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In praise of unsmiling Hayne

  • 07 February 2019


'What we've got here is failure to communicate.' — Cool Hand Luke, 1967 I spent Tuesday evening in my local pub with a retired professor of social work, and coming a miserable second in a disputable round of trivia, won by a table of barristers, or more probably baristas.

It was a wretched end to a lively conversation between myself and the said retired professor who had asked for my opinion and then explained to me it was incorrect; that my optimism and delight in Hayne's refusal to smile, shake hands, pass over his printed volumes of his final report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry to, or even look at Deputy PM Josh Frydenberg during their exquisitely awkward and politely disdainful 'press event', aired on the news 1 February, was, in other words, mistooken.

My friendly academic, in whom I am generally very well-pleased, explained to me and to his neighbour, the sympathetic professional artist who painted my portrait (on commission) for the Archibald in 1997 when my opinions were sometimes respected, made a diligent and well-argued case that Hayne had failed in his task which, the retired professor thought, was to 'tackle bank structure'.

With the greatest of respect, notwithstanding the surge in the stock exchange that followed the report's publication, and despite the criticisms from even those such as John Warhurst and so many others on Twitter and other social media, this was not the job his former honour had to do. To imagine otherwise is to misunderstand both the law, and what it is 'meant' to do in the hands of those who are judicially trained.

The Hon. Kenneth Hayne AC was appointed to the Victorian Supreme Court in 1992, then to the High Court in 2007 (by John Howard), stepping into Sir Daryl Dawson's patrician shoes and setting an admirable record of decision-making, before retiring in 2015. The Hon. Kenneth (if I may so familiarly call him) came from a classic Melbourne background (though mistakenly born in Gympie, Queensland): Scotch College, Melbourne University, Exeter College, Oxford-educated and a former Rhodes Scholar (smarter and harder-working than the Hon. Tony Abbott, former PM).

What are 'mistooken' are the expectations of a royal commission, which change nothing because they are not meant to do so: think the royal commission into Aboriginal deaths in custody, now more than 31 years ago, and its 'influence' on the massive