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

Research output: Contribution to journalArticlepeer-review

7 Citations (Web of Science)

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.
Original languageEnglish
Pages (from-to)928-956
Number of pages29
JournalMelbourne University Law Review
Volume41
Issue number2
Publication statusPublished - 2017

Fingerprint

Dive into the research topics of 'The evolution of bias: spectrums, species and the weary lay observer'. Together they form a unique fingerprint.

Cite this