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The bias rule

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This article is a topic within the subject Administrative Law.

Contents
1 Required Reading
2 The rule against bias
3 Categories of bias
4 Test for prejudgement
5 Exceptions to the bias rule
6 Case law
7 End
8 References

Required Reading
R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [10.5.1-25C]].

The rule against bias

[1]The principle against bias is that decision-making must be and be seen to be impartial.

The rule against bias applies universally to all decision-making, although it applies differently to courts, tribunals,
administrators and ministers.
It is theoretically possible for parliament to exclude the operation of the rule against bias. The furthest parliament has
gone was to provide that judicial review was only available for actual, rather than apprehended, bias as part of a scheme for
limited judicial review of migration decision.
Underlying rationale: “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”[2]
In order not to disadvantage the claimant the decision-maker must be disinterested in the matter at hand.
Absence of bias maintains the standard of probity and fair play which promotes confidence in the institution to
which the decision-maker belongs.
The need for public confidence is reflected in the test for the most commonly encountered forms of bias (apprehended
bias): whether the public perception or outward appearance suggests a lack of impartiality in the decision-making process.
The principle is rigorously applied to tribunal members and judicial officers but the same degree of impartiality cannot be
expected of ministers and administrators, whose decision-making is tied to government policy.
The rule cannot be applied in a way that would inhibit a minister from applying government policy, however, it is
equally unacceptable for a decision-maker to rely solely on government policy closing their mind to the individual
case.
A countervailing imperative on a decision-maker (particularly a judicial officer) is the duty to exercise a decision-making
function and the need to be slow to accept a call for disqualification to avoid abdicating duty or encouraging procedural
abuse and “judge-shopping” (Kirby v Centro Properties Ltd (No 2)).[3]

Consequences of a finding of bias:

A person who may be biased in relation to a matter may not participate in decision-making concerning that matter.
Claims are therefore frequently brought to prevent a person from participating in a decision.
A decision made by a person who was biased is invalid.
Generally, the entire proceeding is tainted by the invalidity (Tahmindjis v Brown).[4]

Categories of bias
[5]Since Ebner, the categories of bias have been collapsed into two (deemed bias was subsumed into the apprehended bias
classification).

Actual bias: when the decision-maker’s mind is so closed to persuasion that argument against that view is ineffectual (Jia).
Rarely encountered because of the difficulty of proving it, which is compounded when the decision is made in
conjunction with others.

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Apprehended bias: where a “fair-minded lay observer might reasonably apprehend that the judge might not bring an
impartial mind to the resolution of the question the judge is required to decide” (Ebner).
Bias is to be firmly established and is not to be found lightly.
Committees or tribunals with members chosen for their specialist knowledge or experience are not biased if they rely on
that general knowledge and experience in reaching a conclusion.
Institutional bias may arise, for example, when all the members of an agency or a tribunal are perceived to adhere to a
particular viewpoint.

In Webb v R,[6] Deane J recognised certain well-established categories of bias:

1. Disqualification by interest.
2. Disqualification by conduct.
3. Disqualification by association.
4. Disqualification by erroneous information.

Examples which come within these categories:

Where a decision-maker, adjudicating a dispute between two or more parties, communicates privately with one party, even
though there may be no improper motive for doing so.
When a decision-maker is both prosecutor and judge, such as a steward sitting on a disciplinary committee or, for example,
where a decision-maker has acted as fact-finder, prosecutor and judge.
If the decision-maker appears to have views which suggest they may prejudge the outcome.
If the decision-maker rehears the same matter on appeal.
If the decision-maker has made interlocutory decisions in the same proceedings.
Where a decision-maker exhibits towards a party or a witness in a hearing wither strong animosity or hostility, or partiality
or favouritism.
Where there is a close family, personal or professional relationship between the decision-maker and a party.
Where a decision-maker has a financial interest in one of the parties.

Test for prejudgement

[7]Whether bias is present is frequently a question of degree because the test will differ depending on the circumstances of the case due
to the different expectations an observer would have of the level of impartiality required by the decision-maker.

Prejudgement or present if, in all the circumstances, there could be a reasonable apprehension that the judge or decision-
maker might not bring an impartial or unprejudiced mind to the issues (Ebner).
The test is objective.
The question is of possibility (real and not remote), not probability.
Bias does not have to be in favour of or against either party. It must simply appear that the decision-maker lack
impartiality.
Two elements must be established:
1. Identification of the behaviour which might lead to a decision on other than its ‘legal and factual merits’.
2. Demonstration of how this behaviour is connected as a matter of logic with a biased outcome.
A fair-minded observer is someone with knowledge of the particular facts, not just broad general knowledge (Webb v R).
The degree of knowledge must be sufficient to make a worthwhile judgement.
Prejudgment must mean that there is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a
conclusion already formed that the conclusion will not be altered despite evidence or arguments.
Prejudgement is not the same as a conflict of interest.
An expression of tentative views about an issue is not prejudgement, although it should be capable of being seen as
tentative.
Each case must be decided on its own facts however, even if the decision-maker had decided an issue of fact or law in
particular way and was likely to decide it in the same way if it arose again, this does not indicate bias, and more than
statistical probability is required.

Exceptions to the bias rule

[8]Regardless of whether bias has been established, some circumstances may prevent invalidity: necessity, waiver, consent, statutory
modification and possibly special circumstances.

Claims of bias of necessity or consent commonly arise in domestic bodies or tribunals with limited membership, for
example, builders’ registration boards, rugby football associations and law societies.
Consent in such circumstances will not save decisions where there is a real possibility that bias is present or where
bias can be avoided.
The necessity exemption commonly arises in bodies with a limited number of members, for example, the same judge
hearing a case on remittal in a small jurisdiction.
To forestall a challenge on the grounds of bias, it is common for decision-makers to declare any interest which might lead
to a perception of bias at the commencement of proceedings.

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If there is no objection, any bias due to that interest is presumptively waived. Counsel has the obligation to object
and failure to do so, even if due to a misunderstanding, may amount to waiver.
Waiver can occur during a hearing if no party objects, at the time, to a potentially biased remark by the decision-maker.
The claim of bias must be raised at the earliest possible opportunity, otherwise it could be argued to have been waived.
Although this is unlikely to be a successful argument in a serious case of bias.

Case law
[9]

Ebner[10]

Facts: Two appeals were decided jointely in this case. In the Ebner appeal, the trial judge had disclosed that he was a beneficiary
under a family trust which held 800 shares in a bank that was a creditor in bankruptcy proceedings being heard by him. A relative
of the bankrupt objected to the judge hearing the case. The High Court held per curiam that the trial judge was not disqualified
under the apprehended bias principle.

In the Clenae appeal, the trial judge inherited 2400 shares in the ANZ bank, after an 18-day trial but before the judgement was
delivered, in an action brought by the bank against a borrower. During the same period a principle witness died. The judge did
not disclose the inheritance. He ruled in favour of the bank and the borrower challenged that ruling. The High Court (Kirby J
dissenting) held that the trial judge was not disqualified under the apprehended bias principle.

Issue: Disclosure of financial interest; necessity.

Held: The court noted the historical roots of the principle, that it applies differently to different decision-makers and that it
cannot be invoked to frustrate the ability of a body to make decisions. It set out the two steps of the apprehension of bias
principle: “[I]t requires the identification of what it is said might lead a judge (or juror) to decide a case on other than its legal and
factual merits... There must be an articulation of the logical connection between the matter and the feared deviation from the
course of deciding the case on its merits.”
“The question is one of possibility (real not remote), not probability.”
“Its application is as diverse as human frailty.”
There is no separate rule that disqualifies a person from hearing a matter where they have a direct pecuniary interest,
however small. Kirby J dissented on this point.
The death of the witness in Clenae went to necessity – a fair adjudication of the case required it be decided by the judicial
officer who had seen all the significant witnesses.
Disclosure is a matter of prudence not of law. The silence of the judge “could not reasonably support an inference of want
of impartiality.”

Jia[11]

Facts: The minister made decisions under the Migration Act to the effect that Mr Jia and Mr White were not permitted to remain
in Australia, by reason of their convictions respectively for rape and manslaughter. At an earlier stage of the process the AAT had
reversed the decisions of the minister. Among other things, s 502 required the minster to take account of the public interest.
Before remaking those decisions, the minister in a radio interview had commented adversely on the tribunal’s lenient treatment of
criminal deportees and had written in the same terms to the President of the AAT. The High Court held the actions of the minister
did not constitute actual or apprehended bias.

Issue: Publication of adverse opinions.

Held: “Decision-makers... sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has
been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is
blank; it is whether it is open to persuasion.”
“The position of the Minister is substantially different to that of a judge, or quasi-judicial officer, adjudicating in
adversarial litigation. It would be wring to apply to his conduct the standards of detachment which apply to judicial officers
or jurors.”
“...judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information
acquired otherwise.”
“...the only loyalty of the judge is to do justice according to law.” The Minister has loyalty to government policy and, in
this case, to take public interest into account.

BATAS[12]

Facts: Mr Laurie had smoked from 1946 until 1971. In 2006 he instituted a common law action under the Dust Diseases
Tribunal Act 1989 (NSW) against BATAS. The claim was that the company had been negligent in the manufacture, sale and
supply of tobacco products. Mr Laurie died in 2006 and his widow continued proceedings. The judge allocated to hear the matter
was Judge Curtis, who in 2002 and 2006 had made interlocutory findings in proceedings also involving BATAS. In 2009 BATAS
sought to have the judge disqualify himself on the ground of bias.

Issue: Deciding interlocutory matters involving the same party.

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Held: In dissent, French CJ noted the delay in time and the judge’s qualifying statements, such as that he would view the
“evidence as it stands presently,” which indicated that he was not taking other evidence into account.
“...what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a
conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented
to him or her.”
Also in dissent, Gummow J noted the need for public confidence and held that “for the observer there would be lacking the
necessary logical conclusion between the 2006 reasons and the Laurie litigation to support such an apprehension...”
The majority held that apprehended bias was present and noted:
“It is fundamental to the administration of justice that the judge be neutral.”
“Judge Curtis’s express acknowledgment of [the interlocutory proceedings] does not remove the impression created by
reading the judgement that the clear views there stated might influence his determination of the same issue in the Laurie
proceedings.”
On the issue of delay, the court noted that BATAS’s application to transfer the proceedings was refused in 2009, a month
before the application against the judge was filed.

Vakauta v Kelly[13]

Facts: The High Court held that the Supreme Court of NSW had miscarried due to apprehended bias arising from comments
made by the trial judge in the course of proceedings. The High Court held that the failure to object during the trial constituted a
waiver of bias but that the appearance of bias was revived by other remarks made in the judgement.

Issue: Ostensibly bias remarks made by the trial judge, impugning expert witnesses.

Held: It is inevitable that a judge who regularly sees the same expert witnesses may form opinions about their reliability. This
does not disqualify them from hearing matters where the witnesses appear.
Counsel has an obligation to object to apparently bias remarks at the time or they will waive the right to subsequently
object.

Hot Holdings Pty Ltd v Creasy[14]

Facts: The Minister made a decision to grant a mining licence. An unsuccessful applicant challenged the decision on the basis
that two officers involved in the process had a pecuniary interest in the outcome and their interest tainted the minister’s decision
with bias. The High Court held that no bias was present.

Issue: Decision-maker receiving advice from parties with a financial interest in the decision.

Held: The Minister himself had no pecuniary interest in the matter, no knowledge of his officers’ shareholdings and there was
“no ground to apprehend that he might have been influenced by a desire to promote their interests.”
The allegation was “that the Minister, acting on or taking account of such advice, which he believed was impartial, but
which could fairly be suspected was not, had himself for this reason not acted impartially.” However, “decision-makers...
often act on, or take into account, information or advice that comes to them from sources that are not impartial.”
The possibility that an officer’s conduct was bias does not necessarily mean that the Minister’s was.
“No person with a personal financial interest in the outcome of the matter participated in a significant manner in the
making of the impugned decision.”

End
This is the end of this topic. Click here to go back to the main subject page for Administrative Law.

References
Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

9. ↑ Textbook, pp 649-668.
1. ↑ Textbook, pp 641-43. 10. ↑ Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v
2. ↑ R v Sussex Justices; Ex Parte McCarthy [1924] 1 KB 256 Australia and New Zealand Banking Group Ltd (2000) 205
at 259 per Lord Hewart CJ. CLR 337.
3. ↑ (2008) 172 FCR 376. 11. ↑ Minister for Immigration and Multicultural Affairs v Jia
4. ↑ (1985) 7 FCR 277. (2001) 205 CLR 507.
5. ↑ Textbook, pp 643-47. 12. ↑ British American Tobacco Australia Services Ltd v Laurie
6. ↑ (1994) 181 CLR 41. (2011) 242 CLR 283.
7. ↑ Textbook, pp 647-8. 13. ↑ (1989) 167 CLR 568.
8. ↑ Textbook, pp 648-9. 14. ↑ (2002) 210 CLR 438.
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