...in this series include The Law on Judicial Bias: A Primer (December 2020), Recusal and Self-Disqualification Procedures (March 2021), The Federal Judiciary (March 2021), Conceptions of Judicial Impartiality (April 2021), Ethics, Professional Development, and Accountability (April 2021), and Cognitive and Social Biases in Judicial Decision-Making (April 2021)
Actual and apprehended bias
3. In Australia, including in relation to the federal judiciary, the law on bias is
predominantly found in common law.2 Two different types of bias may be alleged — actual or apprehended, reflecting the imperative that justice must both be done, and be seen to be done.
4. A claim of actual bias requires proof that a decision-maker approached the issues with a closed mind or had prejudged them and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.3
This is a subjective test. It looks to what is actually going on in the judge’s mind.
5. Apprehended bias looks instead to perceptions, and considers the matter from the
perspective of how it may appear. This does not require any conclusion ‘about what factors actually influenced the outcome’.4 It is therefore an objective test — looking at
how the matter is perceived from outside.
Test for apprehended bias
6. The test for apprehended bias in Australia 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’.5
1 See in particular Australian Law Reform Commission, The Law on Judicial Bias: A Primer (Background Paper JI1, 2020)
[10]–[18].
2 Although a number of statutory provisions also criminalise judges exercising jurisdiction in matters in which they have a personal interest: see, eg, Crimes Act 1914 (Cth) s 14, in relation to the exercise of federal jurisdiction.
3 Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 652, citing Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 [37]–[39].
4 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J concurring). 5 Webb v The Queen (1994) 181 CLR 41, 67 (Deane J). See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 350 (Gleeson CJ, McHugh, Gummow and Hayne JJ). 7. This test is applied in two steps: first, identification of what it is that may lead to bias, and second, identifying the logical connection between the source of bias and the feared
negative impact on the decision.6
8. In Isbester v Knox City Council,7 Gageler J employed a third step in the application
of the test: ‘consideration of the reasonableness of the apprehension of’ the deviation from impartiality as suggested by the party claiming bias.8 This step was first hinted at in
Ebner, where the court suggested that only after the first two steps of the test had been
resolved, could the ‘reasonableness of the asserted apprehension of bias be assessed’.9
The existence of such a third step remains unsettled,10 and it has been treated with caution
by the Full Federal Court of Australia (‘Federal Court’).11
9. At the time of publication, a case concerning the test for apprehended bias is pending before the High Court of Australia (‘High Court’),12 so the principles discussed here may be developed further in the near future.
6 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow, Hayne JJ, Callinan J
concurring).
7 Isbester v Knox City Council (2015) 255 CLR 135.
8 Ibid 155–6.
9 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345.
10 Matthew Groves, ‘A Reasonably Reasonable Apprehension of Bias’ (2019) 41(3) Sydney Law Review 383, 388.
11 CNY17 v Minister for Immigration and Border Protection (2018) 264 FCR 87, 92.
12 Charisteas v Charisteas & Ors [2021] HCATrans 28 (special leave to appeal granted from Charisteas v Charisteas [2020] 60
Fam LR 483).
13 Sir William Blackstone SL KC, Commentaries on the Laws of England, (Clarendon Press reprinted by Legal Classics Library,
first published 1765–1769, 1983 ed), Volume III, 361.
14 John Tarrant, Disqualification for Bias (Federation Press, 2012) 19; Simon Young, ‘The Evolution of Bias: Spectrums, Species
and the Weary Lay Observer’ (2017) 41 Melbourne University Law Review 928, 929.
15 Dimes v Proprietors of the Grand Junction Canal [1852] 3 HLC 759; 10 ER 301.
16 See further Tarrant (n 14) 33.
17 Ibid.
18 R v Rand [1866] LR 1 QB 230, 232–3 (Blackburn J, Cockburn CJ and Shee J concurring).