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
25 March 2022

Sections 46(1)(d) and 105(1)(d) respectively provide that the National Assembly and Provincial Legislatures consist of women and men elected in terms of an electoral system that “results, in general, in proportional representation”.  The respondents argued that this refers to an exclusive party proportional representation system.  OUTA argued, correctly in my view, that proportionality does not equal exclusive party proportional representation.  The idea of proportional representation is not inconsonant with independent candidate representation.  These sections make no reference to party proportional representation, let alone exclusive party proportional representation.  The focus of the sections is on the “result”: whoever the participants may be, the system must be one that “results, in general, in proportional representation”.

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