Procedural Fairness- BIAS- Lecture notes PDF

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lecture notes used for the exam on procedural fairness- bias...

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Procedural Fairness: Bias The bias rule: Principle Justice must not only be done, but should be seen to be done - . R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ “justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking : “the judge was biased” – Lord Denning Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599. How? Bias may result from the decision makers: - Interest (financial) in the matter - Conduct in the proceedings - Association ( eg. With one of the parties) - Prejudgment of a key issue or personal prejudice - Possession of extraneous(irrelevant) information So bias may be pecuniary (financial interest) or non-pecuniary ( by association, conduct, prejudgment or possession of extraneous information) Consequences of bias 1. Before decision - Decision maker cannot further participate – disqualified and must withdraw - Often used in this way i.e. to prevent participation by person of concern 2. -

After decision Decision is tainted therefore invalid All preceding’s are also tainted E.g. Tahmindjis v Brown (1985) 7 FCR 277 (see Creyke 5th at 11.5.4) – 12 month, $16m trial; terminated and defendants never retried after magistrate made 2 confidential telephone calls to the solicitor for the prosecution, in the second of which he expressed a view that the proceedings could not succeed.

NB: where it is apprehended bias, the DM does not need to actually be biased – just look like they are. This is enough to disqualify them.

Two bias tests : Actual bias -

Pre-existing state of mind which makes it impossible for the decision maker to make an impartial decision Focus on subjective state of mind of the decision maker

Reasonable apprehension of bias

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would a fair-minded person reasonably suspect or perceive that the decision maker has an interest in the outcome of the matter OR has prejudged it focus on the circumstances of the decision-making process, rather than the decision makers actual state of mind

Is perception or prejudice the basis for a claim of bias? • FCAFC rejected the idea that people are entitled to a DM of the same ethnicity: Paramasivam v Juraszek [2002] FCAFC 141 at [8]. Some case law confronts the failure of the common law of bias to engage with prejudice: ‘A decision maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characterization of prejudice is the lack of recognition by the holder… Decisions made upon assumptions or prejudgments concerning race or gender have been assumptions or preconceptions which in fact governed their decision making. Thus, actual bias may exist even if the decision maker did not intend or did not know of the prejudice, or even when the decision maker believes, and says, that they have not prejudged a case’ - North J Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 Bias towards the individual: “Bias rule has not impacted on complaints about systematic gender or racial bias despite changes in community perceptions and the development of anti- discrimination laws. Generally, the bias rule is focused on biased attitudes towards individuals rather than biased attitudes towards a group.” - Douglas, Butterworths Tutorial Series: Administrative Law Para 11.2.15 Demonstrated racism R v Rankine River Justices; Ex parte Sydney (1962) 3 FLR 215 Racist statements by a JP outside court- “natives must be kept under the thumb”impugned the courts conviction of two aboriginal defendants If confronted with a problem where the issue of prejudice suggests possible bias consider whether: - The prejudice is specific to the parties or - If it is general (towards a group or class of persons) whether it is so intense as to amount to bias Actual bias Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 “ Must be a pre-existing state of mind which: disables the decision maker from undertaking, or renders him unwilling to undertake any evaluation of materials relevant to the decision, or any proper evaluation of materials relevant to the decision.” - a very high threshold

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Subjective test- the DM must actually hold the state of mind which renders him/her biased To prove actual bias it is necessary to establish that the state of mind of the decision maker him/her from actually evaluating the material relevant to the decision The focus is on the DM’s attitude not on the decision itself or the decision-making process It is not enough to demonstrate that on the DM’s provisional views it will be “an uphill job to persuade him (the DM) away from those views” French J Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106-7

Apprehended bias An applicant in an apprehended bias case is not concerned with the actual state of mind of the DM. -the focus of attention is on the decision itself and the manner by which it was apparently reached - the criteria are not subjective to the decision maker; they are wholly objective - the DM’s actual motivations or state of mind are not scrutinized - apprehended bias is judged by how the decision and the process of arriving at it, might appear to persons affected and to the public: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Case comments: -

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‘it is the appearance rather than the actuality of bias by prejudgment’ which is the critical factor: Livesy v NSW Bar Association (1983) 151 CLR 288 if a fair minded and objective bystander would entertain a reasonable apprehension that the DM would not bring an impartial and unprejudiced mind to the resolution of the question involved: Laws v ABT (1990) 170 CLR 70 apprehended bias must be “firmly established”: R v Commonwealth (1969) a decision unfavorable to a party is not necessarily a biased decision: Re JRL; E parte CJL(1986)

Which bias test should apply?: actual versus apprehended? 1> Look to the legislation: some statutes may impose a test of actual bias rather than apprehended bias 2> Absence of a statutory directive OR in certain situations : the test of apprehended bias will be the appropriate basis upon which to assess bias in administrator Apprehended or imputed bias

Basic test from Ebner: A fair-minded lay observer might reasonably apprehend that the DM might not bring an impartial or unprejudiced mind to the resolution of the question the DM is required to decide Ebner v Official Trustee in Bankruptcy (2000) Therefore, it is an objective test compared to the subjective test of actual bias The test- apprehended bias The test for apprehended bias will generally be the same for all types of decision makers, but its application will vary depending on: - The dm’s function and - The circumstances of the case Jia (2001) 205 CLR 507; and Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 Rationale of the apprehended bias test: protection of the judiciary and public perceptions of the integrity of the justice system? -

There is no consideration of actual bias because the courts want to retain public confidence in the decision-making process for public confidence in the administration of justice Webb v the Queen (1994

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The apprehended bias test allows respect to public perception (objective test) rather than scrutinizing the actual motives and beliefs of judicial officers

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It retains integrity of the court or decision-making institution while protecting the interests of the individual Livesy v NSW BAR Association

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Livesy v NSW BAR Association Held The case should not be resolved by reference to the ability of the members of a particular court or the public confidence in the integrity of the judiciary. So: what is at issue is the appearance not the actuality of bias / prejudgement. Lots of discussion about the nature of the ‘observer’, both judicial and academic – E.g. Simon Young, ‘The Evolution of Bias: Spectrums, Species and the Weary Lay Observer’ (2017) 41(2) Melbourne University Law Review

Applying the test of apprehended bias: Ebner v Official trustee in bankruptcy (2001) First: identify the factor/s which lead to an assumption that the DM might be less than impartial Second: establish how the factor/s identified on step one might have undermined the DM’s impartiality, leading to a possibility of lack of objectivity

Any claim of justice must be judged in context, this will require reflection on the type of power being exercised by the DM and the circumstances in which it is exercised. Held: In both cases trial judge not disqualified from proceedings. As a matter of practise and prudence it would be good for judge to disclose interest but this is not a legal obligation. • In Ebner the appellant did not establish a connection between the judge’s interest in the shares and the possibility that the judge might not decide the case on its merits. • Had the judge in Clenae case disqualified himself from giving judgement – – it would require new trial, – without a significant witness, and – this would undermine the public administration of justice not enhance it. His failure to disclose did not deprive the appellants of any opportunity to advance their case etc. •

Categories of apprehended bias 1) Disqualification by interest: - direct or indirect interest in proceedings, financial or otherwise. - depends upon the directness of the interest, its magnitude and surrounding circumstances (Ebner) 2) disqualification by conduct: - including published statements - conduct either in course of, or outside, the proceedings - e.g. Vakuta v Kelly (1989) 3) disqualification by extraneous information: - knowledge of some prejudicial but inadmissible fact or circumstance - note the crossover here with the hearing rule on disclosure: Webb v the Queen (1994) - “the judge is required to discard the irrelevant, the immaterial and the prejudicial “ (Vakuta v Kelly) 4) Disqualification by association: - direct or indirect relationship - Experience or contact with a person or persons interested in, or otherwise involved in, the proceedings - In the case of professional associations, depends upon the nature of the associationrecent, long ago, the type of tribunal etc ( Hot holdings pty ltd v Creasy (2002). 5) Disqualification by prejudgment: - not just a mere ‘expression of opinion’ - The expression of opinions during the course of a hearing does not necessarily mean that all decision maker might not bring his/her work an unprejudiced mind Vakuta v Kelly (1989) The significance of the process of decision making - The statute may require that the decision-maker form opinions and provisional views identified matters of policy or fact - Has the decision maker expressed views which suggest they have prejudged the case or, have they expressed provisional views and remain open to submissions and arguments on the issue? Laws v Australian Broadcasting Tribunal (1990)

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R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) Argued – CCAC should be disqualified from hearing another case where equal pay was at issue as apprehension of bias. Held – because of task CCAC was required to perform – they were entitled to form opinions and provisional views on identified matters of policy and fact – this did not amount to prejudgement. Political decisions Political decisions are rarely challenged on the grounds of bias as such decisions are inherently likely to reflect preconceived views.’ Douglas, Butterworths Tutorial Series: Administrative Law Para 11.2.20 In many political decisions there is no requirement to accord PF at all, so bias rule does not apply Ministers: entitled to enter into public debate and comment on matters within their portfolio- such conduct will generally not evidence bias Minister for Immigration and Multicultural Affairs v Jia (2001) - Minister decided to deport Jia (s.501 Migration Act) on basis that Jia’s conviction for rape evidenced that he was not a person of ‘good character’ (i.e. he failed the‘character’test in s.501). Held FCAFC: that decision was flawed for actual bias because the minister had made public remarks: – prior to making the decision (radio interview) and – officially (letter to the President of AAT) expressing concerns about Jia’s conduct. High Court reversed decision on appeal.: The conduct of a minister may need to be evaluated in the light of his or her political role, responsibility and accountability’ [to parliament and the electorate]. … In considering whether conduct of a decision maker indicates prejudgment … The nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance

The rule of necessity - where a tribunal has investigative or prosecutorial functions, as well as adjudicative functions, an appearance of bias may be unavoidable - the rule of necessity would allow a DM which cannot delegate its decision-making power to make the decision despite the possibility of the appearance of bias, provided the relevant legislation created a statutory duty to follow the procedure which generated an appearance of bias -

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the DM was the ABT  could not delegate i.e. had to make the decision, regardless of perceptions of bias. : Laws v Australian Broadcasting Tribunal (1990) the rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of the statute - Laws v Australian Broadcasting Tribunal (1990)

Key points an applicant needs to argue to establish bias -

Usually the test will be apprehended bias – but sometimes: >The terms of the statute or >The nature of the DM body Will mean the actual bias test applies

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Identify the conduct or association which might give rise to bias- is it anything like one of the loose categories of bias that have been recognized as founding bias claims?

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In the context of the decision- type and character of the DM – is that conduct/ association likely to found a claim to bias in the case you’re considering?

Note: that it will nearly always be apprehended bias, even if actual bias is present(!), due to the extreme difficulty in proving actual bias...