Dyson Heydon's extreme view of judicial independence on display | Law

Dyson Heydon's extreme view of judicial independence on display

OPINION: Robert Woods, The Brisbane Times, 20 August 2015.

It has been nearly a week since it emerged that Dyson Heydon had agreed to address a Liberal Party fundraising event, in apparent conflict with his duties as the Coalition-appointed head of the Royal Commission into Trade Union Governance and Corruption. Allegations of actual or perceived bias have been thoroughly aired, and both the facts and their immediate legal and political consequences have, to a large extent, been clarified.

Now seems an opportune time to step back and reflect on what, if anything, this incident suggests about deeper pathologies in Australian legal and political culture.

It is ironic Heydon has been implicated in this controversy, given the highly principled stance he has taken in the past on the issue of judicial independence.

But there is more at stake here than whether, in light of what we now know, Heydon ought reasonably to have been aware of the requirements of impartiality. What may end up being more significant is that Heydon has played a prominent role in keeping the flame alive for a peculiarly Australian variant of conservative legalism.

In 2013, he caused a stir in legal-academic circles when he argued, in the Law Quarterly Review, that among the most prominent threats to judicial independence is the pull towards agreement within a court itself. "Compromise," he said, "is alien to the process of doing justice according to the law". Even in the absence of the stick, judges might be brought into line with the carrot: "charm, flattery, humour and elaborate but insincere displays of courtesy".

At the time, many read these comments as a thinly veiled rebuke of Heydon's colleagues on the High Court. His solution to the rising tide of collegiality was judicial individualism as a form of self-restraint. In his final year on the court, Heydon abstained from joining in even a single judgment with another justice.

To put this into context, one has to understand that the High Court has always been on contested ground to the extent that it has played a public role in Australia's political system. As the final interpreter of the constitution, it is often called on to resolve disputes that have far-reaching political consequences. But it must do this against the backdrop of a legal and political culture that is deeply suspicious of any perceived attempts by the courts to impose particular political values.

The question is whether it is possible for a court to interpret a constitution without saying something about such values. Many would say it isn't. This puts the judiciary in a difficult position.

For much of our history, the solution has been for judges to double down on rhetoric that emphasises their independence from these kinds of considerations, regardless of whether such claims are true or even plausible.

In Australia, the slightest whiff of the political about a judicial decision is apt to set off a frenzy of indignation. Compare this to the United States, where it is relatively commonplace for judges of the Supreme Court to publicly admit their ideological leanings.

It is this conservative legalism that Heydon exemplified during his time on the bench. It's no wonder then that critics of Heydon and of the royal commission have had plenty of ammunition to use over the last few days.

It is apparently beside the point that Heydon is no longer a judge, and that the royal commission is not a court, and thus not held to the same formal standards of scrutiny. Not even the Coalition seems keen to draw attention to these facts – note the repeated references to the commissioner as "Justice Heydon" – presumably because to do so would defeat the purpose of appointing a former judge to the position in the first place.

So instead the government has dug itself in, and left both Heydon and the royal commission open to the kind of criticisms that they have received. In doing so, they have reinforced the link between the trade unions inquiry and certainly deeply entrenched anxieties about the role of the judiciary in Australian public life.

Robert Woods is a doctoral candidate and lecturer at UNSW Law.