By Tim Maybury -
Snapshot
- The ‘double might’ test remains the benchmark for apprehended bias in Australian law, requiring that a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to a case.
- However, novel circumstances continue to challenge that doctrine and recent cases indicate the unpredictable ways in which apprehended bias might impact litigation.
- This article refreshes the basics of apprehended bias, and surveys three recent and contentious cases that highlight the importance of context, the cumulative effect of conduct and logically connecting conduct with apprehended bias
Procedural fairness – which requires decisions to be made by adjudicators who are independent and impartial, and the importance of ensuring that justice is both done and seen to be done – is fundamental to maintaining public confidence in the administration of justice in Australia. A key safeguard in this respect are the rules against bias which prevent decision makers from exercising their power if they are actually or ostensibly biased.
This article takes a closer look at one species of the rule: apprehended bias. It offers practitioners a refresher on the relevant principles and examines a selection of recent cases which have brought them into focus.
The apprehension of bias principle: the ‘double might’ test
The classic pronouncement of the apprehension of bias principle remains that given by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (‘Ebner’). The case concerned a judge who disclosed his directorship in a family trust company which held shares in a bank that was a creditor of the bankrupt defendant in the proceedings before him, thereby giving rise to the judge having an indirect pecuniary interest in the outcome of the proceeding.
