What would Willis do…..if he were Dyson Heydon?

Since my work on Justice John Walpole Willis, I find myself measuring current events in the judicial/political realm against the criterion of “What would Willis do?”  Justice  Dyson Heydon, the commissioner sitting on the Royal Commission into Trade Union Governance and Corruption  has spent the weekend contemplating whether the fair-minded observer would ‘apprehend’ bias in his initial acceptance to make the Sir Garfield Barwick oration at a Liberal [i.e. conservative] Party function. I wonder what Willis would do were he in the same situation.

Of course, the question is moot as the commissions of a colonial judge in the 19th century and a Royal Commissioner appointed in March 2014 are  completely different.  As a colonial judge appointed by Whitehall, Willis was expected to support the executive government, albeit balancing this against his own professional commitment to the ‘rule of law’. It was this assumption of loyalty to the government that underpinned the whole basis of a colonial judicial appointment.  Appointment as a colonial judge was ‘at pleasure’ (the pleasure of the Queen-in-Council and the British Government, that is) whereas appointment as a judge on the English bench was ‘during good behaviour’ with the judiciary intended to be largely independent of Parliament.

There are those who would argue (myself included) that this particular Royal Commission is, and has been, political from its very inception.  The choice of Royal Commissioner falls to the Prime Minister, and no Prime Minister would appoint a Commissioner that he felt would be inimical to the whole project.

Willis often cited Lord Mansfield as a model, most particularly Mansfield’s insistence on not bowing to popular opinion during the Wilkes trials.  “Fiat justitia ruat caelum” declared Willis, following Mansfield (“Let justice be done though the heavens fall”) and Willis frequently declared that he did not seek popularity or the approval of others.  These ‘others’ often tended to be governors and his brother judges. Despite his insistence that he eschewed popularity, many of his most controversial statements fed right into the popular local politics of the day.

In this regard, Heydon likewise looks to black-letter law rather than popular opinion.  Like Willis he, too, dissented from his brother judges.  In 2013 Professors Andrew Lynch and George Williams of UNSW analyzed Heydon’s performance on the High Court and found that he dissented on 40% of the matters on which he sat. Gabrielle Appleby has written a good article on The Conversation website on Heydon as a ‘black-letter’ judge, as does Tom Allard in The Age.  Richard Ackland in the Saturday Paper gives a rather more damning appraisal.

So what would Willis do? Pure speculation and ‘what-if’ery here, but I don’t think he’d stand down. He would see even the raising of the issue as a personal attack, and would turn it around onto his critics, the unions.  He would  almost certainly give a long and learned justification of whatever he decided to do, steeped in judicial and biblical allusions.

What will Heydon do? I have no idea, but I suspect that he won’t stand down either. I may be wrong.