In a joint press release, the Prime Minister, Employment Minister and Attorney-General today made their expected announcement of a new royal commission into trade union governance and corruption. The announcement revealed the new commissioner:
The Government will also recommend that The Honourable John Dyson Heydon AC QC be appointed as Commissioner to lead this inquiry. A former High Court Judge, His Honour has a distinguished legal career and I am pleased to confirm his willingness to accept this appointment.
Dyson Heydon is the most recent judge to leave the High Court, reaching the constitutionally mandated retirement age of 70 on 1 March last year.
Every such Commissioner shall in the exercise of his or her duty as Commissioner have the same protection and immunity as a Justice of the High Court.
In some respects, less so. Section 60(2) provides:
If the President or Chair of a Royal Commission or the sole Commissioner is a Justice of the High Court, or a Judge of any other Federal Court, of the Supreme Court of a Territory or of the Supreme Court or County Court or District Court of a State, he or she shall, in relation to any offence against subsection (1) of this section committed in the face of the Commission, have all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in face of the Court, except that any punishment inflicted shall not exceed the punishment provided by subsection (1) of this section.
Because Mr Heydon no longer ‘is a Justice of the High Court’, he will not have his former power to fine or imprison people for contempt.
As the provision above demonstrates, it is not unheard of for sitting High Court judges, let alone retired ones, to be appointed as Royal Commissioners. Last August, this blog noted that other former judges have taken on significant domestic inquiry roles in recent decades, including ones:
- not long after leaving the High Court. (Ian Callinan headed the horse flu inquiry a month after his retirement.)
- in a national inquiry. (Ronald Wilson co-authored the Human Rights and Equal Opportunity Commission’s Stolen Generations report.)
- with coercive powers to call and arrest potential witnesses. (Daryl Dawson had similar broad powers when he chaired the Longford commission.)
- in a matter of partisan political controversy. (Ronald Wilson previously participated in the royal commission into WA Inc.)
- made by a government of the same party that appointed the judge to the High Court. (Ian Callinan’s appointments as a High Court judge and horse flu inquisitor bookended the Howard government.)
Arguably, Mr Heydon’s appointment breaks new ground in in combining all of the above characteristics in a single role.