After a hearing on Friday, Dyson Heydon AC QC has reserved his decision on whether he will stand down as the royal commissioner investigating trade union corruption. Heydon, a former High Court justice, has faced calls to step down following revelations that he had accepted, and then withdrew from, an invitation to speak at a Liberal Party fundraiser.
Throughout his judicial career Heydon strongly advocated that judges should take a more restrained approach – a “black-letter” approach – to their role. He argued that only a black-letter approach could foster public confidence in the independence of the justice system.
So how has a former judge with an avowed commitment to judicial independence and probity found himself at the centre of a very public controversy over his own impartiality?
Heydon’s judicial philosophy
The Howard government appointed Heydon to the High Court in 2003 following a speech that was billed as his “job application” for the upcoming vacancy. In it, he set out his vision for the ideal judge. The judge should interpret the law “according to the books” and do so “incorruptibly”.
A core element of the rule of law, Heydon explained, was “an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures”, who must possess:
… a measure of independence from the wrath of disgruntled governments or other groups.
In this speech, Heydon called out the antithesis of the black-letter judge: the “activist” judge. The activist judge decides cases not by reference to established legal principles, but to further “some political, moral or social programme”. The activist judge uses cases to right social wrongs in accordance with the individual judge’s worldview.
Heydon’s activist judge is thus one engaged in activities that are political in nature. Fundamentally, for Heydon, the activist judge undermines public confidence in the whole legal system and opens the court to public attack.
In contrast, Heydon’s black-letter judge, he explained in his speech, contributes to justice in both its reality and perception. Such a judge must possess two characteristics:
One is a firm grip on the applicable law. The other is total probity.
Heydon as a black-letter judge
There is no doubt that Heydon was and is a brilliant legal mind, with a very firm grip on the applicable law. His distinguished legal and judicial career is credit to that.
Heydon’s legal brilliance did not guarantee, however, that he was influential while on the High Court. His approach was increasingly out of step with the court’s other members, particularly in the areas of implied rights and limits on government power, which he was reluctant to extend. His dissent rates would eventually earn him the moniker the “Great Dissenter”, and his frustration became increasingly evident in the tone of his judgments.
As a judge, Heydon also exhibited a particularly visible form of independence. Constitutional law academics Andrew Lynch and George Williams have referred to this as his pronounced “individualism”. By 2012, the year prior to his retirement, Heydon wrote every one of his judgments alone, even when he joined the result of the other justices.
Also in 2012, Heydon delivered another speech that caused a stir in the legal profession. It went part of the way to explaining his individualism. He referred to what he thought was one of the most dangerous threats to judicial independence: the pressure on judges to participate in joint judgments and the elevation of consensus as a value over individual intellectual integrity.
Apprehended bias and black-letter law’s shortcomings
There is a degree of sad irony that, as royal commissioner, Heydon has found himself steeped in controversy alleged to be undermining public confidence in the integrity of the justice system. Heydon prided himself throughout his judicial career – and rightly so – on the robust independence and intellectual integrity he brought to the role.
It is important to be clear that the claim made against Heydon is one of apprehended bias only. The test for apprehended bias is whether a “fair-minded lay observer” might reasonably apprehend that Heydon’s impartiality has been compromised by his conduct.
It might seem incongruous for a member of the general public to understand why Heydon is being asked to apply the test to himself. There is a whiff of apprehended bias in the very idea.
It is true that this practice accords with the ordinary legal process for apprehended bias claims. A person against whom an apprehended bias claim is made is expected to apply the test objectively by reference to the standards of the fair-minded lay observer. According to a traditional black-letter approach, the individual’s personal feelings will simply not enter the decision.
But can, as Heydon has argued throughout his judicial career, legal tests really be objectively applied by reference only to the law in the books – and unaffected, consciously or subconsciously, by the individual judges’ background, interest, values and morals? This question has given rise to some of the great ongoing debates of legal philosophy.
Psychological research found that we all suffer from what is known as the “bias blind spot”. This is the illusion that we all tend to be confident that our own decisions are made objectively and rationally, but happily infer that others suffer from bias when making their decisions.
None of this is an intentional misassessment of bias. But it may go some way to demonstrating the shortcomings of adhering to the view that legal tests can be applied with absolute objectivity.
It is likely that Heydon feels greatly pained by the application for his resignation for apprehended bias. He spent his entire judicial career crafting a judicial philosophy of the judge whose intellect, integrity and fidelity to the law would maintain the public’s confidence in the justice system and the rule of law. The application for Heydon’s recusal has underlined questions about the limitations of black-letter judging.
Gabrielle Appleby is an Associate Professor in UNSW's Law School.
Heather Roberts is a lecturer at the ANU College of Law.