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Therefore, the present (Theatre of) challenge to the impartiality of a Royal Commission Judge is of core interest here.
Apprehended bias
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” : Johnson v Johnson(2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied inMichael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857[2006] NSWCA 71 and Barakat v Goritsas (No 2) [2012] NSWCA 36.
Tony Jones speaks with Nicholas Cowdery about the future of Royal Commissioner Dyson Heydon.
Australian Broadcasting Corporation
Broadcast: 19/08/2015
TONY JONES, PRESENTER: Nicholas Cowdery was the Director of Public Prosecutions in New South Wales between 1994 and 2011. He's now an adjunct professor of Law at Sydney University's Institute of Criminology and he joins us now.
Thanks for being here.
NICHOLAS COWDERY, FMR DIR. OF PUBLIC PROSECUTIONS: Evening, Tony.
TONY JONES: Now on Friday, lawyers for the ACTU will proceed will an application that Dyson Heydon should disqualify himself from the Royal commission. How strong do you believe are the arguments they're going to put forward?
NICHOLAS COWDERY: Well I think they'll be coming with the strongest arguments that they can identify and there will be probably equally strong arguments on the other side of the contest. I don't have a concluded view about what should happen and any view that I did have would be irrelevant. The view that is important on Friday is the view that the commissioner forms having informed himself of all the facts that are relevant and having heard all the arguments on both sides.
TONY JONES: Now, non-lawyers might find this a little bit bizarre, that the commissioner has to inform himself of the facts about himself, effectively about his own state of mind and what he knew at the time. Can he actually give an unbiased opinion on himself?
NICHOLAS COWDERY: I think yes, and I say that because you have to understand the nature of legal training, the nature of the legal mind after many long years of practice and the application of the law in that sort of environment. This has been the process since the year dot. When some challenge is made to the impartiality of a judicial officer or somebody sitting in the position of a commissioner, it's that person who makes the decision as to whether or not a reasonable lay person would have a reasonable apprehension that that person, the subject of the inquiry, could not bring an impartial mind to the inquiry.
TONY JONES: Yes, and I mean, that's an interesting thing in itself. I mean, how would a former High Court judge, someone who's been in that cloistered environment for a long time really understand what a reasonable lay person, a person in the street, if you like, would actually think about whether he's biased or not biased?
NICHOLAS COWDERY: Well I think you might be falling into the trap of the idea of judges being divorced from reality and divorced from the community.
TONY JONES: It's a long-held view of certain people.
NICHOLAS COWDERY: Well it is of certain people, but you have to be realistic about these things. Judges see more of the slice of life in the community than ordinary individuals do in their daily lives. The community parades before them in the cases that come before them. In something like a Royal commission, there's a huge range of people who come forward with a huge range of experiences and input into life and so forth. And judges and commissioners, inquirers of one sort or another, I think are in a very good position to make the sorts of judgments that are required.
TONY JONES: In this case the test is apprehended bias. In other words, whether this person in the street would apprehend there to be bias. Is the bar higher or lower for a Royal commissioner than for a judge, for example?
NICHOLAS COWDERY: Well that's a very interesting point and I'm sure it will be part of the argument that will be aired on Friday before Commissioner Heydon. You have to keep in mind that there is a distinction between a judge and a commissioner of inquiry. A judge is in the position of making final decisions about the rights of individuals. A commissioner makes no decisions of that kind. What a commissioner does is to inquire into the availability of evidence, of facts that may be needed to be followed up by other processes, by other agencies following a Royal commission. And the Royal commissioner makes no binding decisions about the rights of individuals at all.
TONY JONES: So in fact the bar may be somewhat lower. Is that what you're saying?
NICHOLAS COWDERY: Well it depends on what you mean by the bar. I think there is at least an argument that the level of apprehended bias would have to be higher to justify the disqualification of a commissioner than of a judge. I'm not - I'm not an expert in this field of administrative law, but I'm certainly not aware of any decision which rules on that precise question.
TONY JONES: OK, let's have a look at some of the details. The Garfield Barwick Oration is clearly a Liberal Party event which Mr Heydon had agreed to do before he took on the Royal commission. As the commissioner says, he got an email when he was commissioner to remind him of the event, but he didn't open up the attachments, which refer to the fundraising element of it. I mean, is that ignorance enough to shield himself from the idea that he's been biased?
NICHOLAS COWDERY: Well I think it's the sort of thing that could quite reasonably happen in the life of a very busy individual and it's an important fact to keep in mind, apparently, that he also deferred or declined to take part in this event while he was still serving as the Royal commissioner. So he has certainly recognised that it may not have such a good look to it. But I - that's a long way from being a ground for disqualification and for resignation as a Royal commissioner.
TONY JONES: What about the notion that he appears to have understood it was a Liberal Party event - does that make any difference?
NICHOLAS COWDERY: Well this is a very politically-charged Royal commission and it has been since the beginning. And it has been open to people, and some people have taken this course, to criticise the person who accepted the appointment as a commissioner and to be in a position to criticise any finding that might be made by that person that would be adverse to the commentator's interests. And that process has been under way. The very mild rebuke, if it was a rebuke, of Mr Shorten by the commissioner to which you've referred, I think could be interpreted as really being some helpful advice to Mr Shorten, to assist him, not to criticise him. And apart from that, there has been no criticism of the way in which Commissioner Heydon has conducted his commission. Certainly, there have been some comments of a political nature every time something was going badly against the parties who made the comments, but that's what you expect in a public inquiry of this kind.
TONY JONES: Now, do you think - from what you were saying, there's already been a certain amount of damage to the commission itself. What does this whole affair do to the findings of the commission once they're released?
NICHOLAS COWDERY: Well I don't think the Garfield Barwick address adds greatly to the problems that are already there. I think the process itself has been under political attack right from the beginning and that attack could be expected to have continued. This particular event, I suppose, gives it a bit of a kick along, but in my own view - and I said I wouldn't express one - but I don't think subject to any other facts that might emerge or arguments that might emerge, that it kicks the ball into touch. I don't think it requires the commissioner to disqualify himself just on that. The problem is of course that any adverse findings against anybody remotely connected with a party other than the Liberal Party are going to be degraded and snubbed because of the events that have occurred.
TONY JONES: Nick Cowdery, we're out of time. We thank you very much for coming in to join us tonight.
NICHOLAS COWDERY: Thank you, Tony.
Three Laughers of TAR
present
Standing at the Bar, locus standi
Australia has a Common law understanding of locus standi or standing which is expressed in statutes such as the ADJR and common law decisions of the High Court of Australia especially the case Australian Conservation Foundation v Commonwealth (1980).[12]
The test for Standing is:
Is that interest too distant?[16][17]
Standing may apply to class of aggrieved people[22] where, essentially the closeness of the plaintiff to the subject matter is the test.[26]
Furthermore, a plaintiff must show that he or she has been specially affected in comparison with the public at large.[27]
Also, while there is no open standing per se, Prerogative writs like certiorari,[28] prohibition, Quo warranto[29] and habeas corpus[30]have a low burden in establishing standing.[18]
Australian Courts also recognise amicus curiae (friend of the court),.[23][31] and the various Attorneys Generals have a presumed standing in Administrative Law cases.[23]
Standing may apply to class of aggrieved people[22] where, essentially the closeness of the plaintiff to the subject matter is the test.[26]
Furthermore, a plaintiff must show that he or she has been specially affected in comparison with the public at large.[27]
Also, while there is no open standing per se, Prerogative writs like certiorari,[28] prohibition, Quo warranto[29] and habeas corpus[30]have a low burden in establishing standing.[18]
Australian Courts also recognise amicus curiae (friend of the court),.[23][31] and the various Attorneys Generals have a presumed standing in Administrative Law cases.[23]
click image to enlarge photo courtesy LM of TAR
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