The objectivity of the law

image of dyson heydonBy Penny Mulvey

Lawyers are trained to assess the merits of any case against the law. The arguments are not based around emotion, opinion, values or morals, but what the law actually says.

Is it possible for anyone, including a lawyer, to be entirely objective, not impacted by their own blindspots of personal history, values and belief systems?

That is the question that has been at the centre of debate about the integrity of two highly experienced legal minds, Professor Gillian Triggs, chairperson of the Australian Human Rights Commission and Justice Dyson Heydon AC QC, chairperson of the royal commission investigating trade union corruption.

Justice Heydon, a former High Court judge, has been accused of political bias after initially accepting an invitation from the lawyers branch of the NSW Liberal Party to give the Sir Garfield Barwick address. He is currently deliberating whether he should recuse himself from the Royal Commission after hearing submissions calling for his resignation on Friday 21 August.

Prof Triggs also faced repeated calls from the Federal Government to resign following the release of The Forgotten Children report into asylum seeker children held in detention.

Heydon and Triggs have both been accused of political partisanship, and the media, politicians, unions and left and right wing commentators have gone to town depending on their own particular political bent.

Prof Triggs told Crosslight “…that (stopping the boats) is what the Government sees as one of its greatest achievements. For the Australian Human Rights Commission, and me, to be challenging those policies, that cuts to a raw nerve for the Government.  I think that is why it has attracted so much vitriol.”

Fairfax’s Tom Allard writes of Heydon: The political stakes are immense, as are the consequences for the reputation of Heydon. He’s a man adored by many as a cultured and erudite individual of the highest integrity, loathed by others as pompous and overbearing, but universally acknowledged as a brilliant lawyer and academic of uncommon ability. 

Whilst Prof Triggs and Justice Heydon might be on two different sides of the political divide (and neither of them are confirming that proposition), they both remain committed to the integrity of the law. That is what gives them clarity and enables them to do what they do.

Justice Heydon rules on his own ability to remain as chairperson of the trade union royal commission tomorrow. Will this to go the question of the legal definition of bias? For the former High Court judge, it remains an intellectual legal question, as he told Friday’s hearing: “What I’m going to do is to commence work on a consideration of this interesting and in some respects complex matter,” he said.

The same commitment remains true for Prof Triggs: “I am a statutory officer and that is a position of independence which allows me to speak, based on evidence and based on the law as truthfully as I can…and that is what I believe I have been doing.”

To read more about Prof Triggs’ views on remaining true to your role, no matter how clamorous the dissent, see Crosslight’s exclusive interview with Prof Triggs.

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One Response to “The objectivity of the law”

  1. Peter Byrne

    Our judicial and quasi-judicial system operates on the basis that those making decisions are not “conflicted” in their decision-making. In determining whether or not such conflict exists, the law is clear that the appearance of conflict can, in many circumstances, be just as important as “real” conflict. The Royal Commission over which Mr Heydon presides has been seen by many as involving political elements. This is inevitable, given that it was set up by a Liberal Government to investigate trade union practices, trade unions being primary benefactors of the Liberals’ political opponents, the ALP. Indeed, of course, the ALP was first conceived from, and arose out of, the trade union movement in Australia. In these circumstances, Mr Heydon’s initial agreement to speak at a Liberal Party fundraising event can only be seen as negatively affecting the public’s perception of him as unbiased, whether or not such perception is justified. Accordingly, he has no alternative than to step down as Royal Commissioner. Furthermore, the Commission’s work and hearings to date are inevitably tainted now that this issue has come to light. Real issues arise as to whether the Commission can or should continue to operate. This is especially so given the nature of the way Royal Commissions are set up and operate.