Staff Seminar: Judicial Policy, Public Perception and the Science of Bias - the Case for a New Approach to the Law of Apprehended Bias

The right to an impartial and independent tribunal is fundamental to the administration of justice and public confidence in it. However the test for apprehended bias is not informed by psychological research on cognitive biases, and while courts purport to give effect to the views of a fair-minded and informed member of the public on the risk of bias, little attention has been given to what the public thinks in reality. Using doctrinal analysis and drawing on psychological literature, the paper argues that the law must be re-examined with a view to closing the gap between the case law on which factors give rise to a reasonable risk of bias, public attitudes, and psychological research on decision-making. Dr Higgins will present preliminary results of a pilot survey examining public attitudes to scenarios in which judges have been disqualified, or called on to disqualify themselves, including those presented in some of the leading cases on apprehended bias.

SPEAKER

Associate Professor Andrew Higgins

Andrew is an Associate Professor in Civil Procedure at the Law Faculty and a Fellow in Law at Mansfield College. He is currently General Editor of Civil Justice Quarterly.

Andrew completed a BA/LLB (hons) at the University of Melbourne in 2001 and the BCL in 2005. He completed a Dphil at Oxford on legal professional privilege in 2011, and published a book on ‘Legal Professional Privilege for Corporations: A Guide to Four Major Common Law Jurisdictions’ with Oxford University Press in 2014. He has been a visiting scholar with NYU's Hauser Global Law School Program and has taught on the Melbourne Law Masters at Melbourne Law School.

Andrew is a (part time) practising barrister at the Victorian Bar, and previously worked as a lawyer at the Australian law firm Slater & Gordon. His main area of practice is mass tort litigation and has worked on asbestos, thalidomide and tobacco litigation amongst others.