Search
This area does not yet contain any content.
Justinian News

Balkan intrigues ... Old coppers stagger into the Croatian Six inquiry ... 15-year jail terms in 1980 for alleged terrorism ... Miscarriage of justice under review ... Verballing ... Loading-up ... Old fashioned detective "work" ... Evidence so far ... Hamish McDonald reports ... Read more >> 

Politics Media Law Society


Splitting heirs ... How to get rid of the Royals – a Republican tours Orstraya … Underneath their robes – sexual harassment on the bench … Credit card fees – so tricky that only economists know what to do … Muted response to Drumgold vindication … Vale Percy Allan ... Read on ... 

Free Newsletter
Justinian Columnists

Blue sky litigation ... Another costly Lehrmann decision ... One more spin on the never-never ... Arguable appeal discovered in the bowels of the Gazette of Law & Journalism ... Odious litigants ... Could Lee J have got it wrong on the meaning of rape? ... Calpurnia reports from the Defamatorium ... Read more >> 

Blow the whistle

 

News snips ...


This area does not yet contain any content.
Justinian's Bloggers

Online incitements ... Riots in English cities fed by online misinformation about refugees ... Policing and prosecution policies ... Fast and furious processing of offenders ... Online Safety Act grapples with new challenges ... Increased policing of speech on tech platforms ... Hugh Vuillier reports from London ... Read more >> 

"Mistakes of law or fact are a professional inevitability for judges, tribunal members and administrative decision makers."  

Paul Brereton, Commissioner of the National Corruption Concealment Commission, downplaying the Inspector's finding of bias and procedural unfairness with his conflicted involvement in the decision making about Robodebt referrals ... Read more flatulence ... 


Justinian Featurettes

Vale Percy Allan AM ... Obit for friend and fellow-traveller ... Prolific writer on economics and politics ... Public finance guru ... Technocrat with humanity and broad interests ... Theatre ... Animals ... Art ... Read more ... 


Justinian's archive

A triumph for Victorian morality ... Ashton v Pratt ... In the sack with Dick Pratt ... Meretricious sexual services renders contract void on public policy grounds ... Justice Paul Brereton applies curious moral standard ... A whiff of hypocrisy ... Doubtful finding ... Artemus Jones reporting ... From Justinian's Archive, January 24, 2012 ... Who knew the NACC commissioner had strong views on the sanctity of marriage ... Read more ... 


 

 

« Thought police | Main | Getting them off »
Wednesday
Sep272023

Lord Archer - ducking and weaving

Defrocked barrister faced "iciness" at the ADT ... Double helpings of bias ... Tribunal can't help making adverse decisions about the former brief ... Fair minded citizens on the Emu Plains omnibus ... From Justinian's Archive, November 11, 2004 

Archer: multiple bankruptcies ... bias everywhereStephen Archer, the flushed-faced tax recalcitrant and multiple bankrupt, formerly of the Sydney Bar 'n Grill, is convinced the Administrative Decisions Tribunal has it in for him. 

Not only is the three person ADT panel hearing an application by the Grill to strike him from the roll biased against him, but so too is the entire ADT. 

Fair minded lay observers, Archer told the tribunal, could only concluded that since his score at the ADT was 40-love, it is a completely compromised outfit. 

Its latest decision, in which the three members dismissed his plea to disqualify themselves on grounds of actual and apprehended bias, must confirm his darkest suspicions.

The tribunal, composed of Professor Michael Chesterman, Sharron Norton SC and non-judicial member C. Bennett, not only had to locate the "fair minded lay person" but, in the process, try not to look too ridiculous in trying to "distance" themselves from their own decisions "in a way that is far from straightforward". 

As the panel solemnly put it: "Doing the best that we can, our conclusion … is that the respondent (Lord Archer) has failed to 'firmly establish' apprehended bias." 

Chesty, Sharron and Bennett were swayed by a number of considerations including: simply because they decided against His Lordship in three out of three cases (now four out of four) that didn't mean there could be an apprehension of bias; the reserved judgments they delivered summarised the arguments of both sides; they stated and applied the law to the facts "as correctly as we were capable of doing"; and because no specific details were given about the allegation of "iciness" towards Archer no finding could be made in relation to "enmity". 

One of the Archer's additional points was that Sharron Norton was actually biased against him because she is a card-carrying member of the Bar 'n Grill. 

Importantly, she did not disclose that fact at the commencement of the hearing. 

Judicial Member Norton had no trouble dismissing such extravagance in a separate judgment. She pointed out that the authorities said that members of governing councils should be disqualified from sitting as members of disciplinary tribunals, "by interest or association or both". 

Since she was not, and never had been, a member of the council or of a conduct committee of the Grill, there was no need to disqualify herself. So there. 

Also, she was never asked to disclose the fact that she was a member of the bar association. In any event this "could not have come as a surprise to the respondent". 

The Bar 'n Grill's web site says that on April 21 last the ADT handed down a decision on an application from the rouge-chopped tax toad for the separate determination of a preliminary question – that the matters set out in the information filed by the Grill were incapable of constituting professional misconduct. 

The tribunal dismissed the strike out application and Archer has lodged "a holding appeal". 

This is all part of a fiercely contested struggle to get Archer struck off the jam roll. 

The other two tribunal decisions subject to challenge were a decision to reject his application to strike out 16 summonses to produce documents on the grounds of abuse of process and oppression, plus a decision in March this year to allow the bar to file its application out of time because it had advanced a "reasonable explanation" for the delay. 

Lord Archer alleged that they had reached all three decisions without reason or explanation, and that any comprehensible reasoning was so absent that a finding of actual and apprehended bias was "inescapable". There was also the question of "a degree of iciness towards him". 

The tribunal sought to get to grips with the extent of the legal knowledge or analytical skill required by the "fair minded lay person" in catching a whiff of apprehended bias. 

To this end it was guided by Kirby P in S&M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd, as approved by Toohey J in Vakauta v Kelly, that one should not attribute to the fair-minded lay observer a "sophistication and knowledge about the law and its ways which I believe to be quite atypical of the general community". 

The metaphor proposed by Kirbs as appropriate was of a "robust discussion between reasonable ordinary citizens on the Emu Plains omnibus". 

In concluding that the allegation of actual bias was unsubstantiated, the tribunal judged that any defects that existed in their previous decisions still could not support the contention that they had reached a predetermination against Lord Archer. 

Seems as though his Lordship has turned forced retirement into an absolute hoot. 

 

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Editor Permission Required
You must have editing permission for this entry in order to post comments.