Disquiet over Heydon's role difficult to dispel

OPINION: This week the Labor Party will shift the point of attack on royal commissioner Dyson Heydon. Opposition frontbencher Penny Wong will ask the Senate to send an address to Governor General Peter Cosgrove requesting that Heydon be dismissed. This latest salvo will come to nothing, but it will nonetheless keep public attention focused on the issue.

Labor's decision to take the debate into the Senate is not surprising. It reflects the nature of royal commissions as instruments of the government of the day. Each commission is directed by terms of reference drafted by a government, and armed with extraordinary powers of investigation and coercion that go well beyond those of the courts. They are the closest that Australia comes to the star chambers of old.

Governments need to exercise caution in establishing royal commissions. In this case, an investigation into union corruption and wrongdoing was warranted. Unfortunately, Abbott established it, along with the royal commission into Kevin Rudd's pink batts program, in a way that highlighted it as a political exercise. The government sought to counter this perception by appointing former High Court justice Heydon to run the process.

Much has been made of Heydon's decision to accept an invitation to speak at an event raising funds for the Liberal Party. His decision to continue with the commission despite this is unsurprising. It is difficult as a matter of law to make out an appearance of bias, and in this case Heydon was able in detailed reasons to show that his connection to the Liberal Party was minor and did not provide a basis for his disqualification.

Heydon's decision may well be correct as a matter of law, but it was never going to be the end of the matter. One problem is that his decision is compromised by the way in which it was made. This is not due to Heydon, but to the troubling and unfortunate process for disqualification established by the law.

The law required Heydon to judge his own case. He had to determine the law, apply this to his actions and make judgements about his conduct. If those seeking his disqualification had disputed his version of events, he might also have had to make findings about his own credibility. There is an irony in this. Heydon was left to decide whether his circumstances gave rise to an apprehension of bias by way of a process that lacked impartiality and independence.

The same process and issues arise when a judge is asked to disqualify themselves. In each case, the decision is left to the person involved on the basis that royal commissioners and judges are assumed to be of unimpeachable integrity and so can be trusted to determine their own fate.

This process should be abandoned and replaced with the decision being made by an independent judge. The problem is especially acute when it comes to royal commissioners. They lack the independence of the judiciary, need not be legally trained and as political appointees can be hired and fired by the government at will. The idea that such a person should determine whether they are disqualified from their own job is wrong in principle and runs counter to community expectations of how the legal system should operate.

From here, the unions can challenge Heydon's decision in court. They would have an arguable case, but may not bring an appeal for fear that an independent judicial finding in favour of Heydon would put to rest public concerns about his role. In seeking to destroy the commission, they could end up bolstering it.

This may be one reason why the next attack will arise in the Senate when it debates whether to ask the Governor General to revoke Heydon's appointment. In the absence of a court appeal, the Senate is entitled to petition the Governor General in this way, and indeed this possibility is provided for in its Standing Orders. The mechanism has been used a number of times in the past.

The motion may be passed, but it will lead to no more than a polite response from the Governor General. The Queen's representative appoints and dismisses royal commissioners, but does so on the advice of the government. As a result, Heydon will have his appointment revoked only if such advice is given by the Prime Minister.

Although a Senate address to the Governor General will achieve nothing as a matter of law, that is not the point of the exercise. The motion is a political tactic designed to maintain the focus on Heydon's actions and his decision not to disqualify himself. In the absence of an independent person determining that Heydon is correct, disquiet about his ongoing role will no doubt continue and provide fodder for further political attacks.

George Williams is the Anthony Mason Professor of law at UNSW.

This opinion piece first appeared in the Sydney Morning Herald.