The royal commission into trade union corruption, when established by the Abbott Government in 2014, always had a partisan smell to it. Even if one gives credit that such a royal inquiry takes place, an image of impartiality in tribunal processes is fundamental. From the start, that face has been hard to sustain.
This then sets the scene for Dyson Heydon's role as head of that royal commission. Fine that he be a former high court justice. Fine that he bring to the investigative bench his experience and skills as both an advocate and a jurist. But then came his invitation to be a keynote speaker at the Sir Garfield Barwick address.
The Australian Council of Trade Unions (ACTU) has been convinced that grounds exist to make Heydon disqualify himself. In nailing his colours to the mast of the Liberal Party fundraising circuit, he has at the very least given some inkling of being sympathetic.
Heydon himself implausibly claims that he did not believe his address would be given at a fundraiser, nor did he read attachments to an email in June which included an invitation with the Liberal Party letterhead. Prime Minister Tony Abbott dashed Heydon's shield of ignorance in the House by claiming that, 'It has never been disputed that this was a Liberal party event.'
Liberal frontbencher Josh Frydenberg has decided to attack suggestions of perceived impartiality. He misunderstands that, in natural justice, what matters is not necessarily what is done, but what is seen to be done, a hearing that is afforded in circumstances where bias is not seen to make itself manifest. 'The public can see through this partisan political attack by the unions and the Labor party on one of Australia's most distinguished an eminent jurists'.
It is not that Heydon would necessarily behave in a manner inappropriate to the investigation. Few would challenge his legal credentials. The attack on Frydenberg's part demonstrates, as ever, a confusion about the role of how fairness applies to administrative proceedings. An administrator can still be brilliant and heavily credentialed, while appearing in a capacity compromised by the appearance of bias.
The test employed here is that of how the 'fair-minded lay observer' would perceive Heydon's role on being informed of the invitation, a fabulous legal contrivance that has no flesh and blood reality. What matters is layman's opinion — informed about the circumstances yes — but layman's nonetheless.
Substance, and appearance, are simply not the same thing in this field of inquiry. There is little doubt that, had the Royal commissioner appointment been the improbable yet equally eminent Michael Kirby, the feeling that such a progressive figure may not have been a suitable candidate to investigate the union movement may have also manifested itself from Liberal critics. But who is to say that his findings might well be harsher?
The truth may well be that both Heydon and Kirby might come to the same conclusions from different sides of the political fence. The question is whether that side of the fence casts a shadow, however imperceptible, of bias that has the potential of marring the justice process. It was the situation that Lord Hoffmann found himself in after his links with Amnesty International perceptibly compromised his views on extraditing Chile's former military ruler Augusto Pinochet. Even the best jurists can fall foul of the bias rule.
Appearances, in other words, doesn't prepare you for the detail, the scope of conduct that a decision maker ends up engaging in. But in terms of process, the assumption that one's judgment is not clouded by a particular political angle, or sympathy to one side of the aisle, are fundamental to the outcome of an investigation.
Tony Morris QC of the Queensland Commission of Inquiry, to take one example from 2005, was found by a court to be biased in apparently favouring those giving evidence against Jayant Patel of Bundaberg hospital while demonstrating hostility against hospital administrators. It is for that reason that Heydon's conduct makes his continuation in his current role, not only problematic, but discrediting to both his standing and that of the Abbott government.
The spectacle is a strange one indeed. Heydon is in a situation where he is to make a ruling about an application that directly concerns his own fitness to be in the position. This is a tall order, and immediately brings to mind those curious little perversions that occasionally attend royal commission practice.
But here, the royal commission has truly internalised its functions, being, as it was termed by Michael Foot, a broody hen sitting on a china egg. Continuing in its current form, however, serves to undermine, rather than further the cause of purity the Prime Minister, and those sympathetic to it, wish to achieve.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.