25.
See also for example Panday v Virgil per Warner JA at paragraphs 38,
and 85 to 87.
38) The principle that has evolved, therefore, reflects a concern with
the need to maintain public confidence in the administration of
justice. The core issue is the manner in which the decision-maker’s
conduct will be viewed by fair-minded and informed members of the
public.
Who is the fair-minded and informed observer
85) In general terms, as the phrase implies, the individual is someone
who is not a party, but who recognises and understands all the
relevant circumstances and as a result is able to conclude whether
or not the public would perceive the possibility of bias, including
unconscious bias.
86) The English authorities support the formulation of Kirby J. in
Johnson v Johnson 74 AL JR 1380 which was decided in the High
Court of Australia, that the observer is “neither complacent nor is he
unduly sensitive or suspicious when he examines the facts”. It is
useful to cite the entire passage of Kirby J. at para 53.
“The attributes of a fictitious bystander to whom the courts defer
have therefore been variously stated. Such a person is not a lawyer.
Yet neither is he or she a person wholly uninformed and uninstructed
about the law in general or the issue to be decided. Being reasonable
and fair-minded the bystander before making a decision important
to the parties and to the community, would ordinarily be taken to
have sought to be informed on at least the most basic
considerations relevant to arriving at a conclusion founded on a fair
understanding of all the relevant circumstances…. Finally, a
reasonable member of the public is neither complacent nor unduly
sensitive or suspicious.”
87) I say with confidence that the traits identified by Kirby J. would
be present in the fair-minded and informed observer carrying out his
balancing task in this legal system.
26.
The circumstances to be analysed at the time are those known to the
fair minded observer at the time that the issue of bias is being considered. See
for example Warner JA in Panday v Virgil above at paragraph 59 (iv). The
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