Constitutional law notes
LSS Lecture
Topics for Essays…
Legislative…Privative Clauses…should they be legal, how does this accord with constitutional law..- recommended
Rule Against Bias
P will seek review of the decision on the grounds that DM failed to comply with natural justice (s.5(1)a, insofar as he was biased (how?)
Test: would a fair minded lay observer reasonably apprehend that dm might not bring an impartial mind to the decision(ebner)
A reasonable apprehension of bias
FMLO has all relevant knowledge of the circumstances (jia per Gleeson cj and gummow j)
Three questions to ask on top of facts
Nature of DM
The standard of impartiality required when making a decision is relative(jia)
Comparing a minister or a commonwealth official to a judge in court
Ministers of cth officials are held to a lower standard slower to apprehend bias, because they are politically accountable(jia mason J)
Court would be much swifter to apprehend bias on the part of a judge (jia,ebner)
If in exam dm is a minister/cth officer, analogise to JIa
Pecuniary Interest(ebner)
A financial interest of iself does not automativcally disqualify dm from making a decision(ebner)
Does this PI substantially affect the DM’s decision?
The practical effect of the financial interest of making the decision one way or anpther
Advisors to DM
Outline why the advisors are biased and why this is relevant
Reasonable apprehension of bias can lie in respect of advisors to the DM, depending on certain factors(hot holdings)
The dm had no percuniary interest in the decision himself;
The minister was unaware of the financial interests that the parties heldf in the decision
The parties held only peripheral roles in the dm process;(wasn’t right hand man,6th advisor or something)
No evidence was presented that the value of the share holding would have increased/decreased with the decision
Conclude: do we reasonably apprehend bias?
Exceptions to the rule against Bias
1. Waiver- applicant
Topics for Essays…
Legislative…Privative Clauses…should they be legal, how does this accord with constitutional law..- recommended
Rule Against Bias
P will seek review of the decision on the grounds that DM failed to comply with natural justice (s.5(1)a, insofar as he was biased (how?)
Test: would a fair minded lay observer reasonably apprehend that dm might not bring an impartial mind to the decision(ebner)
A reasonable apprehension of bias
FMLO has all relevant knowledge of the circumstances (jia per Gleeson cj and gummow j)
Three questions to ask on top of facts
Nature of DM
The standard of impartiality required when making a decision is relative(jia)
Comparing a minister or a commonwealth official to a judge in court
Ministers of cth officials are held to a lower standard slower to apprehend bias, because they are politically accountable(jia mason J)
Court would be much swifter to apprehend bias on the part of a judge (jia,ebner)
If in exam dm is a minister/cth officer, analogise to JIa
Pecuniary Interest(ebner)
A financial interest of iself does not automativcally disqualify dm from making a decision(ebner)
Does this PI substantially affect the DM’s decision?
The practical effect of the financial interest of making the decision one way or anpther
Advisors to DM
Outline why the advisors are biased and why this is relevant
Reasonable apprehension of bias can lie in respect of advisors to the DM, depending on certain factors(hot holdings)
The dm had no percuniary interest in the decision himself;
The minister was unaware of the financial interests that the parties heldf in the decision
The parties held only peripheral roles in the dm process;(wasn’t right hand man,6th advisor or something)
No evidence was presented that the value of the share holding would have increased/decreased with the decision
Conclude: do we reasonably apprehend bias?
Exceptions to the rule against Bias
1. Waiver- applicant