Apprehended Bias in Australian Administrative Law

AuthorJohn Griffiths
Publication Date01 September 2010
John Griffiths SC
Although the basic test for apprehended bias is now well-established in Australian
law, its application continues to present difficulties. The basic test is whether a fair-
minded lay observer with knowledge of the material objective facts might reasonably
apprehend that the judicial or administrative decision-maker might not bring an
impartial and unprejudiced mind to the resolution of the question at hand.1 It is
equally well-established that, while the same objective test applies to judges as to
tribunal members and oth er public decision-makers, the application and c ontent of
that test varies depending on the context, including differences in decision-making
roles, functions, powers and processes.2
The application of the test can be problematic and somew hat unpredictable. For
example, despite the unqualified terms of the relevant parts of the High Court's
decision in Ebner, it now appears that, at least in the context of curial decision-m aking,
the Ebner two-step test is not universal in its application. It requires some refine ment in
certain circumstances, including where the alleged apprehended bias arises from
matters giving rise to an 'association', where those matters are ongoing at the time of
the relevant decision-making.3
Another area of difficulty and uncertainty concerns the exten t of the knowledge to
be imputed to the lay observer. The basic test is intend ed to be wholly objective, but
some significant subjective elements are emerging to the poin t where the test is
described by some as fundamentally 'a matter of general impression derived from the
1 Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 29394, 300; Re Polites; Ex
Parte Hoyts Corporation Pty Ltd (1991) 1 73 CLR 78; Webb v R (1994) 181 CLR 41, 67 ('Webb');
Johnson v Joh nson (2000) 201 CLR 488, 492 [11] ('Johnson'); Ebner v Official Trustee in
Bankruptcy (2000) 205 CLR 337,344 [6] ('Ebner'); Re Refugee Review Tribunal; Ex parte H (2001)
179 ALR 425, 434 [27] ('Ex Parte H'); Concrete Pty Ltd v Parramatta Design & Developments Pty
Limited (2006) 229 CLR 577 ('Concrete Pty Ltd'), 609 [110]; McGovern v Ku-ring-gai Council
(2008) 72 NSWLR 504 ('McGovern'); Weinstein v Medical Practitioners Board of Victoria (2008)
21 VR 29 [35].
2 Ebner, 344 [4]; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR
507, 533, 539 [78], [101], [102] ('Jia'); Ex parte H at [28], [29]; Hot Holdings Pty Ltd v Creasy
(2002) 2 10 CLR 438 ('Hot Holdings'); Greyhound Racing NSW v Cessnock and District
Agricultural Association [2006] NSWCA 333 (Unreported, Beazley, Hodgson and Basten JJA,
27 November 2006) [118] ('Greyhound Racing NSW'); McGovern (2008) 72 NSWLR 504, 507-
08 [6][13], 517-18, [75][77].
3 Murlan Consulting Pty Limited v Ku-ring-gai Municipal Council (2009) 170 LGERA 162, 177
[57] ('Murlan').
354 Federal Law Review Volume 38
evidence',4 while others see it as re quiring a more detailed analysis.5 Such subjectivity
is particula rly evident when a review court selects only some (and disregards other)
particular aspects of the conduct, relationship or interest said to give rise to a
reasonable apprehension of bias which ought to be imputed to the hypothetical lay
observer. The success or failure of an allegation of apprehended bias is frequently
dictated by the extent of the knowledge or information so imputed.
One commentator has suggested that 'conflicting and confusing' jurisprudence has
developed because courts are applying the basic test too literally and detached from
competing policy objectives.6 He has suggested that a better a pproach would be to
inject an open balancing e xercise into the application of the test. Such a balancing
exercise would require the review court openly to add ress and assess competing policy
considerations. Such suggested considerations include not only maintaining public
confidence in public decision -making, but also other policy objective s, such as
reducing the risk of erroneous decisions, promoting efficiency of public decision-
making and acknowledging the interests of the party asserting apprehe nded bias.
Having regard to the less demanding requirements of a 'might/might not' test, it is
unsurprising t hat, with few exceptions, litigants see no need to raise claims of actual
bias (which carry a 'heavy onus' and must be 'distinctly made and clearly proved').7 As
a matter of general impres sion, there is a growing tre nd to raise apprehended bi as in
judicial review pr oceedings.8 That may be partly explicable because some litigants are
taking adva ntage of the uncertain boundaries and less demanding requirements of a
test which has at its core concepts of 'might/might not'.
This article explores these and related issues.
As noted above, the current formulation of the basi c test for apprehended bias in
Australian law is the same for both curial and non-curial decision-making. It is
whether a fair-minded lay observer with knowledge of the material objective facts
might reasonably apprehend that the judicial or administrative decision-maker might
not bring an impartial an d unprejudiced mind to the resolution of the question at
4 Jia (2001) 205 CLR 507, 552 [146].
5 See, eg, Johnson (2000) 201 CLR 488; Mid Western Community Action Group Inc v Mid-Western
Regional Council (No 2) [2008] NSWLEC 143 ('Mid Western').
6 Simon Atrill, 'Who is the "fair-minded and informed observer"? Bias after Magill' (2003) 62
Cambridge Law Journal, 279, 289.
7 See South Western Sydney Area Health Service v Ed monds [2007] NSWCA 16 (Unreported,
Giles JA, Tobias JA, McColl JA, 16 February 2007) [97]. Jia involved claims of both actual
and a pprehended bias, refl ecting statutory restrictions on h eads of judicial review under
the Migration Act 1958 (Cth) and their non-application to the constitutional writs.
Traditionally, actual bias appears to be the only test applicable to domestic or non-statutory
tribunals: see Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 60 and J R S
Forbes, Justice in Tribunals, (2nd ed, 2006) 279, but see also Bundagen Co-operative v Battle
[2010] NSWSC 160 (Unreported, Latham J, 5 March 2010).
8 In Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action,
(4th ed, 2009) 746, the authors refer to 'an alarming increase in the number of cases in which
bias is now alleged'.

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