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Monday 24 August 2015

On fair-minded lay observers..

'Fair minded lay observers' seem to have popped into our milieu of late. What the heck are they?

Can we find one?

Is a parking cop fair minded when he books me while I am standing next to the yellow Maserati which has been parked for just 1 hour in a no-parking zone?  Or is he simply picking on me because of my pink hair and tattoos, or indeed my Maserati?

Ok perhaps an extreme example. Try this.

What would a fair-minded lay observer say about a Human Rights Commission president who postponed a review of 'children in detention' when the numbers were rising rapidly under a Labour Government, till after a change of government when the numbers were falling rapidly?

No? No that one? Ok lets try again.

What would a fair minded lay observer think of a Union lawyer arguing a Royal Commissioner recuse himself because "he is guilty of apprehended bias" after his Union has been exposed as corrupt with many of its members already facing criminal charges?

I guess you can see where I am going with this, but bear with me.

The argument over 'apprehended bias' by Dyson Heydon in his role as TURC commissioner has taken centre stage.

The term was new to me till recently. So I have had to do some quick Googling.  There are of course many references, all rather legalese.  Apprehended Bias is the criterion used to determine whether a judge has sufficient impartiality to rule on a matter.

The NSW judicial commission provides this definition; -

"The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias 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”Judicial Commission of New South Wales

And to further clarify; - 

" the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude." ( Source Reasonable apprehension of Bias )

With the TURC, the decision is up to Dyson Heydon (DH) and we will know his decision in due course.

I have already recorded my position vis-a-vis the justice of this attack but would like to add some points specifically addressing the Apprehended Bias attack. (4 reasons why Dyson Heydon should stay)

  • The claims of Apprehended Bias are disingenuous
  • The claimants have evident bias themselves
  • Some of the claimants arguments do not support Apprehended bias

The claims of Apprehended Bias are disingenuous. 

The Unions raising the claim do so not because they believe DH will be not be impartial. They use it as a convenient argument in order to ;
  • weaken the TURC by eliminating an effective commissioner
  • deflect attention from the corruption already exposed and prevent more being exposed
  • taint the work of the TURC and thereby mitigate the findings of the commission against them
  • minimise the political damage to both the Union movement and the ALP by their association with corrupt practices
  • generally obfuscate, throw enough mud so some will stick.

The claimants have evident bias themselves

The ACTU, the AWU and the CFMEU through their solicitors each made claims of apprehended bias against DH. How seriously should we gauge their claims of AB. Do they meet the criteria of being fair-minded lay observers?

Certainly not! The CFMEU has been implicated in wide-spread corrupt practices with many of its members likely to face criminal charges. So too the AWU with two ex Union organisers to face criminal charges, and exposure of suspect Union deals which disadvantage workers. The ACTU represents all the unions and therefore has an overarching self interest to minimise the political damage caused by the exposure of corrupt practices.

So none of the claimants are fair minded lay observers. They are clearly biased in their claims, so we should treat them with suspicion.

Some of the claimants arguments do not support Apprehended bias

I guess this last of my points is the most important. While we will generally accept that the Unions have a vested interest in discrediting the TURC and will use any argument that serves that purpose, are they arguing something they don't believe? That is a lot harder to prove. 

Indeed it is and I don't claim to have foolproof evidence but at least sufficient 'smoke' to suggest there is a 'fire'. 

Reproduced below is the reported testimony of Mr Newlinds the barrister for the ACTU at the TURC arguing the case for Apprehended Bias; - 

11.03am: Now, Mr Newlinds focuses on Justice Heydon’s reputation: “We know that you’re the Honourable Dyson Heydon. When I say we, I mean the lawyers in this room, and we know that you have particular skills as a lawyer and as a judge and for that matter as an academic.”
He goes on to make the interesting point that, while the “hypothetical bystander” may not know about Heydon’s “razor sharp mind” or “mind like a steel trap”, they would bear in mind Mr Heydon’s resume.
He says: “We know that you’re a man with a reputation for having a razor sharp mind, to use another cliche, a mind like a steel trap. I think my learned friend is correct in saying that the hypothetical bystander that this matter must be judged by, he or she doesn’t know that ... They do know that you were appointed to the High Court, that you were appointed to the COA of NSW, then to the HC of A and served for the best part of a decade, I think, and that the executive branch of government has seen you as a person appropriate to carry out this very important, difficult and fact intensive inquiry. (source The Australian )

Paraphrasing , Mr Newlinds argues that those in the legal fraternity respect DH 's ability to weigh arguments and come to impartial rulings, but that the lay observer does not know this and therefore may see him as being biased.

In other words, Mr Newlinds argues solicitors like himself accept that DH is impartial, but despite this DH is guilty of Apprehended bias as a lay observer would not have this insiders' knowledge.

However returning to the clarification of how to apply the 'apprehended bias' criterion; -

" the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information." ( Source Reasonable apprehension of Bias )
So the lay observer must also acquaint themselves with those in the industry and therefore would come to the same conclusion as Mr Newlinds has, that DH will indeed be impartial.

Mr Newlinds has, perhaps inadvertently, presented a cogent argument for dismissing the Apprehended Bias claim against DH.

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