Yesterday, both houses of Victoria’s parliament approved a motion to request that the Parliament’s Public Accounts and Estimates Committee ‘ inquire into and report no later than 20 October 2015 on allegations made against the Auditor-General, Mr John Doyle, in a formal grievance dated 12 August 2015, by a member of his staff’. Although the request does not detail the nature of those allegations, the Committee’s remit includes whether ‘the Parliament should give consideration to the removal of the Auditor-General from office’ under s. 94C(5) of Victoria’s Constitution. And, although also not detailed in the motion, it appears that the inquiry will be conducted by a very recently retired High Court judge (and current professorial fellow at Melbourne Law School.)
indicat[ed] that, to ensure the committee’s inquiry is able to be conducted as expeditiously as possible with absolute regard to the need to afford procedural fairness to affected individuals, the committee would seek the authority from the Parliament to commission recently retired High Court justice the Honourable Ken Hayne to investigate the matters referred to in the grievance and to report to the committee on those matters; and that Mr Hayne would conduct his inquiry in such a matter and pursuant to such procedures as he considers appropriate.
Assuming this occurs and that Mr Hayne accepts the commission, he will follow other former High Court judges in conducting sensitive inquiries, including, most recently, the Hon. Dyson Heydon.
On this occasion, the inquiry and choice of personnel is bipartisan. In the upper house, the Liberal Party’s Deputy Leader explained the rationale for commissioning Mr Hayne:
It would be the view of the opposition that it is important that in engaging Justice Hayne or any other counsel that the committee deems necessary for this inquire that that be done and be seen to be done independently of the government, given the nature of the relationship which always exists within auditors-general and the government.
Recent events involving Mr Heydon suggest another arguable advantage from selecting a former High Court judge. Responding to controversy about Mr Heydon’s alleged association with a political fundraiser, the President of the Law Council of Australia yesterday criticised the ‘public attacks on the Commissioner being played out through the media’, arguing that a Royal Commissioner ‘is entitled to the same respect, inside and outside of the Inquiry, as a Judge in a Court’, a stance that gains support from s. 7 of the Royal Commissions Act 1902 (Cth). The President added:
In this case, Mr John Dyson Heydon AC QC is a highly regarded former judicial officer. The proper way for dealing with any question of bias, including apprehended bias, is to make an application for the Commissioner to recuse himself, and for the Commissioner to consider and rule on the application.
By contrast, in the Victorian parliamentary inquiry, in the unlikely event that Mr Hayne is accused of bias, any decision about removing him would, presumably, be a matter for the Public Accounts and Estimates Committee.