TURC – Will Commissioner Heydon disqualify himself based on apprehended bias?

Commissioner Heydon is due to announce his decision on whether to disqualify himself tomorrow at 10am. The media discussions on whether Commissioner Heydon should dismiss himself from the Royal Commission on Trade Union Corruption (TURC) have focused on the political battle between the Labor Party and the Liberal Party, with the Labor Party claiming TURC has been a partisan witch hunt from the start. Few commentators have actually looked at the test for bias in depth.

The conduct in question:

Commissioner Heydon accepted an invitation to speak at the Sir Garfield Barwick address hosted by the Liberal Party. Commissioner Heydon withdrew his acceptance on 13 August.

The rule against bias

The rule against bias is based on the principle that “decision-making must be and be seen to be impartial”. In the case of Commissioner Heydon we are concerned with the “be seen to be impartial” component of the rule, being apprehended bias. Justice must not only be done but be seen to be done (Ebner at [6]).

The test for apprehended bias comes from Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 63:

Apprehended bias will exist 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” [6].

Whether apprehended bias is present in any given case is very fact dependent, as an observer will have different expectations of the impartiality required by a decision maker in different circumstances. Commissioner Heydon is presiding over a Royal Commission. Most of the cases involve executive decision making or judicial decision making. However, despite factual differences, the principles in these cases apply to Commissioner Heydon’s situation.

Applying the test for apprehended bias – principles from case law

1.       The test for  apprehended bias uses the word “might”. Anyone who has followed Justice Heydon’s career would realise he is a black letter lawyer and would not let the incident affect his decision making. However, this is irrelevant. The test requires no prediction as to how the decision maker will actually approach the matter.  The consideration is “one of possibility (real and not remote). Not of probability” (Ebner [7]).

2.       There are two steps to applying the test:

a.       Identify what it is that might lead a judge to decide a case other than on its legal and factual merits; and

b.      Identify the connection between the matter and the feared deviation from the course of deciding the case on its merits [Ebner [7]).

3.       There are four broad categories of bias (Webb and Hay v the Queen [1994] HCA 30 per Deane J at [12]):

a.       Disqualification by interest – “cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment”;

b.      Disqualification by conduct – “cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias”;

c.       Disqualification by association – “cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings”; and

d.      Disqualification by erroneous information – “cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”.

These categories overlap somewhat, particularly category 1 and 3, and category 3 and 4. Commissioner Heydon’s conduct in accepting an invitation to present at a Liberal Party event could come into the “disqualification by conduct” category.

4.       There is a difference between decision making as a Minister and judicial decision making, with the standards of detachment applicable to a Judge not applying to Ministers (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507). Commissioner Heydon is acting in his capacity as a Commissioner in the Royal Commission, not a Judge. While there is no case law on the application of the rule of bias to Royal Commissions, it is likely that a Commissioner will be held to similar standards of impartiality as a Judge.

5.       The “fair-minded lay observer”:

a.       Does not know the personality or character of the Judge. The fact a Judge has been a Judge for over 20 years and has consistently stuck to the black letter of the law is irrelevant (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

b.      Has a broad knowledge of the facts and circumstances of both the proceedings and the events leading to the claim of apprehended bias (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

Is the test satisfied?

While the finding of apprehended bias should not be made lightly, I believe the test for apprehended bias has been satisfied and that Commissioner Heydon should dismiss himself. The bare assertion that a judge 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 (Ebner, [8]). Counsel for the ACTU, Robert Newlinds QC, in his submissions, has elevated the claim of apprehended bias beyond a mere assertion. He identified the conduct and linked the conduct with the feared deviation. While some of the ACTU’s submissions are not at all relevant, such as that the Commissioner should excuse himself otherwise findings of the Commission will lack credibility, the ACTU appears to have satisfied the evidentiary burden required.

The “fair-minded lay observer” on seeing Commissioner Heydon accept an invitation to present at a Liberal Party function might reasonably believe that the Commissioner would not bring an impartial mind to the Royal Commission proceedings. The Royal Commission into Trade Union Corruption is inherently political. The alignment of trade unions with the Labor Party and the support the Liberal Party has publically given the Royal Commission is no secret. Such public alignment with the Liberal Party could cause the “fair-minded lay observer” to form the view the Commissioner would not bring an impartial mind to the Royal Commission. Again, the test is concerned with whether the “fair-minded” lay observer “might” form this view. The fact that Commissioner Heydon is a well-respected Judge who managed to be impartial throughout his judicial career is irrelevant. In fact, it is Commissioner Heydon’s respect for the law that will probably see Commissioner Heydon dismiss himself on the basis of apprehended bias tomorrow.

Isbester v Knox City Council [2015] HCA 20 – High Court finds bias and prevents Staffie from being put down - trends in administrative law 2015

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.