Clarity and complexity in the bias rule
journal contributionposted on 2021-01-01, 00:00 authored by Matthew GrovesMatthew Groves
An apprehension of bias will arise if courts find a fair minded and reasonably informed observer might consider that a decision maker might not approach his or her task with a sufficient level of impartiality. This two-fold test to assess bias claims through the eyes of a hypothetical observer reflects the combined effect of Webb v R (1994) 181 CLR 41 and Ebner v Official Trustee (2000) 205 CLR 337. This article examines issues that were not resolved by and apparently clear approach created by Webb and Ebner. The article argues that notions of impartiality are central to the bias rule but not capable of easy definition. It also argues that judicial assessment of bias claims through the eyes of an objective observer is necessarily limited. The article also analyses the recent decision of CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140, to illustrate the difficulties in assessing the impact of irrelevant, prejudicial information in claims of bias.