Former High Court judge Dyson Heydon’s (Heydon) credibility as the royal commissioner investigating corruption into trade unions was recently thrown into doubt.

Calls were made to remove Commissioner Heydon on the ground of “apprehended bias”. The Commissioner took 10 days to reach a decision, eventually coming to the conclusion that there was no logical connection between the unions’ argument about perceived bias and the actual issues for determination at the royal commission. 

What is apprehended bias?

In a bid to maintain integrity in the justice system there is a requirement that officials such as royal commissioners and judges not only be impartial, but also appear to be impartial. It was not suggested that Commissioner Heydon held any bias merely that his connections to the Liberal Party had created the appearance that he did. Apprehended bias was explained in Livesey v New South Wales Bar Association [1983] HCA 17 to be a situation where:

“… the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”

The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias laid down in Johnson v Johnson is;

 “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”

There are three rationales underlying the standard of a “lay fictional observer”:

(a) The lay observer (that is a person who is not a lawyer) is used as the applicable yardstick to ensure that the test is not based purely upon the assessment by some judges of the capacity or performance of their colleagues;

(b) The reliance on a lay observer recognises that, in the absence of actual bias, the only relevant concern is to ensure that the public retains confidence in the judicial system;

(c) An objective test is necessary because recusal applications will usually be heard by the judge against whom the apprehended bias is alleged.

While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the ability of a particular judicial officer, the reasonableness of any suggested apprehension of bias has to be considered in the context of ordinary judicial practice in the area.

The decision

Commissioner Heydon ultimately dismissed the claims. In coming to this conclusion it was required that all facts and evidence be assessed. The decision noted all of the unions’ concerns but made it clear that the Commissioner considered that accusations that his conduct created a perception of bias could not logically follow through to a reasonable apprehension of bias in his work at the royal commission.

For more information please contact ERA Legal.