Does the law on actual and apprehended bias remain appropriate and sufficient to maintain public confidence in the administration of justice?
Where a party to litigation before the courts has concerns that the judge presiding over the matter may be biased, the party has two options. The first is to try to show that the judge is actually biased — but this is difficult to prove and is rarely alleged (JI1.8). More commonly, the focus is on appearances: a party will try to show that the circumstances might give rise to a reasonable perception that the judge might be biased (for example, because the judge is close friends with one of the witnesses). This is known as ‘apprehended bias’ (JI1.9). If apprehended bias is shown, judges must remove themselves from the case, even if they are sure that in fact they could decide the case impartially.
There is no legislated list of situations that will give rise to apprehended bias. As a result, judges are required to decide each case on its own facts, by reference to case law (JI7.60). The test for apprehended bias asks judges to look at the matter from the perspective of a fictional member of the public — the fair-minded lay observer. In Australia, the test for apprehended bias is
whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts ‘might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question’ (JI7.6) (emphasis added).
This test is designed to avoid even the appearance or suspicion of biased decision-making, while enabling the efficient and fair administration of justice (see further JI7.1). How? Framing the test in terms of what the fair-minded observer thinks, rather than what the judge thinks, asks judges to look at the application for disqualification objectively; from the perspective of the public and those affected by the decision (JI7.5, 7.20). It has been held that this is more likely to uphold public confidence in the administration of justice.
As discussed further in Background Paper JI7, some have questioned whether this law works appropriately to fulfil its rationale in upholding public confidence. One key criticism is that the construct of the fair-minded observer is a ‘flimsy veil’ for the judge’s own views about whether it is appropriate to hear a case (JI7.22). In practice, the fair-minded observer can be attributed lots of knowledge about the culture of the legal profession and of the case itself, more than an average member of the public could know (JI7.29, 7.32). As a consequence, preliminary research shows there can be a significant gulf between the actual views of the public-at-large, and the types of decisions reached by applying the test (JI7.32–33). Further, the case-by-case decision-making leads to unpredictable results about whether a judge should sit (JI7.30). This kind of uncertainty can be hard for litigants to accept and can undermine public confidence in the administration of justice — particularly when the existing procedure requires the judge who is the centre of the claim of bias to make the decision about whether or not to sit (JI7.37, JI2).
Background Paper JI7 also outlines a number of suggestions that have been made for reform of the test for apprehended bias. For example, some scholars suggest that a code or other official document could be developed to provide clarity as to circumstances that will require a judge to disqualify himself or herself (JI7.45). This could work like a traffic-light system of situations which: require disqualification (red), may require disqualification (orange), and are okay (green). Constitutional protection of the independence of the judiciary means that it may not be possible to introduce such a list through legislation in Australia (JI7.46). As an alternative, the ALRC seeks views in its Consultation Paper on whether there would be benefit in a judge-led process to agree and publish such a list (Question 4). Alternatively or in addition, the ALRC has proposed that the courts provide greater clarity to litigants through a court-issued document explaining the test (Proposal 3).
Does the test feel odd? Maybe to some (JI7.36). The idea that a judge is able to step into another’s ‘shoes’ to answer an introspective question does not necessarily sit easily with non-lawyers (JI7.36). However, on balance, most scholars, commentators, and judges suggest the test for apprehended bias remains a flexible and valuable tool in facilitating the efficient and fair administration of justice (JI7.38). While, of course, the fair-minded observer is a construct, its inclusion in the test has utility in reminding judges to decide applications for disqualification with the concerns of a non-judicial observer in mind (JI1.18, JI7.37).
Do you think the law on actual and apprehended bias gives sufficient clarity to decision makers, lawyers, and members of the public? The Consultation Paper asks a number of questions to prompt your answers – particularly relevant here are Proposal 3 and Question 4. Find out more about making a submission so we can hear your views.
Spotlight On: Proposals and Questions
View the full list of ALRC proposals and questions: Judicial Impartiality: Consultation Paper (CP 1, 2021)
|Each Commonwealth court should develop and publish an accessible guide to recusal and disqualification (‘Guide’) for members of the public. The Guide should be easy to understand, be informed by case law and the Guide to Judicial Conduct, and refer to any applicable Rules of Court or Practice Directions/Practice Notes.
In addition to summarising procedures, the Guide should include a description of (i) circumstances that will always or almost always give rise to apprehended bias, and (ii) circumstances that will never or almost never give rise to apprehended bias.
|Would there be benefit in a judicial officer-led project to identify more comprehensively circumstances in which apprehended bias will and will not arise?