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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Thursday, September 03, 2015

An article on Dyson Heydon's situation and apprehended bias

I'm linking to this article published over at The Conversation mainly for my own future reference. It's a rather strange piece because:

1. It provides quite a powerful explanation and defence of the practice whereby decision-makers are, in the first instance, asked to consider for themselves whether to recuse for apprehended bias: the obvious alternatives would be inefficient, and could also have perverse effects.

But

2. It then concludes: "The idea of a judge determining the credibility or completeness of their own version of events is simply indefensible."

No it isn't! By this point, the author has just told us how the traditional practice can be defended on grounds related to justice and efficiency. To be fair, she suggests reforms rather than completely abolishing the practice. But again, this tends to show that the situation is not "completely indefensible" even if there is a case for some reforms. There are good reasons for it and for not tampering too much with it. The issue is not black and white.

I'm not, for the purpose of this post, taking a stance on any substantive issue in the current political controversy. Perhaps Heydon's decision not to recuse from the current Royal Commission into the unions will be overturned by court proceedings. I could put an argument why the case against him is weak, but I could also put an argument as to why there are nonetheless some exceptional circumstances that might justify it scraping over the line. As so often with legal disputes, there are considerations either way.

Meanwhile, it's just odd that writers sometimes feel the need to offer a hardline, strongly expressed, "punchy" conclusion when the whole direction of the argument they've just put is, rather, to the effect that there are various pros and cons to consider. This journalistic practice may not always be "completely indefensible", but it's often unnecessary and polarising.

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