Trade Union Royal Commission: Why apprehended bias applications are hard to win

By Natalie Hickey, September 1, 2015

Asking a judge to step aside for apprehended bias is one of the most acutely uncomfortable experiences one can have in court. The law requires the application to be made promptly. It must also be made to the presiding judge.

Bias hardly goes hand-in-hand with self-awareness. Yet an apprehended bias application asks the decision maker to apply super human skills: Decide your own future, by viewing your own conduct through the lens of a hypothetical person whose characteristics you are unlikely to share. No wonder these applications are so hard to win. This is not the fault of the decision maker. It is the fault of the system.

Asking decision makers to judge their own conduct

Required to determine his own fate, Royal Commissioner Dyson Heydon AC QC pondered the peculiarity of this practice when dismissing an application that he recuse himself from presiding over the Trade Union Royal Commission: “What are the prospects of success in making an application against a Royal Commissioner [for apprehended bias], it might be said, when that Commissioner hears the application?” (at [30]). Avoiding a direct answer to the question (such as, say, ‘not much’), the Commissioner noted that this is at least a custom and possibly also a rule of law.

The nature of our adversarial legal system might help explain why apprehended bias applications must first be made to the presiding judge. There is always a winner and a loser, and sometimes we have to be on (ahem) the other side. A Royal Commission shares many of the adversarial attributes of a court even though its status is more opaque than a winner-takes-all approach.

Like almost every legal practitioner, I have been involved in cases where I felt the energy from the bench going all one way; against my client. Whilst difficult to admit, for the most part this was likely for all the right reasons. The law was likely in favour of the opponent’s position.

If disgruntled parties had carte blanche to run off to another judge to say ‘My judge doesn’t like me’, there is a risk that courts could become clogged with apprehended bias applications, or worse.

Yet every now and again, the suspicion grows that the judge has a predisposition against the client for reasons separate from the arguments put. Several times in my career in private practice, this led to a conference with counsel to discuss ‘what to do’. On almost every occasion, we agreed ‘do nothing’. For no other reason, if you make such an application, you risk creating an atmosphere of potential hostility such that your client’s worst fears become a self-fulfilling prophecy.

The principle of “say it to my face” is so much harder to apply in practice. We know this from our daily lives. Now imagine having to say it to the judge’s face in the formality of a court or commission room. It requires great courage for a barrister to make an apprehended bias application. It could be a career-limiting move. It follows that these sorts of applications tend to be made with great care, and not at the whim of a disgruntled client simply on the losing end of a case.

Whilst the principle ‘say it to my face’ may have a sensible basis, it puts the presiding judge in an embarrassing and unenviable position. Rarely does a presiding judge say ‘you know, you were right’, and agree to stand down. It is far more likely that the matter will go on appeal. Therefore, one wonders whether in the interests of time and costs, there must be a better way.

Fair Minded Lay Observer has Deity Status

With this Royal Commission, whether rightly or wrongly, the parties felt compelled to act. A number of unions sought that Commissioner Heydon stop presiding over the Royal Commission on grounds of apprehended bias. The application stemmed from revelations that he had agreed to deliver the Sir Garfield Barwick Address on 26 August 2015 at a NSW Liberal Party fundraiser. Commissioner Heydon maintains he was not aware it was a fundraiser, and withdrew from the event once he found out. However, the impression conveyed, so it was argued, was that his apparent alignment with the Liberal Party indicated a predisposition against unions, its members and essentially just about everyone before the Royal Commission, because of their supposedly natural alignment with the Labor Party.

The issue was along the lines of: If many guests attending the impugned dinner at “Castlereagh Hotel’s elegant dining room (old Masonic Club in Castlereagh between Market and Park)” were mortal enemies of Labor Party types, then might reasonable people think that Commissioner Heydon might also be in the ‘enemy camp’, and not bring an impartial mind to the matters before him?

The use of two ‘mights’ above is no accident, because this is essentially the ‘double might’ legal test one applies to questions of this kind. The popular decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 (in apprehended bias circles anyway), puts it this way:

 … 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. (at [6]; see [34] of Heydon reasons).

On its face, having regard to the two ‘mights’, this is an absurdly low test. In reality, it is an absurdly high test to satisfy.

Partly, this can be explained by the attributes of the fair-minded lay observer. Having regard to various authorities referred to by Commissioner Heydon in his reasons, the fair-mind lay observer is:

• Not a lawyer.
• Reasonable and fair-minded.
• A person who knows all the circumstances of the case; an informed person who “is the sort of person who takes the trouble to read the text of an article as well as the headlines”.
• Not a person who makes snap judgments; sees both sides of the argument.
• A person who knows commonplace things and is neither complacent nor unduly sensitive or suspicious: “Her approach must not be confused with that of the person who has brought the complaint.”
• A person who understands that judicial officers have the ability to discard the irrelevant, the immaterial and the prejudicial due to their years of relevant training and experience.

In other words, this bastion of virtue is not an ordinary human being. The Fair Minded Lay Observer is more like a Demi God.

Partly, this is good. The importance of fairness helps dispose of the risk that a judicial officer might be forced to step aside for no other reason then mob mentality.

However, because the ‘double might’ test is seen through the eyes of a hypothetical person who is a bit too good to be true, it increases the prospect of an outcome which causes normal, mainly fair minded people (but who have good days and bad days) asking: “Say What?!”

A review of Commissioner Heydon’s reasons for decision leads to the occasional wince, because the conduct of the ‘fair minded lay observer’ seems significantly removed from that of the every day Australian.

The hypothetical person postulated by Commissioner Heydon is:

• Someone who appreciates that the terms of reference of the Royal Commission do not refer to the “Labor Party” (the apparent inference then being, it’s not about the Labor Party).
• Someone who thinks that allegations that the Royal Commission is ‘politically charged’ are likely exaggerated.
• Someone who understands that whilst this is an investigation into Trade Unions, it is not inevitable that union members vote Labor.
• A person who expects arguments about alleged apprehended bias to be put with great precision (not found to have happened here).
• A person who appreciates and has a nuanced understanding of the life of Garfield Barwick as an eminent individual and his legacy;
• A person not afraid to enjoy a segue into a detailed discussion of a range of other historical figures (for reasons not entirely understood) starting with Robert Jackson, Chief Prosecutor at Nuremberg, through to Motilal Nehru, Mohammed Ali Jinnah and Mahatma Gandhi in the last decades of the Indian Empire, concluding with a former Solicitor-General, Sir Maurice Byers (at [92]).
• A person who appreciates that judges speak frequently at functions of all kinds.
• A person who understands that this was intended to be a legal speech, not a political speech.
• Perhaps most importantly, a person who would not confuse predisposition with prejudgment (in which the apparent distinction between the two concepts was explained by reference to a person who may be a teetotaller but nonetheless remains capable of determining, say, liquor licence applications).

True it is, Commissioner Heydon rightly suggests that it cannot be a correct result if those who hide their political views are more likely to be biased, whereas those who are open and honest would be disqualified (at [77]). Further, given that voting is compulsory in Australia, “[i]f it was enough to disqualify a person from a role because the fair-minded observer might conclude that the person held political views, there would be no-one who could occupy the role” (at [76]).

But, respectfully, might this not miss the point?

Ethical principles governing the Bench and the Bar

There is a reason why Bar Ethics Rules prohibit barristers from accepting briefs in certain circumstances. The list is extensive but comes down to a common theme: avoid conflicts of interest, or any situation that might compromise the barrister’s independence or make it difficult for the barrister to maintain professional independence.

Most members of the judiciary are not only former barristers, but in any event, they typically observe a range of social niceties when a case is on foot. This is to avoid compromising any impression of professional independence. For instance, judges will typically avoid socialising with Counsel appearing before them during a case and whilst judgment is pending.

Applying these principles, the Trying Hard to Be Fair Minded Lay Observer might wonder why a Royal Commissioner presiding over a Royal Commission into Trade Union Governance and Corruption would consider it appropriate to speak at a function of a Liberal ‘character’ at all whilst the Commission was on foot. Whether or not the occasion was a fund-raiser may not be the issue.

The answer might simply be that the Commissioner did not himself recognize the risk.

Commissioner Heydon’s refusal to disqualify himself does not surprise. He was required to determine his own future, viewed through the eyes of a Fair Minded Lay Observer who from the decision appeared to be a literally minded, somewhat bookish and possibly didactic individual. In other words, through the eyes of a person who may look like himself.

Curiously, the Commissioner’s method of reasoning and worldview, revealed by the decision, appears to be of such a precise and literal nature that matters of impression and politics might well not influence his decision making approach. In other words, could it be the case that the decision has itself cured the perception problem?