Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
11 August 2011

The defence argues that it would breach Articles 2 and 3 of the European Convention on Human Rights to order extradition of this defendant to South Africa. It would breach Article 2 if there is known to be a real risk to Mr Dewani of loss of life in the receiving 45 country. To establish Article 3 the defence must show that there are substantial grounds for believing that there is a real risk that the requested person will be subjected to torture or to inhuman or degrading treatment or punishment in the requesting state. In each case it is necessary to show there where the risk is from non-state agents, that there is in addition a lack of reasonable protection in the receiving country. It is common ground that an assessment must be made according to the specific circumstances as they would apply to Mr Dewani rather than generalized concerns. A high threshold is required to establish Article 3. The ill-treatment must necessarily be serious such that it is an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment. – Judge Howard Riddle in judgment in the Shrien Dewani extradition case

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