The evolution of bias: spectrums, species and the weary lay observer

Article


Young, Simon. 2017. "The evolution of bias: spectrums, species and the weary lay observer." Melbourne University Law Review. 41 (2), pp. 928-956.
Article Title

The evolution of bias: spectrums, species and the weary lay observer

ERA Journal ID33616
Article CategoryArticle
Authors
AuthorYoung, Simon
Journal TitleMelbourne University Law Review
Journal Citation41 (2), pp. 928-956
Number of Pages28
Year2017
Place of PublicationAustralia
ISSN0025-8938
Web Address (URL)http://www6.austlii.edu.au/cgi-bin/viewdoc/au/journals/MULR//2017/42.html
Abstract

This article explores how Australian courts have grappled with the challenges of changing context and a frenetic case load in their application of the rule against bias. In their efforts to keep this sacrosanct rule relevant and coherent they have employed three key tools of ‘calibration’: the ‘fair-minded lay observer’, the spectrum of standards, and a (re)emerging technique of sub-categorisation or ‘speciation’. The lay observer has wearied, becoming awkwardly indistinct in important contexts; the spectrum approach has enjoyed an expanding importance but now appears to have reached its high-water mark; however, the ‘speciation’ approach has shown its precision and is perhaps the key to the next generation of cases. This article re-maps the bias rule in Australia by reference to these three tools of calibration, thereby placing the accumulating critique of the ‘lay observer’ test into clearer context. It also offers some predictions on the law’s future trajectory.

Keywordsadministrative law, natural justice, procedural fairness, bias, legal evolution
Contains Sensitive ContentDoes not contain sensitive content
ANZSRC Field of Research 2020480502. Civil procedure
480701. Administrative law
480499. Law in context not elsewhere classified
Public Notes

File reproduced in accordance with the copyright policy of the publisher/author.

Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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