Page 2130 - Week 06 - Tuesday, 22 June 2010
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absence of bias maintains that standard of probity and fair play which promotes confidence in the institution to which the decision maker belongs.” In this case it provides public confidence that public money will not be spent by the government to further their political ends.
The High Court has established two categories of bias, actual bias and apprehended bias. Actual bias exists when a decision maker’s mind is so closed to persuasion that argument against the view is ineffectual. This is set out in the case of the Minister for Immigration and Multicultural Affairs and Jia. It should be noted that it is difficult to prove this level of bias as it is so plain that such a transgression is rare.
Apprehended bias is of course more common and much more open to dispute and much more relevant to the purposes of today’s discussion. The High Court’s decision in Ebner and Official Trustee in Bankruptcy sets out that apprehended bias arises when in all the circumstances a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question the decision maker is required to decide.
This is an objective test; it is the impression of the reasonable person. That is all that is required. The question is not whether the decision maker’s mind is blank; it is whether it is open to persuasion. This point was also set out in Jia. The test is not real likelihood or real danger as is the case in the UK. In Australia, the bar is lower. The common law sets the test at the reasonable possibility; that is, it must be real and not remote. On this point I draw members’ attention to the High Court’s decision in Hot Holdings Pty Ltd and Creasy.
Having set out the tests that the judiciary has established and noted that the rule against bias applies to all decision makers, it must again be noted that the application of these principles outside of the judiciary must recognise and accommodate differences between court proceedings and other kinds of decision making.
In this instance the concern is that the decision maker has a particular, or particularly strong, political view. An ordinary belief in the ideas and values generally espoused by a particular party cannot in this case be sufficient to give rise to bias. Had they worked for or given an active indication of wanting to further the cause of the party to the extent that their decision making could be reasonably seen as possibly coloured by that desire for the success of a particular party, that would be sufficient to disqualify a person from performing the role.
With that in mind, I would like to turn to what I believe to be the most effective means of evaluating the existence or otherwise of bias. Justice Deane in the case of Webb and Regina set out four distinct but sometimes overlapping categories of case where an appearance of bias exists. The first is interest—some direct or indirect interest in the proceeding, decision or outcome, whether pecuniary or otherwise. The second is conduct—is there any conduct, including published statements? The third is association—is there a direct or indirect relationship, experience or contact with a person or persons interested or otherwise involved in the outcome of proceedings? And the fourth is extraneous information—is there anything else that we know about the decision maker?
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