(4.2) JR OF LAW MAKING - PROCEDURAL GROUNDS OF REVIEW (Bias Rule) Flashcards
(37 cards)
Freedom of bias is a cornerstone of procedural fairness bc it ensures
the maintenance of public confidence in the judicial review system.
Today, courts suggest that there’s a single test for bias in public decision making which is
Might a reasonable observer apprehend that the decision maker might not resolve the matter with a fair and unprejudiced mind (CNY17; Laws; Ebner)
Apprehended bias will be established where
a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision (Ebner).
Whilst the question of apprehended bias is one of ‘possibility, not probability’ (Ebner), it is insufficient that
the observer experiences a ‘vague sense of unease or disquiet’ (Jia Legeng).
Different decision-maker levels (eg, tribunals, ministers and judges) have differnet levels of bias requirements bc
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)
2 steps to a finding of apprehended bias
(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
Does a finding of apprehended bias rest on the actual decision made?
No (CNY17)
Finding of apprehended bias is a
jurisdictional error + MATERIALITY (not ADJR) (CNY17)
Examples of bias
(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
Pecuniary interests as a form of bias - per Ebner (2000), there is no
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
Bias for bureaucrats/department officials (when advising DM but not the final DM), bias will only occur
if the person with a financial interest participated in a significant manner in the decision-making process, rather than some ‘peripheral’ involvement (Hot Holdings)
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?
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)
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?
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’)
Investigations as prejudgement - a preliminary investigation must not
be taken to the point where it results in positive findings on material issues: (Laws)
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?
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
3 exceptions to bias rule?
(1) Waiver
(2) Statutory exclusion
(3) Necessity
Exception to bias rule: Waiver
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
Exception to bias rule: Statutory exclusion
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)
Exception to bias rule: Necessity
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)
Facts in CNY17 (2019) HCA
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
Outcome in CNY17 (2019) HCA
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.
Facts in Ebner (2000)
- 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)
Outcome in Ebner (2000)
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.
Facts in Hot Holdings v Creasey (2002)
- 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?
