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Law in Context

Abstract from Volume 18 No 1 (2001) Reshaping the Judiciary

Citizenship Theory and the Public Confidence Rationale for the Bias Rule

Margaret Allars is Professor, Faculty of Law, the University of Sydney.

The requirement that a judicial officer disqualify himself or herself on the basis of bias is a fundamental mechanism to achieve both judicial accountability and judicial independence. In this paper Allars explores the various grounds for disqualification through bias and in particular, the rationale for the `pecuniary interest' test and its relationship to the rationale for the apprehended bias rule. Significantly, under the pecuniary interest test, a judicial officer is required to stand down even though there is neither actual bias nor apprehended bias on the part of the judge. An argument based on democratic theory is developed regarding the possibility of reforming these rules, in light of the House of Lords decision in Ex parte Pinochet Ugarte (No 2) and relevant High court cases. The notion of public confidence in the judiciary provides a sound basis for reform.

(2001) 18(1) Law in Context 12
Keywords: Judicial independence; Judicial accountability

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