Dyson Heydon

He's not in Michael Kirby's league yet, but Justice Dyson Heydon has a growing reputation as the High Court's new great dissenter.

Heydon, who was appointed to the bench by John Howard in 2003, has tripled his dissent rate this year to 48%, according to legal affairs website Time Base.

He was the only High Court judge to declare that the Gillard government's proposed asylum seeker swap deal with Malaysia was lawful, and has been on the losing side of the argument in several important recent cases. These include the court's dramatic decision to allow 100,000 people who had been excluded from the electoral role to vote at the last federal election, the South Australian bikie law case and the Pape fiscal stimulus case.

"One barrister told me recently that he's more right wing than the Duke of Marlborough," legal affairs commentator Richard Ackland tells The Power Index. "He's on a lunar trajectory all of his own."

But although Heydon, a military history buff, may be losing many battles today, it doesn't mean he won't win the war.

"Dissenting itself can be quite influential," constitutional law expert George Williams tells The Power Index. "If you think about influence on the high court, it's not always the immediate influence that's most important but the long-term vindication."

He says dissenting judgements can drive the law in new directions by kick-starting debate in the legal fraternity and wider community.

Michael Kirby has previously said that he hopes his dissenting judgements will be vindicated in the long term.

"Occasionally progress is only attained by candid disclosure of differences, by planting the seeds of new ideas; and waiting patiently to see if these eventually take root," he told The Sydney Morning Herald in 2009.

Heydon is still famous in legal circles for a 2002 Quadrant dinner speech in which he criticised judges on the Mason court for "judicial activism", which he equated to the "death of the rule of law". The speech was seen by some commentators as a 'job application' for the High Court.

The former NSW court of appeal judge -- who earned the nickname "dirty Dyson" when he was a young rugby union player -- will be forced to step down from the bench in March 2013 when he turns 70.