Apprehended bias and the 2020 Agoraphobia Decision
50 While Ms Hutchinson's case was squarely based on actual bias, her grounds of review also referred to 'apparent bias'. That may raise a case of apprehended bias as well.
51 In the curial context, the rule as to apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [5], Gleeson CJ, Gaudron and Gummow JJ observed that:
… the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover - and on this the parties are in substantial agreement - regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned.
52 At [28] their Honours said:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
53 The test to be applied here, then, is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the matter before the delegate, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the delegate might not bring an impartial mind to the resolution of the question to be decided. This question is largely a factual one, which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20].
54 Applying that test to the situation here, however, presents conceptual difficulty. It is a test which is stated in forward looking terms; it is about whether bias is apprehended, not about whether it has actually occurred. Yet Ms Hutchinson's case relies on the reasons for the 2020 Agoraphobia Decision in the context of the material on her file, not on anything said or done by the delegate before making the decision. While the court may not be precluded from considering the decision itself as part of the matrix of facts relevant to whether an apprehension of bias could reasonably be formed, care must be taken not to invert the proper order of inquiry by first assuming the existence of a reasonable apprehension: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67]; MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; (2016) 70 AAR 22 at [44]-[45].
55 The conceptual difficulty becomes even more apparent when one considers the two steps necessary to apply the test identified in Ebner at [8]:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
56 In McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [113], Basten JA said:
Although the comment in Ebner was made in a case involving a possibly disqualifying interest, it has significance in a case of pre-judgment and, more particularly, in a case which does not involve judicial judgment. As already noted, one important aspect of the test of reasonable apprehension of bias is that it removes the inquiry from the actual process of decision-making. That this is a purpose of framing the test in terms of real possibilities was acknowledged by Deane J in Webb [v The Queen (1994) 181 CLR 41] (at 71).
57 This exposes the reality that, despite her passing reference to apparent bias, Ms Hutchinson's case is more aptly understood as one of actual bias. Her focus is entirely on the actual process of the delegate's reasoning. For example, she did not rely on any interest the delegate had in the outcome of the decision; the fact that he was an employee of Comcare, the body liable to pay any compensation, cannot be relevant as that is a feature of the decision-making process mandated by the SRC Act: s 60(3). She did not rely on anything he said or did leading up to the decision. She relied on the adverse nature of the decision itself, that is, the actual process of decision-making.
58 Nor did Ms Hutchinson point to any evidence that the delegate had pre-judged the outcome. While it may be logically possible to derive from reasons for a decision that has been made an inference that the decision-maker pre-judged before the decision itself, that logical step must be taken with care. When a decision-maker gives reasons for a decision after it has been made, the fact that he or she only describes matters that support the decision does not necessarily indicate bias. The reasons for decision will rarely be sufficient by themselves to establish an apprehension of bias, as adverse findings are an inevitable part of the expression of reasons: Hamor v Commonwealth of Australia [2020] FCA 1748 at [50] (Gleeson J). It will not usually be possible to identify a matter which might lead the decision-maker to decide a question other than on its legal and factual merits if all that one has to go on is the decision-maker's stated and determinative assessment of those legal and factual merits.
59 When the court assesses those matters here, all it has to go on are the reasons for decision, and the omitted material. The inferences it will make (or decide not to make) are likely to be precisely the same as those it makes in connection with the allegation of actual bias. To assess those very same matters against a criterion of reasonable apprehension of a possibility of bias may be to do what Deane J eschewed in Webb v The Queen (1994) 181 CLR 41 at 71, namely 'substituting, for the doctrine of disqualification by reason of an appearance of bias, a doctrine of disqualification for actual bias modified by the adoption of a new standard of proof (i.e. a real likelihood or possibility rather than probability in the sense of more likely than not)'.
60 Nevertheless, in Reece at [46] the Full Court observed that a reasonable apprehension of bias may arise by reason of the terminology employed in an administrative decision, and assessed the appeal before it on that basis. So I will proceed that way here. I will do so having regard to the need, pointed out in Reece at [45], for the allegation as to reasonable apprehension of bias to be firmly established (relying on Re JRL; Ex parte CJL (1986) 161 CLR 342). In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 375 ALR 47 at [19] Kiefel CJ and Gageler J (in dissent on the result but not on the principles) observed that the purpose, in the test (footnotes removed):
of combining the 'fair-mindedness' of the hypothetical lay observer with the 'reasonableness' of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the [decision-maker] falls to be determined from the perspective of a member of the public who is 'neither complacent nor unduly sensitive or suspicious'. Together they emphasise that 'the confidence with which the [decision-maker] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds'.
61 Also, in Reece, the Full Court relied on von Doussa J's observations about actual bias in SCAA (see [47] above) in the course of rejecting a ground of appeal based on apparent bias.
62 Having regard to those principles, I do not consider that Ms Hutchinson has established that a properly informed and fair minded lay person might reasonably apprehend that the delegate might not bring (or might not have brought) an impartial mind to the resolution of the question of whether Comcare was liable to compensate Ms Hutchinson for agoraphobia. The matters I have described above provide a ready explanation for why the delegate referred only to the report of Dr O'Daly and the 2018 reports of Dr Spear, and nothing in the factual context or the expression of the delegate's reasons suggests that his mind was closed to her claim before he decided that claim on the merits. The fact that he had formed a view, and chose in the statutory and factual context not to canvass everything on the file that was potentially relevant to that view, would not lead a fair minded person to reasonably apprehend that he might have been biased.