32 Kirby J, although dissenting in the result, said, at [115], that the law stated in Ebner must be applied in Australian courts. His Honour continued:
" Although stated in the context of the disqualification for bias of judicial officers, it is obvious that (statute apart) no different or at least no stricter rule would be applied to ministers and other public officials ."
33 Kirby J said, at [125], that where the powers of administrative decision-making have been reposed by Parliament in a minister, the normal implication would be that the legislature conferring the powers expected and intended them to be exercised by observing the requirements of procedural fairness, including the avoidance of disqualifying (actual or imputed) bias.
34 Kirby J referred to Jia Legeng, in which he expressed the opinion "which I still hold" that it is "quite wrong to suggest that, because the decision-maker is a minister, necessarily a politician and an elected official, he or she is exempt from the requirements of natural justice, or enjoys an immunity from disqualification for imputed bias" at [129]. His Honour continued:
" This must be so because, in every case, the minister must be able, if challenged, to demonstrate that he or she has exercised the statutory powers in question 'by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power ' [ referring to Jia Legeng at [139] 550]."
35 Kirby J stated, at [132], that the test for apprehended bias looking at the decision of the Minister is whether a reasonable member of the public might conclude that there is a possibility that the decision could have been affected by the earlier participation in it of officers who, personally or through their immediate families, had undisclosed interests of which they were aware and these interests would be advanced if the Minister accepted the departmental recommendation (citing Jia Legeng at [133] - [135] - the emphasis is his Honour's).
36 In this Court, I held in Williams v Director General of the Department of Environment and Conservation [2004] NSWLEC 613 at [77] that the "two mights" test for apprehended bias applies to decisions of the Director-General exercising his power under the National Parks and Wildlife Act 1974, s 87 and s 90, to allow the collection and destruction of Aboriginal objects.
37 Also in this Court, Biscoe J applied the "two mights" test in relation to decision-making by a local government council in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No. 2) at [110]. His Honour also held at [113] that the test in Australia for apprehension of bias is also unitary: "It is the same for administrative decision-makers as for judicial decision-makers, although its content may often be different" (referring to Hot Holdings Pty Ltd v Creasy at [70] and Laws v Australian Broadcasting Tribunal at 90).
38 Biscoe J noted at [115] that it has been said that the application of the principle of procedural fairness or natural justice in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making (referring to Ebner at [4] and Jia Legeng at [99] inter alia). His Honour went on to hold at [120] that if a council as a whole is affected by the appearance of prejudgment it will be disqualified from considering a matter, subject to the possible application of the doctrine of necessity; but the content of the apprehended bias test in the case of a local council should take into account that councillors, unlike judicial officers, are elected individuals with political ties who are expected to support particular views as to what is in the best interest of the community (at [121]).
39 Biscoe J referred at [124] - [133] to cases of decision-making by local government councils in other jurisdictions including, relevantly, Lower Hutt City Council v Bank [1974] 1 NZLR 545. In that case, the Lower Hutt City Corporation entered into an agreement to lease land to a developer. Included in the contract was an undertaking on the part of the Council to take all steps necessary to stop certain streets on the land. The undertaking also stated: "If the corporation is unable to stop the said portions of the said streets or either of them by virtue of a contrary decision of a Magistrate's Court this agreement shall be null and void and of no effect". The statutory procedure for the stopping of streets required the Council to give notice of its proposal for the streets to be stopped. If there were objections, the Council was required to inquire into and dispose of the objections, after which it might reaffirm its decision to stop the streets. An appeal lay to a magistrates court. One of the objectors moved for a writ of prohibition to prevent the Council from proceeding on the ground that there was a real likelihood that it would feel constrained to disallow the objections. The Court of Appeal affirmed the decision of Wild CJ to grant a writ of prohibition. McCarthy P, delivering the judgment of the Court of Appeal, said, at 548, that there was no longer a clear-cut distinction between administrative functions, on the one hand, and judicial functions, on the other. McCarthy P continued (at 550):
" We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals. As to the necessary appearance of impartiality, we think it must follow that if a public authority exhibits that it has undertaken in advance to exercise the power and duty expressly entrusted to it by the Legislature in a specific way which appears to obstruct the fair consideration and disposal of public rights, prohibition should normally issue ."
40 McCarthy P dismissed the question of whether the contractual obligation is enforceable or not in the following statement (at 550-551):
" What we are concerned with is, as we have stated earlier, the related principle that when a public authority by contract purports to bind itself in such a way that it appears to right-thinking people that the authority is no longer able to discharge its statutory duty with fairness, the Courts will intervene to prevent it purporting to perform that duty. In the application of that principle it seems to us not to matter whether the contractual obligation is enforceable or not, so long as it can fairly be said that the obligation appears to be exercising, in fact, a restraint on the freedom of the council to discharge its duty in the way the Legislature intended."
41 In McGovern v Ku-ring-gai Council, a case which is binding on me, the Court of Appeal considered the test for reasonable apprehension of bias by a council in its decision-making functions in relation to development applications. The second respondent, Mrs Allan, lodged a development application with the Council for proposed alterations and additions to her property. The appellants, the McGoverns, were neighbours who objected to the development application. Emails after the lodgement of the development application between Mrs Allan's husband and two councillors showed that they supported Mrs Allan's development application. The Council granted its consent to the development application. The McGoverns then challenged the Council's determination to grant consent to the application.
42 Spigelman CJ accepted, at [14], the Australian test for apprehended bias as expressed in terms of "two mights", but went on, at [15], to say that the test for prejudgment in Australian law is that identified by the Supreme Court of Canada in Old St Boniface Residents' Association Inc v City of Winnipeg [1990] 3 SCR 1170: the decision-maker must be "capable of being persuaded". The Chief Justice observed that a similar approach has been adopted in Australia in prejudgment issues, referring to the judgment of Gleeson CJ and Gummow J in Jia Legeng at [71] and [105] - whether the decision-maker "is open to persuasion" or, at [72] - whether "the conclusion already formed [is] capable of alteration whatever evidence or arguments may be presented". The Chief Justice held, at [23], that the "open to persuasion" test is an appropriate formulation for bias by prejudgment, to which the dual "might" test of apprehended bias must be applied.
43 Basten JA (with whose reasons Campbell JA agreed), accepted, at [72], that there was no dispute that the general approach required to be applied was the "two mights" test. The important question in that case, as his Honour noted at [75], was "how the test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions including the broadly political (see Local Government Act 1993 (NSW), s 8) and those of an administrative decision-maker granting authority for specific developments, in accordance with statutory criteria, as in the present case". Importantly for the purpose of the present case, his Honour continued:
" As the judgments of the High Court in Jia Legeng demonstrate, quite different standards will operate in relation to ministerial decision-making because of the need to take into account the particular role and functions of the decision-maker: … [citations omitted] "
44 In relation to the conferring of a power on a minister, Basten JA referred, at [76], to the judgment of Hayne J in Jia Legeng, at [187], in which the following statement is, it seems to me, of particular significance for the purposes of the present case:
" It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker ."
45 Basten JA observed (at [110]):
" The use of the word "might" in both limbs of the test connotes the concept of a real chance or a realistic possibility, falling short of a probability: see Ebner at [37] (Gleeson CJ, McHugh, Gummow and Hayne JJ)."