Introduction
On 10 June 2015 the High Court
delivered its judgment in Isbester v Knox
City Council [2015] HCA 20, invalidating a Knox City Council decision to
put down a Staffordshire terrier dog called “Izzy” on the ground of bias. In
this administrative law update, I outline the facts of the case, the
established rule against bias, and the High Court’s reasoning.
The facts - Isbester v Knox City Council [2015] HCA
20
Ms Isbester owned three dogs,
including the Staffordshire terrier “Izzy”. In August 2012, two of her dogs
attacked another dog in the park. When a passer-by tried to intervene, Izzy
attacked the person and caused a wound to the person’s finger.
Ms Hughes was the Knox City
Council employee responsible for regulating domestic animals and was the head
investigator looking after the August 2012 incident. As investigator, she
determined six charges should be laid, arranged for charges and summons to be
drafted and instructed the Knox City Council legal team to prosecute and
negotiate pleas with the dog owner, Ms Isbester. The Magistrate’s Court hearing
occurred on 12 September 2013 and Ms Isbester was convicted under s29 of the Domestic Animals Act 1994 (Vic) as the
owner of a dog who had caused serious injury to a person.
Under s84P(e) of the Domestic Animals Act 1994 (Vic) the Knox
City Council has the power to put down an animal where the owner has been
convicted of a s29 offence. Ms Isbester was informed that a council “Panel”
would make a determination on whether Izzy was to be put down, and that the
Panel would consist of the Director of City Development, the Manager of City
Safety and Health and Ms Hughes. The Panel members all held relevant delegated
authority and Ms Isbester participated fully in the process. On 15 October
2013, the Panel notified Ms Isbester of their decision to destroy the dog Izzy.
Ms Isbester appealed on several procedural fairness grounds. The only ground of
appeal that made it to the high court was bias.
The legal question
Whether the decision to put down the dog Izzy should be
quashed because of the substantial involvement of the council employee Ms
Hughes in both the prosecution of charges concerning the dog and in the
decision of the Panel as to the fate of the dog.
A crash course in the rule against bias:
The rule against a decision maker being affected
by bias is part of the broader concept of procedural fairness. The test for
whether bias exists is “whether a reasonable observer might apprehend that the
decision maker might not resolve the matter with a fair and prejudiced mind”.
The test is known as the “reasonable apprehension test”. If there is a
“possibility” a reasonable observer would apprehend the decision maker is
biased, the potential decision maker should not be involved in the decision.
Examples of bias include:
1.
Direct interest in proceedings;
2.
Disqualification by association – for example a person who is
associated with parties, lawyers, or witnesses should not be the decision maker.
A very weak form of association could be permitted, as the test is whether a
reasonable observer would have a “reasonable apprehension” of bias in the
objective circumstances.
3.
Disqualification by extraneous information – for example a person
who has strong personal prejudice.
4.
Disqualification by conduct – for example a prosecutor cannot also
act as an adjudicator.
The category of the rule against bias relevant in
this case is that a person cannot both investigate/prosecute and adjudicate proceedings. The
investigator/prosecutor should not even be present for the adjudication
proceedings, as a reasonable apprehension of bias may arise despite no actual
bias occurring. Stollery v Greyhound
Racing Control Board (1972)
128 CLR 509 is the landmark High Court case in this area. Mr Smith was a board
member who investigated allegations of bribery for a greyhound racing
registration application made by Mr Stollery. There was a Board meeting to
decide whether to disqualify Mr Stollery. Mr Smith was present in the room
during the decision making process. The decision was invalidated by the High
Court, as Mr Smith was the investigator, he should not have been in a position
to influence the adjudication of the Board.
There are a few exceptions to the rule against
bias:
1.
Necessity – where there is no other qualified person available to
make the decision, the otherwise disqualified person may be able to make the decision. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 the
statutory requirement that a tribunal perform its functions prevailed over the
rule against bias.
2.
Statutory exclusion – where there is a statutory exclusion, it
will be construed narrowly, so only the degree of bias essential for the
operation of the statutory scheme will be permitted - Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55.
3.
Waiver – a person aware of the right to object due to bias must do
so at the earliest opportunity or risk “waiving” their right to assert bias, barristers
should always raise the possibility of bias at their earliest opportunity - Vakauta v Kelly (1989) 167 CLR 568.
The High Court’s comments on bias in Isbester v Knox City Council [2015] HCA 20
In their succinct
joint judgment (I highly recommend you read it because it is so short!), the
High Court clearly set out the test to be applied as “whether a fair-minded lay observer might reasonably
apprehend a lack of impartiality with respect to the decision to be made” [20].
They identify that the case before them is concerned with the incompatibility
of roles or a conflict of interest [24]. In particular, whether a person's
involvement in the matter antecedent to the decision is incompatible with his
or her participation in the subsequent decision [28]. Ms Hughes antecedent
involvement in the matter was as a prosecutor. The unanimous High Court state “It
is generally expected that a person in this position may have an interest which
would conflict with the objectivity required of a person deciding the charges
and any consequential matters, whether that person be a judge or a member of
some other decision-making body”, drawing this principle from the cases of Dickason v Edwards [1910] HCA 7 and Stollery v Greyhound Racing Control Board [1972] HCA 53.
The following points made by the High Court are of particular
note. The first four are drawn from the joint judgment of Justices Kiefel, Bell,
Keane and Nettle, while the fifth point is drawn from Justice Gageler’s judgment.
1.
Were
the decisions related enough that participation in both was incompatible?
Knox City Council attempted to characterise the proceedings
in the Magistrate’s Court and the subsequent decision by the Panel as separate
stages that involved separate issues of the dog’s fate, and that Ms Hughes
interest as a prosecutor ended when the Magistrate’s Court proceedings ended
[40]. The High Court was not convinced and said a line could not be drawn to
quarantine her actions as prosecutor from her actions on the Panel, and that Ms
Hughes did have a continuing interest in the matter:
“It is reasonably to be expected that her involvement in the
prosecution of the charges created an interest in the final outcome of the
matter. Ms Hughes' continuing interest in the matter may be tested by asking
whether, if the Magistrates' Court had been asked to make an order for
destruction, as could have been done following conviction, it might reasonably
be apprehended that she would remain interested in whether the Magistrates'
Court granted the order. The answer must clearly be "Yes".” [42].
2.
Was
the disqualifying interest personal enough to Ms Hughes?
After identifying the disqualifying interest, the High Court
consider whether the interest was of a sufficiently personal level as in Stollery, where the decision maker was
directly confronted with a bribe. The High Court explained that a “personal
interest” does not have to mean receiving
personal benefit, and in the case of a prosecutor such as Ms Hughes, it
refers to a view of the matter which is personal to them [46].
3.
Did
it matter that Ms Hughes did not make the final decision?
Although there was a
Panel to review the matter, the final decision was made by the Director of City
Development. The High Court dismissed this submission. The participation of
others does not negate the apprehension that Ms Hughes interest in the outcome
could affect the decision making of others. This principle is clearly
established in Stollery where the
mere presence of the prior decision maker in the room was sufficient to cause
an apprehension of bias in a reasonable person.
4.
Did it matter that Ms Hughes carried out
her duties with the outmost integrity?
It is not an exception
to the bias rule if the person acted diligently and according to their duties.
5.
The three-step test (Gageler J)
It is also useful to
note the three-step test Gageler J outlines in his own judgment to approaching
these bias questions:
Step 1 –“identification of the factor which it is
hypothesised might cause a question to be resolved otherwise than as the result
of a neutral evaluation of the merits”;
Step 2 –“articulation of how the identified factor might
cause that deviation from a neutral evaluation of the merits”; and
Step 3 - consideration of the reasonableness of the
apprehension of that deviation being caused by that factor in that way” [59].
Legal outcome
The High Court unanimously quashed the Knox City Council Panel decision
(ie an order of certiorari was made). While the practical outcome was that a
dog’s life was spared, the legal outcome in the judgment is also useful, as the
High Court drew together a useful and succinct summary of the principles of
bias in decision making, as well as clarifying how “personal” the interest has
to be to the decision maker.
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