The Senate Address and the Governor-General - What is a Senate Address? Does the Governor-General have the power to dismiss Royal Commissioner Dyson Heydon?

Labor Senators moved a motion called an “address” on 8 September 2015, asking the Governor-General Peter Cosgrove to dismiss Dyson Heydon from the Royal Commission into Trade Union Corruption (TURC). While the motion was unsuccessful, it raises broader questions about the nature of a Senate Address and whether the Governor-General has the power to dismiss a Royal Commissioner.

Who can dismiss Dyson Heydon from TURC? 

To answer this question we must first examine who has the power to appoint a Royal Commissioner. Section 1A of the Royal Commissions Act 1902 (Cth) gives the Governor-General the power to create Royal Commissions and appoint Commissioners to the Royal Commission by Letters Patent. It is important to note that s.1A of the Royal Commissions Act 1902 (Cth) is prefaced by the words “without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorise any inquiry, or to issue any commission to make any inquiry”. Letters Patent are legal instruments in the form of a published written order issued by the Governor-General or the Queen. The Letters Patent outlines the terms of appointment, and usually a Commissioner end their tenure as a Commissioner when the Royal Commission concludes. One principle of responsible government is that the Governor-General will act on the advice of Government Ministers, unless the Governor-General is exercising a reserve power. While the Constitution creates a Federal Executive Council to advise the Governor-General (s.62 Commonwealth Constitution), it is the principle of responsible government that the Governor-General will act in accordance with the advice of Ministers. In practice, under s.1A of the Royal Commissions Act the Prime Minister will advise the Governor-General to create a Royal Commission and will advise the Governor-General which Commissioner(s) to appoint.  

Section 7 of the Royal Commissions Act 1902 (Cth) provides that each Commissioner has the “same protection and immunity as a Justice of the High Court”. This means does not mean that a Commissioner can only be dismissed in the same way that a High Court judge can be dismissed. Essentially s.7 provides Royal Commissioners with immunity from civil claims. 

While the removal of Commissioners is not explicitly dealt with in the Royal Commissions Act 1902 (Cth) the removal can be made by the Governor-General on advice through Letters Patent. 

The question remains whether the Governor-General could act unilaterally to remove a Commissioner. This question is discussed below.

What is a Senate Address?

The Senate Address is a formal mechanism by which one branch of government (the legislature via the Senate) can express a view to the executive arm of government. It is simply a way for the Senate to express their views about a particular topic to the Governor-General or the Queen. Historically, most Senate Addresses to the King or Queen have been addresses of congratulations or sympathy. The Senate also produced addresses-in-reply in 1954, 1974 and 1977 when the Queen opened sessions of parliament in person. There have been several Senate Addresses to the Governor-General, with the Annotated Standing Orders of the Australian Senate listing the following addresses as being particularly important:
Ø  “1904 – requesting recognition of the constitutional fact that the provision of revenue and grant of supply is a joint act of both Houses;

Ø  1914 – two addresses, one requesting publication of the communications between the government and the Governor-General concerning the proposed simultaneous dissolution of both Houses under s.57 of the Constitution, and the second asking the Governor-General to submit to the electors six constitution alteration proposals passed by the Senate in accordance with s.128 of the Constitution but not passed by the House of Representatives;

Ø  1931 – urging that the Governor-General refuse to approve regulations in the current session that were the same in substance as regulations already disallowed by the Senate.”

The Senate Address in 1931 was particularly serious. The Scullin Labor Government had repeatedly introduced regulations that were struck down by the Senate. The Senate grew tired of the attempts and passed a motion addressing the Governor-General asking him to prohibit the government from making the regulations. The Governor-General did not take any action. The Governor-General’s power to exercise such a power is uncertain.

What is the significance of a Senate Address?

The Senate address has no legal effect. The Governor-General is not bound to follow the recommendation in the request. What the Governor-General does with this information is his own decision.

Does the Governor-General have the power to dismiss a Royal Commissioner?

As discussed above, the Governor-General’s express powers in the Constitution are exercised on Ministerial advice in line with the principles of responsible government. However, the Governor-General also has another set of powers which can be exercised unilaterally without advice, at the Governor-General’s own discretion or contrary to advice in certain circumstances. These powers are known as the reserve powers. The scope of the reserve powers is uncertain, as the reserve powers are a series of conventions developed from British conceptions of responsible government.

There are a few established reserve powers:

1.       The power to appoint a Prime Minister if an election results in a hung Parliament;

2.       The power to dismiss a Prime Minister in circumstances where the House of Representatives has passed a 'No Confidence' motion against the Prime Minister; and

3.       The power to refuse to dissolve the House of Representatives contrary to Ministerial advice. This is the most commonly used reserve power.

The following reserve powers are more doubtful, but arguably are held by the Governor-General:

1.       The power to refuse a double dissolution. A double dissolution has been requested six times by Parliament, and each time the Governor-General has dissolved parliament as requested. There is the possibility the Governor-General retains the power to refuse a double dissolution.

2.       The power to withhold assent to Bills that have passed both House of Parliament.

3.       The power to select a new Prime Minister where the outgoing Prime Minister resigns after a defeat in the House of Representatives. Some scholars argue the Governor-General is obliged to appoint the replacement proposed by the outgoing Prime Minister.

4.       The power to dismiss a Prime Minister where the Government cannot obtain supply and the Prime Minister refuses to resign or to call an election.

A power to unilaterally dismiss a Royal Commissioner on the basis of misconduct does not come in any of the above categories. This does not necessarily mean the reserve power to dismiss a Royal Commissioner does not exist, rather that it is uncertain.

Conclusion  

While a Labor-led Senate may be able to pass a Senate Address and formally indicate their view that Justice Heydon should be removed as Royal Commissioner, the Governor-General is unlikely to act on his own initiative to dismiss the Royal Commissioner, as the existence of such a reserve power is uncertain. The issues discussed raise broader points about the nature of reserve powers. Reserve powers are unable to be tethered by legislation and are widely believed to be unjusticiable. If concepts of responsible government were implied into the Constitution, as scholars such as Winterton have suggested in academic work, it is believed the reserve powers could become justiciable, potentially giving Governor-General’s more guidance and confidence to exercise their reserve powers.  

TURC – Will Commissioner Heydon disqualify himself based on apprehended bias?

Commissioner Heydon is due to announce his decision on whether to disqualify himself tomorrow at 10am. The media discussions on whether Commissioner Heydon should dismiss himself from the Royal Commission on Trade Union Corruption (TURC) have focused on the political battle between the Labor Party and the Liberal Party, with the Labor Party claiming TURC has been a partisan witch hunt from the start. Few commentators have actually looked at the test for bias in depth.

The conduct in question:

Commissioner Heydon accepted an invitation to speak at the Sir Garfield Barwick address hosted by the Liberal Party. Commissioner Heydon withdrew his acceptance on 13 August.

The rule against bias

The rule against bias is based on the principle that “decision-making must be and be seen to be impartial”. In the case of Commissioner Heydon we are concerned with the “be seen to be impartial” component of the rule, being apprehended bias. Justice must not only be done but be seen to be done (Ebner at [6]).

The test for apprehended bias comes from Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 63:

Apprehended bias will exist where a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” [6].

Whether apprehended bias is present in any given case is very fact dependent, as an observer will have different expectations of the impartiality required by a decision maker in different circumstances. Commissioner Heydon is presiding over a Royal Commission. Most of the cases involve executive decision making or judicial decision making. However, despite factual differences, the principles in these cases apply to Commissioner Heydon’s situation.

Applying the test for apprehended bias – principles from case law

1.       The test for  apprehended bias uses the word “might”. Anyone who has followed Justice Heydon’s career would realise he is a black letter lawyer and would not let the incident affect his decision making. However, this is irrelevant. The test requires no prediction as to how the decision maker will actually approach the matter.  The consideration is “one of possibility (real and not remote). Not of probability” (Ebner [7]).

2.       There are two steps to applying the test:

a.       Identify what it is that might lead a judge to decide a case other than on its legal and factual merits; and

b.      Identify the connection between the matter and the feared deviation from the course of deciding the case on its merits [Ebner [7]).

3.       There are four broad categories of bias (Webb and Hay v the Queen [1994] HCA 30 per Deane J at [12]):

a.       Disqualification by interest – “cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment”;

b.      Disqualification by conduct – “cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias”;

c.       Disqualification by association – “cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings”; and

d.      Disqualification by erroneous information – “cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”.

These categories overlap somewhat, particularly category 1 and 3, and category 3 and 4. Commissioner Heydon’s conduct in accepting an invitation to present at a Liberal Party event could come into the “disqualification by conduct” category.

4.       There is a difference between decision making as a Minister and judicial decision making, with the standards of detachment applicable to a Judge not applying to Ministers (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507). Commissioner Heydon is acting in his capacity as a Commissioner in the Royal Commission, not a Judge. While there is no case law on the application of the rule of bias to Royal Commissions, it is likely that a Commissioner will be held to similar standards of impartiality as a Judge.

5.       The “fair-minded lay observer”:

a.       Does not know the personality or character of the Judge. The fact a Judge has been a Judge for over 20 years and has consistently stuck to the black letter of the law is irrelevant (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

b.      Has a broad knowledge of the facts and circumstances of both the proceedings and the events leading to the claim of apprehended bias (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

Is the test satisfied?

While the finding of apprehended bias should not be made lightly, I believe the test for apprehended bias has been satisfied and that Commissioner Heydon should dismiss himself. The bare assertion that a judge has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated (Ebner, [8]). Counsel for the ACTU, Robert Newlinds QC, in his submissions, has elevated the claim of apprehended bias beyond a mere assertion. He identified the conduct and linked the conduct with the feared deviation. While some of the ACTU’s submissions are not at all relevant, such as that the Commissioner should excuse himself otherwise findings of the Commission will lack credibility, the ACTU appears to have satisfied the evidentiary burden required.

The “fair-minded lay observer” on seeing Commissioner Heydon accept an invitation to present at a Liberal Party function might reasonably believe that the Commissioner would not bring an impartial mind to the Royal Commission proceedings. The Royal Commission into Trade Union Corruption is inherently political. The alignment of trade unions with the Labor Party and the support the Liberal Party has publically given the Royal Commission is no secret. Such public alignment with the Liberal Party could cause the “fair-minded lay observer” to form the view the Commissioner would not bring an impartial mind to the Royal Commission. Again, the test is concerned with whether the “fair-minded” lay observer “might” form this view. The fact that Commissioner Heydon is a well-respected Judge who managed to be impartial throughout his judicial career is irrelevant. In fact, it is Commissioner Heydon’s respect for the law that will probably see Commissioner Heydon dismiss himself on the basis of apprehended bias tomorrow.