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

Young, Simon (2017) The evolution of bias: spectrums, species and the weary lay observer. Melbourne University Law Review, 41 (2 (advance)). pp. 1-28. ISSN 0025-8938

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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.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Advance publication on MULR website. Advance Version displayed with the permission of the Publisher.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 02 Nov 2017 02:36
Last Modified: 02 May 2018 23:29
Uncontrolled Keywords: administrative law, natural justice, procedural fairness, bias, legal evolution
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180104 Civil Law and Procedure
18 Law and Legal Studies > 1801 Law > 180103 Administrative Law
18 Law and Legal Studies > 1801 Law > 180119 Law and Society
URI: http://eprints.usq.edu.au/id/eprint/33274

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