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