15 Oct 2015

Apprehended bias: Apprehended easily but difficult to establish

by James Robinson, Julia Virgo

It is actually difficult as a matter of law to establish an appearance of bias ‒ it is highly dependent on degree and context.

Following a turbulent period of public scrutiny in the second half of August, former High Court justice Dyson Heydon has dismissed applications made by several unions seeking his recusal (or removal) from the Royal Commission into Trade Union Governance and Corruption. The applications centred on revelations that he was to be the keynote speaker at a Liberal party event, before withdrawing the same morning those revelations were publicised.

Heydon's connection to the event

In April last year Heydon agreed to speak at this year's Sir Garfield Barwick lecture, conditioning his acceptance on the Commission having concluded its work by that time. Although the Commission's terms were subsequently extended to December 2015, at Heydon's request, a NSW Bar Association alert this April promoting the lecture listed him as the keynote speaker.

Emails released by the Commission detail the events surrounding his decision to withdraw but cloud the issue of his knowledge of the nature of the event. Following questions concerning the April alert, a Bar Association staff member contacted Counsel assisting the Commission on August 12 asking "Re the Barwick lecture: Does Dyson know this is connected to the Liberal Party?" Earlier that same day an organiser of the event (Sydney barrister Gregory Burton) emailed Heydon confirming that "although nominally under the auspices of the Liberal Party lawyer's professional branches, this is not a fundraiser".

The following day, Heydon's personal assistant wrote to Burton; "If there is any possibility that the event could be described as a Liberal Party event, [Heydon] will be unable to give the address, at least while he is in the position of royal commissioner". Fairfax Media reported Heydon's involvement in the lecture within the next few hours, subsequent to which his office announced that he had withdrawn from the event

Apprehended bias

Submissions by the Unions stressed that no allegations of actual bias were being made against the Commissioner. They argued that his conduct, in not withdrawing from the event earlier, had created the appearance of bias sufficient to warrant his recusal.

Apprehended bias flows from the legal principle that "justice should not only be done, but should also be seen to be done". The relevant legal test is derived from the High Court's decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and applies to the recusal of judges as well as commissioners. Counsel for the ACTU argued that "a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."

Though the Unions contested that the requisite threshold is low, given the "double might" test, it is actually difficult as a matter of law to establish an appearance of bias. The rule does not have a "hair trigger" and is highly dependent on degree and context.[1] It is insufficient if the circumstances giving rise to the claim merely create "a vague sense of unease or disquiet".[2] An example of a successful case for apprehended bias is In Re Pinochet [1999] 2 W.L.R 272. The UK House of Lords set aside the extradition of General Pinochet to Spain following submissions that a deciding judge, Lord Hoffman, was affected by apprehended bias. Amnesty International had been granted leave to intervene in the proceedings against Pinochet, and Lord Hoffman was a Director and Chairperson of an organisation created to undertake the charitable functions of Amnesty International within the UK. It was held that Lord Hoffman could be seen to have been making judgments affecting his own cause.

In Michael Wilson & Partners Limited v Nicholls (2011) 282 ALR 685, the High Court of Australia (on which Heydon sat at the time) also confirmed the need to precisely articulate the connection between the events said to give rise to the apprehension of bias and the possibility of the judge departing from impartial decision-making. In that case, a judge who had determined a number of ex parte applications by one party, declined to recuse himself when challenged by the other parties just before the start of the final hearing. They argued that the decisions reached by the judge on those applications suggested that he had pre-judged issues in the case.

The High Court found that in none of the ex parte applications did the judge determine any issue which would need to be decided at final hearing. Accordingly, the judge's findings on the ex parte applications could not be said to impair his decision making during the final hearing.

Union applications

The Unions drew upon the context of the Commission to add weight to their applications. Characterising the Commission as extraordinarily politically-charged, they argued that Heydon's prolonged intent to speak at the Liberal event (despite the extension of the Commission until December 2015) ensured the fair-minded observer "would be left in a state of doubt sufficient to think that [he/she] might not be able to bring an impartial mind."

Before the hearing Heydon commented that he had "overlooked" several things; the earlier condition placed on his acceptance and the previous correspondence making clear the Liberal Party connection. The Unions argued these assertions would confuse the fair-minded observer, given Heydon's renowned intellect and his "mind like a steel trap". These qualities also raise doubts over Hayden's failure to notice the fundraising element of the event, as the invitations came with instructions to make the $80 per head attendance cost for the lecture and dinner through Liberal Party donation forms.

Heydon's decision

On August 31, Heydon delivered a 67-page decision dismissing the applications by denying that a fair-minded observer would doubt his impartiality. His detailed reasons accord with the substantive law, as he argued that what was required for disqualification was "something more than mere party membership or attendance at party functions, eg. active support of the organisation, or substantial involvement, or proselytising". Highlighting that the requisite causal link between his actions and the intentions of the association was missing, he wrote; "an address about a topic unrelated to the possible goals of the party with which the two lawyer groups are associated cannot give rise to an apprehension of bias."

Heydon further confirmed that at all times he did not understand the event to be a Liberal Party fundraiser and denied that a fair-minded observer would view the event as such. He noted that an $80 cost for a three course meal in Sydney was quite reasonable.

Lasting effect on the Commission

Though Heydon's judgment is legally sound, there is some truth to a remark by a political commentator that he "gave a lawyer's response to a layman's test". The fair-minded lay observer is considered to be more informed than the average person, however it is arguable whether they too could have delivered a 67-page opinion on the matter.

Further, royal commissions are inherently political instruments, bound by government-drafted terms of reference and equipped with investigatory and coercive powers that are extra-judicial in nature. Heydon would most likely survive a legal challenge of his decision, but given the context of the affair it has given the Commission's opponents a few more rounds of political ammunition.


Thanks to David Hamer for his help in writing this article.

[1]Matthew Groves, "Public statements by judges and the bias rule" 40 Monash University Law Review 1, 116.Back to article

[2]Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424, 441 per Weinberg J.Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.