20 The grounds upon which the applicant relied were expressed in somewhat general terms in the amended application. In the course of argument, they refined themselves into two grounds. The first was that a breach of the rules of natural justice occurred in connection with the making of the decision, within the meaning of s 5(1)(a) of the ADJR Act, in that a reasonable person would have apprehended that the DAC's deliberations were tainted by bias against the applicant. The second ground, pursuant to s 5(1)(e) and s 5(2)(a) of the ADJR Act, was that the making of the decision was an improper exercise of the power conferred by s 63D of the Public Service Act, because the DAC took into account an irrelevant consideration in the exercise of its power to hear and determine the appeal. Both grounds arose from the transmission to the DAC prior to the hearing of the appeal of documents, including a substantial folder of material, and the use which the DAC made of that folder.
21 The folder contained a number of formal documents, relating to the appointment of Mr Hackett to investigate the allegations against the applicant, the suspension of the applicant pending the inquiry and the two charges the subject of appeal. It contained correspondence between solicitors then acting on behalf of the applicant and Mr Hackett, relating to the seven charges against the applicant. It contained written statements of witnesses interviewed by Mr Hackett in relation to the two charges the subject of the appeal and transcripts of interviews between witnesses and Mr Hackett. The transcripts included an interview with the former manager of the Criminal Deportation Unit, who held that position in March 1999. The interview included the former manager's very favourable expressions of opinion as to the credibility of Ms O'Brien. The folder included the complete report of Mr Hackett, relating to all seven charges with which his investigation had dealt. That report contained details of the allegations made against the applicant and of the findings of Mr Hackett in relation to them.
22 Finally, although not in the folder, the DAC received a report from the Brighton Psychology Centre dated 22 June 1995 of a psychological assessment of the applicant, and a report of a consultant psychiatrist dated 21 August (probably in 1996). Apparently these two reports had been produced in relation to a previous claim by the applicant for workers compensation. The latter report made reference to allegations of sexual misconduct made by a female student when the applicant worked previously as a school teacher. It did not contain any information as to any result of the making of any such allegation. The psychologist's report described the applicant as having a "maladaptive personality style with passive/aggressive tendencies." The consultant psychiatrist's report described him as "a rather prickly individual who could easily be slighted", but as suffering from no discernible psychiatric disorder at the time of the report.
23 The applicant's first contention was that the provision of this material to the DAC prior to the hearing of his appeal led to the DAC being biased. It is, of course, unnecessary for the applicant to show that the DAC held any actual bias against the applicant. The question is not one of the actual state of mind of a decision-maker. The test to be applied is the same as that expressed by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294:
"[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."
The test, therefore, is an objective one and is to be determined by reference to standards of reasonableness.
24 In Hercules v Jacobs (1982) 60 FLR 82, a former employee of the Australian Telecommunications Commission applied to the Court pursuant to s 5 of the ADJR Act for an order of review in respect of a decision of a disciplinary appeal board constituted under the Telecommunications Act 1975 (Cth). The decision of that board had been to dismiss the employee from his employment. Prior to dealing with the appeal, the board had received from the Australian Telecommunications Commission a copy of its file relating to the charges against the employee. The file contained material which ought not to have been brought to the board's attention, including information about a previous conviction of the employee. Applying the reasonable apprehension of bias test, Fitzgerald J quashed the
decision of the board. His Honour was particularly influenced by the fact that the employee's credit-worthiness was important to the board's deliberations.
25 In Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57, Wilcox J overturned the decision of a similar disciplinary tribunal in the public service on the ground of apprehended bias. In that case, the chief officer of the department of the officer concerned had published within the department material that was highly critical of the officer's conduct. At 76 - 79, Wilcox J found that it was unlikely that such material had escaped the attention of the chief officer's nominee to the disciplinary tribunal, who was himself an officer of the same department. On the basis that one member out of three of the disciplinary tribunal was likely to have learned of the adverse material, Wilcox J held that there was a reasonable apprehension of bias on the part of the tribunal in approaching the hearing and determination of the disciplinary appeal.
26 In Day v Douglas [1999] FCA 1444, at [45], Gyles J said:
"The applicant also sought to have the DAC decision set aside because of the manner in which material relating to a former disciplinary offence was utilised during the proceedings. I was not persuaded that there was any error sufficient to justify judicial review in what was done. However, that does not mean that I approve of what was done. On the contrary, I cannot see any legitimate forensic basis upon which counsel for the second respondent tendered, at the outset of the case, prejudicial material which was put forward as relevant only to penalty."
27 On appeal, in Commonwealth of Australia v Day [2000] FCA 474, at [22] - [24], the Full Court said:
"In the court below Gyles J expressed his disapproval of the tender by Customs of Mr Day's antecedents at the outset of its case before the DAC. The Commonwealth complains that it was not heard on this question before his Honour and, on the hearing of the appeal, it sought to justify that tender by reference to various legislative provisions and to guidelines issued by the Agency under s 8(2)(b) of the Merit Protection Act. Those guidelines are published in Chapter 5 and Part IV of Chapter 7 of the Agency's Operations Manual. (Copies of those Chapters, which were not in evidence in the court below, were received in evidence on the appeal.)
The Commonwealth submits that s 37(1) of the Merit Protection Act is particularly relevant. It provides, in effect, that the procedure of the DAC is within its discretion and that proceedings shall be conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter permits. But that provision does not absolve the DAC of the obligation to accord procedural fairness. Further, reg. 145 of the Public Service Regulations, to which the Commonwealth refers, does not provide for documents furnished to an appellant in a timely fashion also to be given to members of the DAC ahead of the hearing. It is true that the guidelines issued by the Agency assume that documents 'previously provided' may 'need to be formally re-presented' (paragraph 7.46(3)), but the prior distribution of such documents is included in a different part of the Agency's Manual only as administrative guidance for the assistance of its staff. Contrary to the submissions of the Commonwealth, the decision in Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 also provides no authority for the course adopted by Customs in this case before the DAC. In Barnes the evidence relating to penalty was of an entirely different character and had no ramifications for the credit of the officer in respect of the charges he was facing.
The guidelines in Chapter 5 of the Agency's Manual state (paragraph 5.30) that the procedural requirements of natural justice will vary according to the particular circumstances of each case. That it (sic) is the instruction that should be steadily borne in mind by Customs in the further conduct of Mr Day's appeal under s 63D of the Act. It is unnecessary now to determine his contention on this point, but we may say that we share Gyles J's disquiet about what happened prior to and at the first hearing. The particulars of Mr Day's antecedents were irrelevant to whether he was guilty of the charge he is presently facing. Yet such information was apt to poison the mind of the DAC, notwithstanding its subsequent disclaimer. If Mr Day is eventually found guilty by a new Disciplinary Appeal Committee, evidence can be subsequently adduced of his history on the question of penalty, to which issue alone such evidence is relevant."
28 These authorities suggest strongly that the practice of providing to a Disciplinary Appeal Committee material from the file of an investigating officer prior to the hearing of an appeal under s 63D of the Public Service Act should not have been followed, particularly in a case where the credit of the officer concerned, and of another witness or other witnesses, was crucial to the outcome. This was one such case. The DAC specifically found Ms O'Brien to be a more credible witness than the applicant. It regarded its preference for the evidence of Ms O'Brien to that of the applicant as crucial to its decision. In such a case, there is a very real risk that members of a tribunal can be influenced in their assessment of the credit of witnesses by their background knowledge about the officer concerned, gleaned from the information provided in advance.
29 In the present case, as I have said, the DAC had in its possession before the hearing the folder of documents containing Mr Hackett's report, statements of witnesses and records of interview with witnesses. Early in the hearing, the chairman of the DAC announced that the DAC "is aware of the nature of the charges and has read the statements of evidence, if that's what they're called." Those statements were contained in the folder. It is therefore clear that the DAC had read at least some documents from that folder. It is likely that its members had read the whole of the folder. That appears to have been the object of providing them with it. It does not take much imagination to see the damage that could be done to the applicant, in a case in which his credibility was treated as crucial, by knowledge on the part of the members of the DAC of the findings of Mr Hackett in relation to the five charges that were not before the DAC and of the reports of the psychologist and the consultant psychiatrist as to the applicant's earlier mental state and his personality. Of particular importance was the mention in the consultant psychiatrist's report of a previous allegation of sexual misconduct. It was also entirely inappropriate that the members of the committee should see, or should have been provided with the opportunity to see, the opinion of the former manager of the Criminal Deportation Unit as to Ms O'Brien's credibility.
30 In response to this argument, counsel for the second respondent referred to Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158. In that case, an appeal from a decision to refuse a visa under the Migration Act 1958 (Cth) came to the Administrative Appeals Tribunal, constituted by a deputy president of that tribunal. Among the documents transmitted to the tribunal was a statement of a police officer relating to the visa applicant and his brother and particularly to their alleged involvement in criminal offences. The deputy president had refused to disqualify himself on the ground of apprehended bias. The visa applicant appealed to the Court. Heerey J upheld the decision of the deputy president. At [13], his Honour pointed out that a deputy president of the tribunal must be a legal practitioner of at least five years' standing and that the tribunal was not bound by the rules of evidence but could inform itself on any matter in such manner as it thinks appropriate. His Honour regarded the deputy president as perfectly capable of disregarding parts of the police officer's statement, or giving little weight to parts of it, as appropriate. Counsel for the second respondent in the present case drew parallels between the Administrative Appeals Tribunal and the DAC. Like the deputy president, the chairman of the DAC, unless a magistrate or former magistrate, was required to have been qualified as a legal practitioner for five years, pursuant to s 17(2) of the Merit Protection Act. Like the Administrative Appeals Tribunal, the DAC was not bound by the rules of evidence.
31 There is one important point of distinction between the present case and Madafferi. In Madafferi, the deputy president of the Administrative Appeals Tribunal was sitting alone. In the present case, the DAC consisted of three persons. Although the person chairing the DAC might have been perfectly capable of disregarding prejudicial and irrelevant material, or giving little weight to material to which little weight should have been attached, there is no requirement that the other two members of the DAC have legal training. Given the manner of their appointments specified in s 17(1) of the Merit Protection Act, it is unlikely that they were lawyers. Their voting power within the DAC was equal to that of the chairman. Given that the disqualification of one member of a multi-member tribunal for bias is sufficient to taint the entire tribunal (as in Phillips), it cannot be argued that Madafferi is in point. In my view, Hercules, Phillips and Day constitute a clear body of law relating to Disciplinary Appeal Committees under s 63D of the Public Service Act. Those authorities make it clear that the receipt by such a committee prior to the hearing of an appeal of material adverse to the credibility of the officer appealing, where such credibility is a matter to be determined by the committee, is sufficient to give rise to a reasonable apprehension that the committee might not bring an impartial and unprejudiced mind to the resolution of the appeal. In my view, such a reasonable apprehension existed in relation to the DAC.
32 That is not necessarily the end of the matter in relation to the ground of bias. It is established that a party may waive the right to object to apprehended bias on the part of a decision-maker. In Vakauta v Kelly (1989) 167 CLR 568, the High Court of Australia held that a party to a court proceeding, by not objecting at the trial to remarks giving rise to a reasonable apprehension of bias, had waived the right to appeal against the judgment on the
ground that the trial judge had made those remarks. At 572, Brennan, Deane and Gaudron JJ said:
"Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her."
At 577, Dawson J said:
"There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice."
At 588, Toohey J said:
"While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken. The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing."
33 The strictness of the High Court's position in Vakauta seems to have been modified somewhat by subsequent decisions. As Kirby P (as he then was) pointed out in Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684, at 686 - 687:
"Yet a failure by a legal representative at the trial to note objections and to ask that they be recorded, although often a significant handicap, may sometimes be explained in the forensic setting. It will be rare that it is to a party's advantage for its representative to challenge the fairness of a judge. Or to impugn the judge's neutrality. Still more rare will it be to suggest bias, or the appearance of bias, on the part of that judge. To the end of the trial, the parties and their representatives depend so heavily upon the opinion of the judge that there will be natural inhibitions, psychological impediments and forensic constraints which restrain challenges of this kind where they are not absolutely necessary. Where there is a professional Bar, the ongoing relationships with judges in other cases adds a further restraint which it would be naive to ignore."
34 In Johnson v Johnson [2000] HCA 48, (2000) 174 ALR 655, at [79], Callinan J drew attention to what, in his Honour's view, are problems to which some of the statements in Vakauta may give rise:
"…that, on one view, the literal application of them may have the consequence that a higher and greater responsibility to ensure the conduct of impartial proceedings is imposed upon counsel than the judge trying the case; that an apprehension of bias may be created cumulatively, so that its full impact and relevance may really only become apparent when judgment is pronounced; that exceptionable, apparently biased statements by judges in the course of proceedings may confront counsel with dilemmas which it is almost impossible for them to resolve, or to resolve without causing offence to the court and the creation of a not unreasonable perception on the part of the parties, of prejudice to the one who takes the point; the risk of other dilemmas of the kind to which the Court referred in Livesey; that in some exceptional cases a submission of apprehended bias may be no more than a polite fiction for no doubt unintended, unconscious and ultimately unprovable, but nonetheless actual bias; and that the application of formal, technical principles of waiver to a party upon the basis of the conduct of his or her counsel in not checking inappropriate and judicial conduct, may produce unfairness to that party."
35 Accepting that it is possible for a party to a proceeding to waive the opportunity to argue that the court or tribunal should be disqualified on the ground of apprehended bias, the question must arise as to what amounts to a waiver. As appears from the facts of Vakauta, silence can amount to a waiver. In the light of more recent authorities, whether it will do so may depend on the forensic circumstances. It is clear from Vakauta that it is unnecessary for a party to invite the judge, or the member or members of the tribunal, to disqualify himself, herself or themselves. The taking of an objection is sufficient to preserve the right to challenge an unfavourable decision at a later date on the ground of apprehended bias. The rationale of the rule is that an objection will give the court or tribunal an opportunity to correct any misapprehension, or to take the view that it should not continue to deal with the case. Whether an objection has been taken must depend on the particular circumstances of a case. In determining whether an objection has been taken, it is legitimate to bear in mind the factors to which Kirby P (as his Honour then was) and Callinan J referred.
36 It is therefore necessary to examine the circumstances of the hearing by the DAC. The applicant was represented by counsel. Early in the hearing, in the course of an opening by counsel who appeared, in effect, for Mr Hackett to seek to uphold his decisions, the question of the folder of documents supplied prior to the hearing and its receipt by the DAC arose. As I have said, the chairman announced that the committee was aware of the nature of the charges and had "read the statements of evidence, if that's what they're called." Counsel for the applicant then said:
"Can I raise an issue just in relation to that point? I don't doubt the propriety of this Committee and the ability of this Committee to consider these matters properly, but I'm gravely concerned by the fact that the Committee has actually - the representation, Mr Friedman, that you just made. Read this material, read all the material I think - well, read the statements I think you said. It will become readily apparent that there is a plethora of highly irrelevant loaded and prejudicial material contained in these statements because we are here today in relation to two charges and this - I don't want to open, but my opening pretty much says this. There is (sic) two charges and it's a question of relevance and probative value.
I've read this material closely and carefully and it will be no news to the Committee to know that there are five other matters that have been dealt with by the inquiry. And those five other matters are a subject of an appeal in a different place, not before this Committee. And what I am gravely concerned by is the fact that the Committee's collective minds are somewhat poisoned by the highly prejudicial material that's contained in this - I don't know if you call it a brief or just the appeal book. Let's call it the appeal book. It is a matter of great concern because in the first instance so much of it, in fact maybe as much as 95 per cent is simply not relevant to agitating the appeals in relation to the Castlemaine incident, Charge B and the Ms Cavanagh incident, Charge G.
That's what's relevant here today. Any evidence that deals with that in the statements and I've looked through and I've marked it out is most probably probative, but most of the other material, with the greatest respect, is highly prejudicial and just not relevant."
37 In response to this, the chairman reassured counsel for the applicant that the DAC's mind was not poisoned and that it would give whatever weight was appropriate to the material contained in the documents and was mindful that only matters relevant to the charges would be used by the DAC in reaching its decision in the matter. Counsel for the applicant made it clear that he was not attacking the DAC, that he was instructed to take the issue and that it was proper of him to raise the issue.
38 It is plain that counsel for the applicant was at pains not to alienate the DAC. This was no doubt wise, given that the DAC was to deliberate upon his client's guilt or innocence in respect of the two charges the subject of the appeals and to deal with any question of penalty if it was satisfied of guilt. Whilst counsel for the applicant expressed grave concern that the DAC's collective mind might have been somewhat poisoned, he prefaced what would otherwise have amounted to an objection to the members of the DAC continuing to hear the appeal with a disclaimer, which made it clear that the applicant accepted that the DAC could and would act properly. Had he not included this disclaimer, I should have concluded that he had objected. In my view, however, the result was that he protested, but he did not object. The disclaimer amounted to a waiver of any objection to the DAC continuing to hear the matter, based on its receipt of material prior to the hearing. It absolved the DAC from considering whether it should decide to disqualify itself and allow the appeal to be heard by a reconstituted committee. It therefore amounted to a waiver of the applicant's right to challenge the decision of the DAC on the ground of apprehended bias arising from its prior receipt of the material in the folder of documents supplied prior to the hearing. Having thus waived his right to challenge, the applicant cannot revive it in this Court. He cannot succeed in this application on the ground of denial of natural justice by reason of apprehended bias.
39 That was not the end of the story in relation to the folder of documents, however. Towards the end of the first day of the hearing, counsel for Mr Hackett attempted to tender the whole of the folder. This was despite having admitted in the morning that it contained some material which was not relevant. Counsel for the applicant objected to the tender. His objection was put with a degree of forcefulness and was based primarily on relevance. The DAC accepted the tender of the whole folder. Counsel for Mr Hackett then attempted to tender the report from the Brighton Psychology Centre and the report of the consultant psychiatrist. Again, counsel for the applicant objected. After hearing argument, the DAC rejected the tender of these two documents. In doing so, it recognised the obvious point that the two reports were irrelevant to the task before it.
40 That left the DAC in the position that, on the first day of a four day hearing, it received into evidence a number of documents containing irrelevant and prejudicial information concerning the applicant. Again, counsel for the second respondent urged upon me that the DAC was chaired by an experienced lawyer, capable of sifting the relevant from the irrelevant and disregarding the irrelevant, and capable of attaching little or no weight to material which was not probative on any issue but was highly prejudicial. Again, it must be remembered that the chairman was only one of three members of the DAC and that the other two members may have lacked the training or experience to sift evidence.
41 Of greater importance, however, is what the DAC actually did. In the course of its reasons for decision, it said:
"In reaching its decision the Committee takes into account documents tendered by the parties together with oral and written submissions and evidence given at the hearing. In relation to Charge 1 the Committee agrees that, in the absence of independent or corroborating evidence, it is required to accept either the evidence of the appellant or Ms O'Brien. On balance, the Committee prefers her evidence to that of the appellant. In considering the relative merits of each version of events, the Committee notes the submissions by Mr Harrington there were some inconsistencies in the evidence given by Ms O'Brien. The Committee finds that there was no reason for her to invent her evidence, as she had nothing to gain. Similarly, the Committee finds her to be a more credible witness than the appellant, both in demeanour whilst giving evidence, and the plausibility of the account of the Castlemaine trip."