(4.2) JR OF LAW MAKING - PROCEDURAL GROUNDS OF REVIEW (Bias Rule)

Question 1

Freedom of bias is a cornerstone of procedural fairness bc it ensures

Answer 1

the maintenance of public confidence in the judicial review system.

Question 2

Today, courts suggest that there’s a single test for bias in public decision making which is

Answer 2

Might a reasonable observer apprehend that the decision maker might not resolve the matter with a fair and unprejudiced mind (CNY17; Laws; Ebner)

Question 3

Apprehended bias will be established where

Answer 3

a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision (Ebner).

Question 4

Whilst the question of apprehended bias is one of ‘possibility, not probability’ (Ebner), it is insufficient that

Answer 4

the observer experiences a ‘vague sense of unease or disquiet’ (Jia Legeng).

Question 5

Different decision-maker levels (eg, tribunals, ministers and judges) have differnet levels of bias requirements bc

Answer 5

tribunals - rule of necessity overcomes bias
Ministers- more latitude for interest in outcome bc of gov policy etc (Jia)
Judges - strict application of rule bc judges independent and have tenure (Ebner)

Question 6

2 steps to a finding of apprehended bias

Answer 6

(1) Identify the bias
(2) Articular the logical connection btw the identified matter and the feared deviation from the course of deciding case on legal and factual merits

Question 7

Does a finding of apprehended bias rest on the actual decision made?

Answer 7

No (CNY17)

Question 8

Finding of apprehended bias is a

Answer 8

jurisdictional error + MATERIALITY (not ADJR) (CNY17)

Question 9

Examples of bias

Answer 9

(a) conduct
(b) disqualification by association
(c) pecuniary interest
(d) bias of departmental officers involved in DM process
(e) prejudgement
(f) extraneous info
(i) committee decisions

Question 10

Pecuniary interests as a form of bias - per Ebner (2000), there is no

Answer 10

separate and free-standing rule of automatic disqualification for direct pecuniary or proprietary interest

instead disqualification results in absence of evidence to the contrary a fair-minded lay observer would reasonably apprehend the DM lacked an impartial mind

Question 11

Bias for bureaucrats/department officials (when advising DM but not the final DM), bias will only occur

Answer 11

if the person with a financial interest participated in a significant manner in the decision-making process, rather than some ‘peripheral’ involvement (Hot Holdings)

Question 12

Prejudgment as form of bias: noting that Minister/political DM is entitled to express views and statements of policy, what must they do to avoid bias?

Answer 12

must merely give genuine consideration to issues with a mind open to persuasion (Jia Legeng)

is prejudgment where DM is closed to evidence and argument (Ministers esp are allowed to form strong views and express them) (Jia Legeng)

Question 13

Prejudgement with judges/quasi-judicial DMs –> if judges apply prejudgement based on experiences in prior cases does this give rise to reasonable apprehension of bias?

Answer 13

YES (eg opinions of expert witness credibility to present case) gives rise to a reasonable apprehension (Vakauta)

(this is distinct from where a judge has preconceived views about the credit/untrustworthiness of a non-expert witness ‘whose evidence is of significance on a question of fact’)

Question 14

Investigations as prejudgement - a preliminary investigation must not

Answer 14

be taken to the point where it results in positive findings on material issues: (Laws)

Question 15

Committee decisions - If reasonable apprehension re one member of committee (eg due to conflict of roles, emotional investment – such as if one member a moving party akin to an accuser or prosecutor) is the whole committee biased?

Answer 15

YES (Isbester)

council officer involved in decision to prosecute dog attack in Magistrate’s court – council officer also member in 3 person panel to put down dog –> interest + logical connection as complainant

Question 16

3 exceptions to bias rule?

Answer 16

(1) Waiver
(2) Statutory exclusion
(3) Necessity

Question 17

Exception to bias rule: Waiver

Answer 17

where party with legal representation, who knows of facts giving rise to reasonable apprehension fails to raise the bias issue at the earliest opportunity, the party waives

Question 18

Exception to bias rule: Statutory exclusion

Answer 18

legislature can exclude the operation of the bias rule where a decision maker would otherwise be disabled from performing its statutory functions (Laws v ABT)

Question 19

Exception to bias rule: Necessity

Answer 19

if a decision involves the reasonable apprehension of bias, it will nevertheless stand if the decision cannot be made without the participation of the biased decision-maker (Rauber)

Question 20

Facts in CNY17 (2019) HCA

Answer 20

about reasonable apprehension of bias from knowledge of extraneous material

• appellant was an asylum seeker who came to Australia - whilst on Xmas Island involved in property damage + charged re protests there that were pending when application made
• Immigration refused his application

Question 21

Outcome in CNY17 (2019) HCA

Answer 21

was breach of bias rule, lay observer would’ve apprehended lack of impartiality,

adverse info was hidden from applicant, a fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account.

Question 22

Facts in Ebner (2000)

Answer 22

• about judges in 2 dif cases, where issue was whether judges were disqualified for holding shares in ANZ (in 1 case judge was beneficiary of trust which held the shares and bank had a interest in the proceedings but wasn’t a party)

(in other judge held shares personally and bank was a party)

Question 23

Outcome in Ebner (2000)

Answer 23

Here no bias

The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.

Question 24

Facts in Hot Holdings v Creasey (2002)

Answer 24

• 2 department officials involved in drafting minute containing the Departmental advice used in DM process to grant mining licence:
  a. one’s son had shares in company +
  b. one had shares in a company with an option to purchase an interest in exploration licence if granted

Was there bias?

Question 25

Outcome in Hot Holdings v Creasey (2002)

Answer 25

Was concluded that the sons’ interests made no significant contribution to minister’s decision – minister didn’t know of these interests and was not influenced by desire to promote these interests

• A fair-minded member of the public, informed of all the facts set out above, would know that the Minister was personally impartial.

Question 26

Facts in Jia Legeng (2001) - prejudgement

Answer 26

• minister cancelling visa on character grounds – crim conviction (sexual assault) - minister acting on public interest power
  argued that Minister prejudged the public’s interest in cancelling visa on character grounds
• argued that the Minister, through public comments on AAT’s assessment of Jia’s good character and devising a response to by-pass further AAT review, showed preconceived views of Jia’s character.

Question 27

Outcome in Jia Legeng (2001) - prejudgement

Answer 27

rejected appeal!

Minister can be drawn into public debate on matters in respect of which he may exercise public interest powers, and is not expected to conform to standards of detachment which apply the judges and jurors.

Question 28

Facts in Vakauta v Kelly (1989) - prejudgement

Answer 28

• TJ in personal injury case made critical statements about evidence given by an insurance company’s medical witnesses in previous cases

Question 29

Outcome in Vakauta v Kelly (1989) - prejudgement

Answer 29

could bring apprehended bias claim

whilst judges inevitably have preconceived views about expertise/reliability of professional opinions of an expert medical witness, here judge’s comments fell on wrong side of the line of what was permissible in terms of what a lay observer would think –> would see these comments as derogatory)

Question 30

What does Jia Legeng show re prejudgement?

Answer 30

shows the flexible application of the reasonable apprehension of bias principle – an eg of the HCA accommodating the particular role of the DM in this case a minister, to the application of the bias principle

Question 31

What does Jia Legeng show re prejudgement?

Answer 31

shows the flexible application of the reasonable apprehension of bias principle – an eg of the HCA accommodating the particular role of the DM in this case a minister, to the application of the bias principle

Question 32

CNY17 (2019) HCA and extraneous info (re appellants involvement in property damage on xmas island and investigation into protest pending at time of visa application)

Answer 32

here material was prejudicial to appellant!

Whilst this material was irrelevant to Q before the DM that it was mandated to consider, knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”.

This was the case here, and had capacity to influence consciously or subconsciously the DM from deciding case on its merits –> can’t just cure risk by popping info to the side!!

Question 33

CNY17 (2019) HCA and extraneous info (re appellants involvement in property damage on xmas island and investigation into protest pending at time of visa application)

Answer 33

here material was prejudicial to appellant!

Whilst this material was irrelevant to Q before the DM that it was mandated to consider, knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”.

This was the case here, and had capacity to influence consciously or subconsciously the DM from deciding case on its merits –> can’t just cure risk by popping info to the side!!

Question 34

In Isbester v Knox City Council (2015) DM by multi-member committees, what was the nature of the personal interest

Answer 34

• A “personal interest” in this context is not the kind of interest by which a person will receive some material or other benefit
• whilst no indication about how Ms Hughs approached the matter other than as required, natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed.

Question 35

Per Rauber (1983), if there’s an instance where there’s only 1 tribunal to act wrt matter, is AB permitted if unavoidable?

Answer 35

Yes

the common law allows an exception to the disqualifying effect of bias … where the exception is necessary to allow the functioning of the sole tribunal with power to act’

Question 36

Facts in Laws v ABT (1990)

Answer 36

Laws (radio broadcaster) claimed that all members of Australian Broadcasting Tribunal were disqualified from conducting an inquiry into whether certain comments made by Laws had breached radio programme standards.

Laws argued that the Tribunal’s pleadings in its defence to defamation proceedings by Laws gave rise to reasonable apprehension of bias on the part of all Tribunal members

Question 37

Facts in Laws v ABT (1990)

Answer 37

Laws (radio broadcaster) claimed that all members of Australian Broadcasting Tribunal were disqualified from conducting an inquiry into whether certain comments made by Laws had breached radio programme standards.

Laws argued that the Tribunal’s pleadings in its defence to defamation proceedings by Laws gave rise to reasonable apprehension of bias on the part of all Tribunal members