Labor is seeking crossbench support for its Senate motion calling on the governor general to sack the trade union royal commissioner, Dyson Heydon, despite the Coalition saying the move would be “of no legal consequence” because ministers would not recommend his removal.

The opposition’s decision to push ahead with the parliamentary manoeuvre followed Heydon’s ruling on Monday that rejected claims of apprehended bias stemming from his initial agreement to speak at a Liberal party event.



Unions are yet to announce whether they will lodge an application to the federal or high court to try to stop the Heydon-led commission from continuing its work. The commission – which is due to present a final report to the governor general, Sir Peter Cosgrove, in December – resumed CFMEU-related hearings in Sydney on Tuesday.

“Today it’s business as usual,” the prime minister, Tony Abbott, said.

Labor intends to press for a vote in the Senate on its motion to send a message to Cosgrove about Heydon after parliament resumes next week. Labor still faces a battle to persuade enough crossbench senators to pass the motion, but many are yet to lock in their positions.

Labor’s Senate leader, Penny Wong, said it was incumbent on the parliament to act because the commission had “really demonstrated itself to not be an unbiased, impartial operation”.

Citing advice from the Senate clerk, Wong said the proposed motion was an appropriate way for the upper house to express its view, but added the subsequent handling of the request was “a matter for the governor general”.

The motion – which was deferred in the previous sitting fortnight pending Heydon’s decision – 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” and “we respectfully request your excellency to revoke the letters patent issued to the honourable John Dyson Heydon AC QC”.

The Coalition’s Senate leader, Eric Abetz, said he “thought it was an article of faith of the Labor party that the governor general should only act on the advice of his or her ministers”, a reference to the party’s outrage over the 1975 dismissal of the Whitlam government by the then governor general, Sir John Kerr.



“What a disgraceful position Labor has got itself into. Here they are wanting motions calling on the governor general to sack people,” he told the ABC.

“It is of no legal consequence because as everybody knows in the Westminster system other than with a reserve power the governor general acts on the advice of his or her ministers.”

In a pitch to crossbench senators considering the motion, Abetz said: “It is disgraceful, it is beyond belief, that the Labor party has become so unprincipled in their defence of corrupt union activity that they would go down this track and I trust that the independent senators will not fall for that stunt by Labor.”

The Greens are likely to support the motion, meaning Labor needs support from four of the eight crossbench senators to pass it.

So far, only the independent Tasmanian senator Jacqui Lambie has said she would support the motion. A spokesman said Lambie was “looking forward to explaining why in a 20-minute speech”.

Some senators have expressed concern about Heydon but not locked in their position on the motion.

The independent Queensland senator Glenn Lazarus, who told the Senate last month that “Heydon must go”, was yet to finalise his position, a spokeswoman said on Tuesday.

His fellow independent senator Nick Xenophon said he was unlikely to support the motion despite his concerns. “I am very unimpressed with Mr Heydon’s errors of judgment and the obfuscation surrounding it ,but to ask the governor general to apparently act unilaterally of the executive is a very disturbing path to go down,” he said.

The Palmer United party senator, Dio Wang, is yet to finalise his position but his office said his concern was that the motion “could set a precedent of the parliament having interference with the royal commission which commonly lasts longer than a term of parliament”.



A spokesman for the Liberal Democratic party senator, David Leyonhjelm, said he would read Heydon’s decision before determining his stance.

The Motoring Enthusiast party senator, Ricky Muir, said he had not reached a final position but had been briefed on the reasons for ruling on the disqualification applications. He said he was cautious of supporting the motion at this stage “as it is yet to be determined if the unions will seek judicial review of the commissioner’s decision”.

The Family First senator, Bob Day, was the only crossbencher to categorically say he would oppose the Labor motion. The independent John Madigan was yet to comment.

The shadow attorney general, Mark Dreyfus, said Heydon had “got it wrong” in his decision and had “not really approached this as an ordinary, fair-minded person would”.

“I think Australians have entirely lost confidence in this royal commission to operate free from political bias and the publication of his reasons yesterday has done nothing [to change that],” Dreyfus told the ABC.

“An ordinary Australian would say this was a Liberal party event and Dyson Heydon was happy to be associated with it.”

The president of the Australian Council of Trade Unions, Ged Kearney, said the peak union body was “having discussions with our our affiliates and our legal advisers” about whether it would launch court action.

Heydon, the sole commissioner of the inquiry, dismissed the union applications to disqualify himself and defended his impartiality in a 67-page decision delivered in Sydney on Monday.

The former high court judge rejected submissions from unions that his agreement to deliver the Sir Garfield Barwick address met the legal test of apprehended bias.



“I have concluded that it is not the case that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the resolution of the questions which the work of the commission requires to be decided,” Heydon said.