Anna Olijnyk

BY ANNA OLIJNYK

The controversy surrounding Royal Commissioner Dyson Heydon AC QC has exposed the rule against apprehended bias to public scrutiny. And the public was not wholly impressed by what it saw.

Public lawyers should care about this: the rule against apprehended bias is supposedly all about public appearances. The test for apprehended bias in Australia directs attention to how a situation would appear to the fair-minded lay observer. The rationale for the rule is that, to preserve public confidence in the justice system, justice must manifestly and undoubtedly be done and be seen to be done. So if the public tell us there is something suspect about the test for against apprehended bias, we should at least consider whether they have a point.

In this post, I will briefly consider the scepticism expressed in relation to the current ‘self-recusal’ procedure for determining bias, before turning to the public suspicion of the test itself, specifically the mythical construct of the ‘fair-minded lay observer’. Each point demonstrates a gap between public perceptions and legal principle. In the last part of the post I consider the arguments for maintaining the test for apprehended bias in light of this gap.

Self-recusal

There was widespread scepticism expressed by the media about the process that was being followed to determine the disqualification application: the person who decided whether the Royal Commissioner appeared to be biased was… the Royal Commissioner.

The self-recusal process has been criticised by some legal academics and lawyers. Even some judges have accepted it is a bad idea: former High Court Justice Ian Callinan said that it placed a judge against whom a bias application is made in an ‘invidious position’.

Self-recusal demands of the decision-maker an almost inhuman level of impartiality. It ignores the psychology, known as the ‘bias blind spot’ that makes it harder to spot bias in oneself than in others.

The public seemed to reach the critical position that self-determination of disqualification might be a bad idea more rapidly, and with greater clarity, than those in the legal community.

We can trust judges to be impartial

Embedded in the law of apprehended bias is the assumption that judges – more than other people – can be trusted to decide cases impartially.

The fair-minded lay observer is taken to know – as Heydon noted in his reasons – that a judge’s ‘training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.

From within the legal community, this makes sense: judges have been steeped in the ethos of impartiality since their first day at law school. Of course, judges are not infallible, and lawyers recognise that an individual’s values, background, personality – even when they last ate – can play a part in decision-making. This is why checks and balances, such as appeals and the rule against bias itself, exist. It is also why there are many opportunities for judicial education.

But to the outsider, there is a leap of faith required in order to accept that judges can be trusted to be more impartial than other individuals. This is true of our perceptions of many highly trained professionals. There’s a leap of faith involved in trusting meteorologists to tell us what the weather will be in a week’s time. Perhaps the difference is that the relevant characteristic of a judge – impartiality – is so relatable. Because everyone has a sense of their own ability to be impartial – and, because of the ‘bias blind spot’ mentioned earlier, each person’s sense of their own impartiality is likely to be inflated – it may be more difficult to accept that someone else has significantly better faculties in this area.

Look closely

The cases establish that the fair-minded lay observer is not somebody who knows some of the facts, and does ‘not wish to know others’. They drill down into the detail and apply rigorous reasoning processes.

Commissioner Heydon meticulously ran each of the unions’ arguments through the steps of the ‘fair-minded lay observer’ test as articulated in Ebner and Isbester. What is the factor said to give rise to the appearance of bias? How might this factor cause the decision to be made other than on its merits (having regard to the Royal Commission’s terms of reference)? How reasonable is the apprehension of that deviation being caused by that factor?

The unions’ submission was, in essence, that Heydon’s acceptance of an invitation to give the Sir Garfield Barwick lecture – characterised by the unions as a ‘Liberal Party event’ – created an association between Heydon and the Liberal Party and therefore, in the context of an intensely party-political Royal Commission, suggested he might favour one side of politics over the other.

In the course of this reasoning, Heydon was at times critical of the looseness of the unions’ arguments. The phrase ‘Liberal Party event’, for instance, could cover a range of functions. And the Royal Commission was not, in Heydon’s view, as politically charged as the unions submitted. Former Prime Minister Julia Gillard and Opposition Leader Bill Shorten were subpoenaed to give evidence, but that was because of their involvement in unions, not because of their political positions. The terms of reference themselves make no mention of political parties. Nor is the ALP synonymous with the union movement. Some people belong to unions and don’t vote Labor.

Ordinary people don’t tend to think like this. They’re more likely to form their opinion based on matters of general impression. Their opinion of the situation might be much closer to the broad argument advanced by the unions: that Heydon’s acceptance of the invitation suggested an allegiance to the Liberal Party.

This doesn’t mean that the test for apprehended bias should change to a test of public perception. As discussed later, there are important reasons for not subjecting the test to the vagaries of public opinion. But it does illustrate the wide gap between the relevant public and legal standards.

Knowledge of the legal scene

Commissioner Heydon’s reasons are replete with references to matters that are really artefacts of the legal social scene: not law per se (Although he does attribute to the fair-minded lay observer an understanding of New South Wales electoral laws), but things lawyers are likely to know.

Should we really expect the fair-minded lay observer to know the apparently ‘notorious’ fact that Heydon does not own a computer and can’t send or receive emails? Or to remember Sir Garfield Barwick primarily for his ‘glittering’ legal career? Or, for that matter, to have a sense of the going rate for a three-course dinner in a Sydney hotel?

Once again, there is a difference between what the fair-minded lay observer knows and what an ordinary member of the public knows.

The ordinary member of the public and the fair-minded lay observer

Of course, the fair-minded lay observer is a hypothetical person and not an ordinary member of the public. Heydon’s decision was not about public perceptions. Public pressure on Heydon to step down played no role in his decision.

This didn’t sit particularly well with the public. How can a public figure be so immune from public opinion? Does this mean the public’s opinion doesn’t count, or isn’t right? There’s certainly some insensitivity in the phrase ‘fair-minded lay observer’: it casts an unnecessarily broad slur on the intellectual qualities of anybody who disagrees with a ruling on apprehended bias. ‘Detached’ or ‘disinterested’ might be better.

To the layperson, there’s also something odd – even vaguely absurd – about a test that requires the decision-maker to imagine they are a different, imaginary, person. Lawyers, on the other hand, are taught this kind of reasoning in week 1 of their torts course when they meet the man on the Clapham omnibus. Again, the test relies on the judge being able to deploy expert training to engage in a complex intellectual exercise.

Despite these oddities, the Heydon controversy demonstrated why we need the fair-minded lay observer test, or something like it.

It’s hard not to think that each person’s perspective on Heydon’s position reflected their own pre-existing political views. Those who had, all along, seen the Royal Commission as a political stunt pounced upon the claim of bias to add force to the claims they’d been making since the Commission was established. Those on the other side of politics saw the claim of bias as a gross exaggeration of the facts and a tactical move by the unions to whip up public opposition to the Royal Commission.

So we need a test that takes the political heat out of the situation. These matters can’t be decided based on public opinion; that would undermine the independence of the judiciary (Heydon was not, of course, acting as a judge but the point I am making is about the application of the test in general, including to courts). Judges ought to decide cases based on a fearless, independent view of the merits of the case and not be swayed by public opinion.

Nor should the rule against apprehended bias be open to manipulation by well-resourced or media-savvy parties. It is conceivable that the media may latch onto one side of a story, thus shaping public opinion without engaging in a nuanced assessment of the facts.

Natalie Hickey has observed that the fair-minded lay observer is more like a demigod than an ordinary human being. Maybe that’s the point. The fair-minded lay observer is not supposed to be an ordinary person. They are supposed to personify the ideal model of how we should assess claims of bias. We cannot have these claims determined by the fair-minded lay observer because that person does not exist. The closest thing we have is a judge, imagining they are the fair-minded lay observer.

A bias blind spot of our own?

The high profile application against Commissioner Heydon for apprehended bias has exposed a gap between public perceptions and legal standards. This does not necessarily indicate a problem with the test for apprehended bias. But it does point to the need for some self-reflection when applying the test.

Some aspects of the law, such as the idealised lay observer, are certainly defensible – although we may need to be clear that the rationale for this construct is not simply the maintenance of a good public image. Others – most obviously the self-disqualification procedure – are harder to justify. Others, like the degree of knowledge attributed to the fair-minded lay observer, need to be watched carefully to make sure the lay observer does not accidentally turn into a lawyer.

The legal community has its own language, culture, heroes, values and thought patterns. In a test explicitly based on the perceptions of a lay person, we should beware of assuming, unconsciously, that those characteristics are shared by the general public. Otherwise, we risk exposing a bias blind spot within the legal community.

Dr Anna Olijnyk is a lecturer at the Adelaide Law School, University of Adelaide.

Suggested citation:  Anna Olijnyk, ‘Apprehended bias: a public critique of the fair-minded lay observer’ on AUSPUBLAW (3 September 2015) <https://auspublaw.org/2015/09/apprehended-bias/>.