised by the lawyer branches of the Liberal Party, believes in, supports or has any relevant association with the Liberal Party,’’ the commissioner stated in his decision.

Whether many members of the public care much either way is a matter for conjecture. It appears to be a commonly held belief that the Abbott government started the commission for political reasons. Many people appear to agree with the contention that numerous other matters might be examined by a royal commission with greater prospect of real benefit to the nation than can be expected from this trade union inquiry.

But even if that view is accepted, not many Australians seem to have much sympathy for the union movement in this particular situation. Union membership has been dropping for years, and many remaining members often complain that their unions have become bureaucratic behemoths with only sporadic focus on workplace problems.

Indeed, the royal commission has revealed many shocking facts about the way some unions have operated, about their relationships with some employers and their influence on national politics through the Australian Labor Party.

Despite all that, one suspects that, on balance, many people probably regard the controversy as yet another partisan sideshow occurring during a highly charged period in Australian political life. Some might relish the discomfiture of the unions and the ALP, while others may equally have enjoyed the spectacle of some seemingly awkward moments for the commissioner and the government that appointed him.

The unions’ failed attempt to remove the commissioner may ensure, however, that more people pay attention to the commission’s future proceedings.

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Sailor considers appeal after losing compensation case over unwanted pregnancy

Lawyers representing a sailor who sued the Department of Defence over an unwanted pregnancy are considering appealing a judge’s decision to throw the case out.
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Emily Hetherington, now aged 26 from Queanbeyan, NSW, had been seeking damages for pain, suffering and loss of earnings after Navy medical staff failed to detect her pregnancy.

Ms Hetherington claimed that if her pregnancy had been confirmed, she would not have kept her unborn son.

But Supreme Court Justice Bernard Bongiorno dismissed the case, finding Ms Hetherington was not entitled to a damages payout under the Military Rehabilitation and Compensation Act.

Under the Act, Defence staff members were barred from receiving a compensation payout if they suffered a “service injury” caused by another staff member.

“The health status of a newly enlisted sailor would be a matter of some importance to the Navy,” the judge said.

“If the sailor was female her pregnancy status would be particularly important, having regard to the functions she might be required to carry out, whether ashore or on a ship.

“Accordingly, it is in the interests of the Navy as well as in those of the sailor, that her pregnancy status be ascertained and taken into account in the enlistment process and in the training which would normally follow it.”

The judge said when Ms Hetherington was attending Navy medical examinations, she was “acting in the interests of the Navy as well as in her own interests”.

“She was engaged in ‘rendering defence service’ just as much as if she were driving a truck, cleaning the deck of a ship, or engaging in some other more obviously Naval activity.”

The judge said, as a result, Ms Hetherington had suffered a ‘service injury” caused by another Defence staff member and was not entitled to compensation under the Act.

Slater and Gordon medical law senior associate Nick Mann told Fairfax Media on Monday that an appeal was being considered.

“We are reviewing the judgment and our client is currently considering her options,” Mr Mann said.

In her statement of claim, Ms Hetherington revealed she enlisted with the Navy on January 14, 2008, at Anglesea barracks in Hobart.

She underwent a medical examination on the day which included a urinary pregnancy test. This pregnancy test was reported as being negative.

A pregnancy test was also never carried out on a blood sample taken from Ms Hetherington.

The next day Ms Hetherington transferred to the HMAS Cerberus training facility in Victoria.

During her time at HMAS Cerberus, she attended the health care centre six times between January 15 and April 29, 2008, where she received a number of vaccinations.

During each visit to the health care centre, she told staff she had not had her period since either November or December 2007. Medical staff did not carry out any pregnancy tests during these visits.

Ms Hetherington said when she went to the health care centre on March 13, 2008, she told staff she was experiencing nausea, fatigue, dizziness, had gained weight and not had a period for about six months. No pregnancy test was undertaken.

Ms Hetherington claimed if she had known she had been six to seven weeks’ pregnant at the time, she would have had an abortion.

She underwent an obstetric ultrasound examination on May 2, 2008, which revealed she was 22 weeks pregnant.

She gave birth to a son on August 24, 2008.

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Regular game time gives Socceroos hopefuls the best chance of making international grade

Socceroos coach Ange Postecoglou. Photo: Brendan Esposito Perth It’s a dilemma many young players face.
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To earn a big pay packet by sitting on the bench at a big club and rarely featuring.

Or to drop down a level and play regularly, improve your game and prospects and in so doing pave the way for an even bigger deal at a bigger club later in your career.

It’s a major talking point in the English game at the moment as the FA rues the fact that so many talented English youngsters seem content to harvest the riches on offer for merely being in a Premier League squad, even if they only play on the odd occasion.

But it’s equally relevant to the Socceroos and the Australian game, and something Ange Postecoglou and the national team coaching staff consider a major issue.

Postecoglou is a firm believer that, unless there are exceptional circumstances or that a player has already proved himself on countless occasions in green and gold, then anyone looking for selection has to prove himself ready by playing regularly.

Many in the game thought that former Melbourne Victory goalkeeper Mitch Langerak was an all round more talented keeper than ex-Central Coast custodian Mat Ryan when the two were in the early stages of their careers.

But it is the latter, a couple of years younger, who has firmly established himself as Postecoglou’s number one, in large part due to the fact that after both moved to Europe he played regularly while Langerak didn’t.

The latter spent years on the bench as back up goalkeeper at one of the world’s biggest clubs, Borussia Dortmund. But he only started occasionally.

Ryan went to the less glamorous Belgian League where he instantly became first choice for Club Brugge. They won the title, progressed in the UEFA Cup, Ryan established himself and is now playing for Valencia in La Liga, one of the best league’s in the world.

Langerak has, only now, moved to VFB Stuttgart but his chances of breaking through have been stymied by a knee injury which has prevented him playing for his new side.

There are several players in the current Socceroo squad for the upcoming World Cup qualifiers who have faced a similar choice.

Left back Jason Davidson secured a dream move from Holland to the EPL after the World Cup when he signed for West Bromwich Albion. But the switch to the Hawthorns turned out to be anything but for the Australian international as he rarely featured for the Baggies all season.

He has now joined Championship strugglers Huddersfield Town. Its a step down in grade, but at least he is playing all the time and is a much better chance of developing his game with regular football.

Massimo Luongo has burst on to the Socceroo scene like a comet in the past 12 months.

When his then third tier club, League One Swindon Town, did not win promotion to the Championship last season it was inevitable that Luongo would leave. After all, he had won the player of the tournament award at the Asian Cup and was in demand from bigger clubs.

While the youngster was linked with teams in the Premier League and overseas, Luongo plumped for a move to the Championship to join Queens Park Rangers, the London team just relegated from the EPL.

Some saw that as a strange move given he might have gone to a higher level, but for Luongo it was the chance to play regularly with an ambitious team looking to bounce back to the top flight that was the clincher.

For Postecoglou it is far more useful to have a player like him appearing regularly in the hurly burly of The Championship, one of the most competitive leagues in the world, than sitting on the bench at a club like Aston Villa (with whom he was linked) and playing sporadically.

Tommy Oar, the Socceroo winger who has just signed a deal with another Championship side in Ipswich Town, is another example. He parted company with Utrecht, of the Dutch Eredivisie, and although he was linked with moves to Spain he has taken the chance to join a club where he might get the chance to play more regularly than he would in La Liga.

Admittedly its not always straightforward. And its sometimes hard to convince young men to turn down lucrative financial offers which could set them up for life in favour of a more measured approach which promises deferred, but potentially even greater, riches.

Its something Socceroo assistant coach Ante Milicic acknowledges. But, as he points out, there are major benefits, at least to a player’s international prospects.

“Every case is individual and there are also a lot of advisers and agents involved in the players personal decisions as to where they are going to play their club football.

“But definitely for us, when we look at the bigger picture, players that are playing consistently and playing at a decent level always gives you a better chance to play for the national team.

“It also means that when you come into camp you are fit and can back up and play two games in five or six days, you can handle the travel and it just gives you a better chance of selection when you have got the minutes in your legs.”

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Trade Union Royal Commission: Dyson Heydon shows why judges really are a breed apart

Dyson Heydon will remain as the head of the royal commission into trade union corruption. Photo: Ben RushtonUnions weigh appeal as Labor shifts attack to ParliamentAddressing Lib fundraiser does not mean supporting Libs: HeydonComment: Heydon saves his own skinAnalysis: Heydon finds ‘fatal’ flaw in unions’ argument
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A welter of evidence clearly establishing a widespread public perception of bias on the part of the royal commissioner into trade union corruption has been brushed off as irrelevant by the highest legal authority charged with assessing it: the royal commissioner himself.

In finding that the evidence tendered by unions amounted to insufficient weight to justify his own recusal, Heydon has confused his own subjective self-assessment with a more objective public understanding of his impartiality, giving more weight to the former than the latter.

In part this is driven by a calculation – shared by the government as it happens – that much of the “outrage” against him is transparently political and self-serving. Further, that the claims of apprehended bias derived from opportunistic outrage by persons primarily concerned with discrediting him, undermining his inquiry, and thereby avoiding further scrutiny of their own questionable actions.

This is undoubtedly correct, inasmuch as some parties are concerned, but the question mark hanging over the royal commissioner’s impartiality remains and, despite his determination to continue, is not limited to unionists, dodgy or otherwise.

Heydon’s verdict was to some extent inevitable. When a judge is asked to rule on his or her self – especially on questions of impartiality – disentangling the personal from the public, the subjective from the objective, is difficult. It is itself a conflict of interest.

But that’s the job.

Heydon may well be completely unbiased and may well have brought to this politically super-charged inquiry a completely impartial and unprejudiced mind.

But self-evidently, many people do not think so.

In any event, Heydon appears to have sloughed off his own admirably economical direction in another case, that being British American Tobacco Australia Services Limited v Laurie of February 2010, where he said: “It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification … Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.”

Prima facie, the retention of the royal commissioner is a win for the Abbott government. Heydon’s departure in ignominious circumstances would have de-spurred a process which is central to the political architecture of the Coalition’s re-election.

Yet it has also served to deepen public suspicion that its aims were always partisan – and that the $60 million-plus allocated is a vast sum of public funds directed to a political cause deemed advantageous to the incumbent government.

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