Confirming the Parting of Ways: The Law of Bias and the Automatic Disqualification Rule in England and Australia
![handle is hein.journals/sjls2001 and id is 394 raw text is: Singapore Journal of Legal Studies
[2001] 388- 409
CONFIRMING THE PARTING OF WAYS: THE LAW OF
BIAS AND THE AUTOMATIC DISQUALIFICATION RULE
IN ENGLAND AND AUSTRALIA
ANDREW FIELD
Despite the well stated differences between the real danger and the reasonable
apprehension of bias tests as employed by English and Australian courts respectively
in determining when a judge should be disqualified by reason of bias, the method of
implementation of the latter test over the last decade poses the question whether the
differences are more apparent than real. Rather, it is the recent rejection by the High
Court of Australia in Ebner v Official Trustee in Bankruptcy of the automatic
disqualification rule as set out by the House of Lords in R v Bow Street Metropolitan
Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) which more clearly marks
the differences between the jurisdictions in this area of the law.
I. INTRODUCTION
One of the strengths of the Australian legal system is that it places the
independence and impartiality of its judges at it apex. The truth of this
statement is evident in the public reactions whenever there is a suggestion
of prejudgment in topical and controversial disputes.' Accordingly, in the
* *BA(Hons) LLB LLM Monash, Acting Lecturer, Department of Business Law &
Taxation, Monash University; Barrister at Law (Vic).
A recent example of such a public reaction occurred in 1998 in Kartinyeri v
Commonwealth of Australia (1998) 195 CLR 337 at 347 when an application was made
that Callinan J disqualify himself from sitting with the other members of the court because
he had previously when in practice provided advice to the Commonwealth regarding the
legal status of the proposed Hindmarsh Island Bridge Bill which was the subject of the
dispute. The judgment in the application is reported in Kartinyeri v Commonwealth of
Australia (1998) 156 ALR 300. Suffice it to say, this dispute which had received a great
deal of coverage in the media prior to the court case, also promoted coverage and
discussion of the standing of Callinan J to hear the matter. For example, from 2 - 6
February 1998, The Australian newspaper carried a story on each day relating to Callinan
J. The reports ranged from the quoted views and contrary views of professors of various
Australian law schools as to whether His Honour should disqualify himself (Bernard Lane,
Race to Judgment, The Australian, 2 February 1998, 9), to reports of a broader reaction
in the community to His Honour's final decision (ie His decision was criticised by the
Opposition and many academics, who said Justice Callinan's links with the legislation
under challenge and the history of the bridge left a perception of bias; Bernard Lane,
Callinan rejects bias claim to sit on Hindmarsh case, The Australian, 6 February 1998,](ViewImageLocal?handle=hein.journals/sjls2001&div=23&collection=journals&method=preview&ext=.png&size=3)
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Confirming the Parting of Ways: The Law of Bias and the Automatic Disqualification Rule in England and Australia
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