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The imaginary observer of the bias rule

journal contribution
posted on 2012-08-01, 00:00 authored by Matthew GrovesMatthew Groves
A successful claim of bias requires its claimant to establish that a source of alleged bias might cause a decision maker not to approach a matter impartially. The courts decide this issue by asking what a fair minded and informed observer might apprehend in the circumstances. This hypothetical observer is a legal fiction used by the courts to ensure that claims of bias are decided by an objective standard that reflects views of the wider public rather than the court itself. The hypothetical observer has been questioned in recent years. Some argue that the courts attribute so much knowledge to the observer that they are, in truth, applying their own views. The observer has also been criticised as a complex and obscure device. This article examines the principles governing the hypothetical observer and considers whether it should be retained as part of the test for bias.

History

Journal

Australian journal of administrative law

Volume

19

Issue

4

Pagination

188 - 201

Publisher

Thomson Reuters (Professional)

Location

Rozelle, N.S.W.

ISSN

1320-7105

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal

Copyright notice

2012, Thomson Reuters (Professional)

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