25 An additional point I would make is that the Nowingi panel is intended to be an expert body. The recent decision of the United Kingdom House of Lords in Gillies v Secretary of State for Work and Pensions[33] is helpful in understanding the application of an apprehension of bias principle in the context of an expert tribunal. In that case it was alleged that there was a reasonable apprehension that a medical member of a disability appeal tribunal was biased. The apprehension of bias test applied in the United Kingdom differs subtly from the test applied in Australia, but that does not affect the significance of the case. In Gillies the appellant was concerned that the medical member of the panel also had an on-going relationship with the agency responsible for the payment of benefits, as she was also an expert adviser to that agency. But Lord Hope of Craighead, who delivered the principal judgment, said:

A fair minded observer who had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent judgment on medical issues lay at the heart of her relationship with the Agency. He would also appreciate that she was just as capable of exercising those qualities when sitting as the medical member of the appeal tribunal.[34]

The fact is that the bringing of experience to bear when examining evidence and reaching a decision upon it has nothing whatever to do with bias.[35]

Thus when a claim is made that a member of an expert tribunal or panel is biased solely because the member has previously advised a party to the proceeding, or was in an advising relationship with that party, there will be no legitimate basis for an apprehension of bias if that previous advice, or the advising relationship, was given or based upon a professional relationship in which the adviser was expected to exercise independent judgment.

26 In support of its application, the council relied upon a number of grounds. It is convenient to deal with these separately although, in the final analysis, it is also necessary to consider them cumulatively.

27 The council submitted that there was a history of close association between Dr Russell and Victorian Labor governments. It said that this close association, particularly when taken in the context of other facts, meant that a fair minded lay observer might reasonably apprehend that Dr Russell might not bring an impartial mind in discharging his duties as a panel member in relation to the Nowingi proposal. In order to deal with this submission it is necessary to set out, and make findings on, certain background issues involving Dr Russell.

28 Dr Russell holds several degrees: a Bachelor of Arts, with Honours, a Bachelor of Economics, a Diploma of Architecture and a Doctorate of Philosophy.

29 Dr Russell is currently the managing director of his own consulting company. He also holds a number of posts as an adjunct professor or visiting professor at universities. He holds current appointments as a member of the board of the Northern Health Corporation (a government body), the Public Records Advisory Council (a statutory advisory body) and the Best Value Commission (a government body).

30 Dr Russell has had 38 years experience in the public sector or working in close connection with the public sector. He was Secretary of the Department of Minerals and Energy in the 1980s and was subsequently Director General of Property and Services. He has sat on the board of various Victorian statutory authorities, including the State Electricity Commission of Victoria. In recent years Dr Russell has been involved in advising the Victorian Government in relation to the review of Victoria's ports, the organisation of public transport administration, aspects of water policy and local government planning issues. It is clear, and I find, that Dr Russell is both a person of considerable qualification and experience and a person in whom members of the State Government have confidence as a wise adviser.

Observations about Dr Russell's qualifications and experience

31 It has not been suggested that Dr Russell has attained his position as a regular adviser of Labor governments by reason only of political skills, such as skills in organising numbers for preselection contests or work in intra-party (or even intra-factional) machinations. Dr Russell is very highly qualified - both academically and by experience - in public administration and public policy.

32 Persons are only likely to have extensive experience in public policy if they have had extensive associations with governments. Fair minded and informed persons know this. Hence a fair minded person would not reasonably apprehend that a person, experienced in advising on public policy questions, might not bring an impartial mind if asked to advise on a proposal that involves public policy issues, simply because they had advised governments on previous occasions. On the contrary: the fair minded person would be likely to be comforted by knowing that the relevant adviser was a person of intellect and experience in relation to public policy questions.

Specific contentions concerning Dr Russell's associations

33 In support of its application, the council referred to a number of specific matters. One of these was the appointment of Dr Russell as the head of an Audit Review panel to examine major contracts entered into by the Kennett Government. Mr C J Canavan QC, who appeared for the council, characterised the role of this panel of doing a "hatchet job" on the Liberal Government between 1992 and 1999. In support of this submission Mr Canavan referred to a speech made by Ms Asher, the Member for Brighton, on 16 December 1999 which was critical of Dr Russell's appointment. In this speech Ms Asher said of Dr Russell:

He was the darling of the Labor Party during the Cain/Kirner era. When the Labor Party wanted a job done it turned to Bill Russell.

The council also referred to a subsequent speech of Ms Asher, made on 31 May 2000, in which she described Mr Russell as "a real mate" of the Labor Party and "a Labor hack".

34 I make two observations about Ms Asher' comments. First, these comments are at odds with a more cerebral speech delivered by the shadow Treasurer, Mr Robert Clark MP, on 26 February 2002, in which he described the Russell Report as "a reasonable assessment of the major PPP and privatisation contracts of the Kennett Government" and containing recommendations that "in general terms, were quite sound". Second, I observe that political attacks often reveal more about the attacker than the person being attacked. Political attacks are often made for defensive purposes: for example, to attempt to undermine (in advance) a report that has been commissioned that might be critical of particular political decisions. Far too often politicians play the man (or the woman). I cannot accept that the content of Ms Asher's political attack ought be taken to reveal a truth or create an apprehension. On the contrary, all it reveals is that it was politically convenient for such an attack to be made at that time.

35 The council also relied upon other matters: that Dr Russell had been engaged by the government to head a review of port reform in Victoria; that Dr Russell had been engaged by the Government to chair a body known as the Best Value Commission; that Dr Russell had been engaged by the government to head the Consumer Utilities Advocacy Centre; and that Dr Russell had advised the government at a high level in relation to water reform. These appointments suggest that Dr Russell is an able adviser, with a broad and deep understanding of public policy questions. It is also true, as the council submitted, that these appointments also suggest that Dr Russell has the confidence of the State Government as an adviser. But it is a huge step to infer, as the council argues, that this confidence means that Dr Russell would be other than impartial in proffering his advice. An analogy is appropriate. A patient is likely to have confidence in his or her doctor if the doctor tells it as it is. But no patient is likely to have confidence in a doctor, particularly over the long term, if all the doctor says is what the patient wants to hear.

36 Indeed, based upon information put before the tribunal on behalf of the Minister, it is clear that Dr Russell does not always give advice that the government may wish to hear. Evidence was placed before the tribunal that Dr Russell has criticised the government as being excessively "freeway friendly". Dr Russell has also undertaken a study in relation to metropolitan transport that is critical of government. Moreover, in the case of his recommendations in relation to port reform, it was reported that the Department of Treasury and Finance "bitterly opposed his report and its recommendation". Dr Russell's work has been regularly adopted by State Government critic, Kenneth Davidson, in his column in "The Age" newspaper. Thus a full understanding of Dr Russell's associations does not support any notion that he is a "yes man" to governments or to Labor governments.

37 The council's submission seems to rely upon the notion that government - or, at least, an ALP government - is a monolith. This is a misconception. In every shade of government, agencies and departments jockey for position, sometimes bitterly. The favourite adviser of one department may be the sworn enemy of another. This diversity is also true of political parties, including the Australian Labor Party. Anyone who doubts this proposition should read The Latham Diaries,[36] particularly Appendix 1 which sets out the members of the federal caucus in mid-2003 by reference to faction and sub-faction.[37]

38 In the case of a government project it is inevitable that the government will be both the proponent and the assessor. It will not always be practicable to keep these functions apart. In this case the primary assessor is the Minister for Planning. The panel is to report to the Minister for Planning. It is the delegate of this Minister who has appointed Dr Russell. It is this Minister who must proffer advice to government in relation to environmental effects. If a relevant connection exists between Dr Russell and the State Government this can be understood just as much to be a connection with the assessor as with the proponent.

39 In my opinion, the council's submission is also unduly suspicious of the integrity of those who engage in public life. The submission seems to imply that loyalty to a government or party is likely to override individual judgment and integrity. Whilst this may sometimes be true of caucus members in parliamentary votes, it is quite unlikely in the case of an independent, professional and qualified adviser. It is important that public life be attractive to highly qualified and skilled persons. The application of the apprehension of bias principle ought avoid driving good people away from public life: as this is itself inimical to the public interest.

40 For the reasons I have set out, I find that a fair minded person, informed about Dr Russell's associations and the nature of a panel hearing pursuant to the Planning and Environment Act, would not reasonably apprehend that Dr Russell might not bring an impartial mind to his task as a panel member.

41 Ordinarily the task of organising panel hearings falls to the Chief Panel Member of PPV. The current occupant of this position is Ms Kathy Mitchell, an experienced town planner and panel member. Ms Mitchell has the responsibility for the overall management and supervision of PPV within the Department of Sustainability and Environment.

42 The position of Chief Panel Member has no statutory basis. When it comes to the appointment of panel members, I was told that it was the usual practice that the Chief Panel Member makes a recommendation (or nomination) which is then considered and implemented by a Deputy Secretary of the Department, who the holds delegated power from the Minister in relation to the appointment of panels pursuant to section 153 of the Act. But this practice does not prevent (and could not prevent) the Minister or the delegate from choosing to adopt a course different from that recommended by the Chief Panel Member. Further, if a recommendation is not accepted, it is not appropriate to characterise this as the Minister (or his delegate) "over-riding" the Chief Panel Member. The Parliament has given the power to appoint panels to the Minister, not the Chief Panel Member.

43 Some time in September and October 2005 Ms Mitchell commenced to make arrangements for the appointment of a panel in relation to the Nowingi proposal. By 14 October 2005 she had determined that an appropriate panel should consist of Cathie McRobert (chair), Robin Saunders, Graeme David and Bob Evans. She wrote to the secretariat of PPV on 14 October 2005 asking that the process of preparing documentation commence in relation to the appointment of these persons. On 14 November 2005 it would appear that there was some slight change in arrangements, no doubt due to questions of availability. On this date Ms Mitchell advised the Deputy Secretary of the department that the panel would be drawn from the following: Cathie McRobert (chair), Robin Saunders, Graeme David and Gordon Anderson. It is to be noted that Cathie McRobert is a full-time member of PPV and has the designation of a Senior Panel Member.

44 On 22 November 2005 the Deputy Secretary, Built Environment, of the Department, Ms Genevieve Overell, sent an email to Ms Mitchell confirming conversations that Ms Overell had had concerning the Nowingi Panel. In this email Ms Overell said:

LRN [which was a reference to the Secretary of the Department, Mr Lyndsay Nielson] has requested that we ensure that the proposed panel comprise experts of sufficient standing and breadth to fully address the gravity and content of issues raised by this matter.

The email identified three names put forward by Mr Nielson (none of whom were Dr Russell). The email also requested Ms Mitchell and another officer to prepare a list of potential candidates, specifying their respective skill sets, for consideration by Mr Neilson.

45 It would appear that, from the procedure which I have described, the name of Dr Bill Russell emerged. As a result, on 23 December 2005, his name was added to the list of sessional panel members.

46 It was acknowledged within the department that Dr Russell had excellent public policy credentials and considerable experience. However the idea of appointing Dr Russell was not without contention, particularly as Dr Russell was not then a person whose name was on the register of persons for appointment to panels. Indeed, Ms McRobert twice indicated to Ms Mitchell that she had real concerns about a departure from the normal panel appointment processes. Further, Ms Mitchell expressed some private frustration (at least she would have thought it was private at the time she expressed it) by suggesting in an email that it seemed that others were doing her job for her.

47 Because the Nowingi proposal was to be subject of an inquiry under section 9 of the Environment Effects Act 1978 (as well as the subject of a panel under the Planning and Environment Act 1987) it was necessary for the Governor in Council to grant approval to the Minister for Planning to appoint persons to hold an inquiry into the environmental effects of the proposal.[38] Possibly for this reason the question of the appointment of a panel (under both the Environment Effects Act and the Planning and Environment Act) was the subject of a submission to Cabinet. The Cabinet submission produced to the tribunal appears to be a draft document but, in the absence of other evidence and having regard to the submissions of the parties, I infer that a document in substantially the same form was submitted to Cabinet. It would appear that Cabinet was told of the persons who were to be appointed to the panel and were provided with a brief summary of their qualifications. The Cabinet submission noted:

The Minister requested the Chief Panel Member to identify suitably qualified and experienced persons for appointment to this Inquiry/Panel. The Chief Panel Member identified a number of persons from the pool of panellists maintained by Planning Panels Victoria (PPV) for panels established under the P&E Act. Due to the complexity of the proposal and the large number of submissions that have been received potential members were considered from outside the PPV pool.

In selecting the Inquiry/Panel it is considered that all members must have the following experience and abilities in order to provide a high level capacity for critical analysis of the effects of the proposal:

• prior experience as members of an independent panel inquiry, including the appointment of a highly experienced panel inquiry chairperson;

• high level ability to accurately interpret the implications of the proposal with respect to relevant legislation and policy;

• high level understanding of information requirements for government decision making;

• high level understanding of performance based approaches for environmental management;

• high level ability to judge the validity of contending viewpoints and analyses of potential effects; and

• ability to formulate balanced and robust conclusions and recommendations.

Further, a mix of the following skills and expertise must be represented on the EES Inquiry:

• expertise in hydrology;

• expertise in geology;

• expertise in biodiversity;

• expertise in transportation;

• expertise in listening to and responding to "community" issues.

48 It would appear that on 6 February 2006 Cabinet agreed with the Cabinet submission and made the decision that a panel, with Dr Russell as chairperson, be appointed. Consequently on 9 February 2006 the Minister's delegate appointed the panel under the Planning and Environment Act; on 14 February 2006 the Governor in Council gave approval to the Minister for Planning to appoint nominated persons to a panel under the Environment Effects Act; and, on that day, the Minister appointed those persons to conduct an inquiry under that Act.

49 It may be thought desirable that PPV be an entity independent of the executive branch of government and that the Chief Panel Member have statutory authority to appoint members of a panel to consider a particular proposal. If that was the case, then the conduct of the Secretary of the department would have been intolerable. But PPV is not independent from the Department of Sustainability and Environment; it is part of that department. And, significantly, the task of appointing persons to be members of a panel to consider a particular proposal is a task that the Parliament has vested in the Minister for Planning, not the Chief Panel Member. Although it is true that the Minister for Planning may delegate this power (and has delegated this power), it has always remained the case that the Minister has the right to appoint a panel himself.

50 In my opinion, a fair minded lay observer, reasonably informed about the facts and the substance of the law, would not reasonably apprehend that a person might not bring an impartial mind to their panel duties because that person was not a person recommended by the Chief Panel Member. The fair minded and informed person would understand that a panel hearing is essentially an administrative and policy proceeding; and they would understand that such a proceeding was not a judicial proceeding. This being so, the mode of Dr Russell's appointment would not create a reasonable apprehension that he might not bring an impartial mind to his duties as a panel member.

51 At the panel directions hearing held on 27 March 2006 Dr Russell introduced himself and his colleagues. He said of himself that he was an adjunct professor at certain universities, that his expertise was in public policy and public management, and that he had conducted a number of reviews for different levels of government over the last two decades. Senior counsel for the council, Mr Canavan, then told the panel that his client had concerns in relation to the fairness of the appointment of Dr Russell. Mr Canavan pointed to a number of matters - many of which have been repeated in the present application to the tribunal - and in particular identified what he said was a "close relationship" between Dr Russell and successive ALP State governments. Mr Canavan said that it was inconceivable that PPV did not nominate a permanent panel member to chair the hearing; and that the only inference that could be drawn was that the State Government had overridden any PPV nomination.

52 At the conclusion of Mr Canavan's initial submissions Dr Russell called upon Mr Dreyfus, who was acting for the Minister for Major Projects, to make submissions. Mr Dreyfus' submissions were to the effect that there was no basis for the council's submissions.

53 From the way the council submission was put to the panel, it was unclear as to whether or not Mr Canavan was actually making an application that Dr Russell disqualify himself. In any event Dr Russell said he would reflect on the matters raised and respond within the next two weeks. At this point Mr Canavan submitted that it was necessary for Dr Russell to make a decision sooner than that as it would impact upon whether the hearings could commence on 26 April 2006. Hence, after a lunch break, Mr Canavan submitted that Dr Russell should immediately disqualify himself as the chairperson and as a member of the panel.

54 Dr Russell responded to this application, not immediately, but in writing on 3 April 2006. In that written response Dr Russell stated that he could not reasonably be viewed as being so "close to government" that it might impair his capacity to act independently of the present government or might lead to bias in the exercise of his judgment as a panel member. He pointed out that he had had an active career in public service and in that role had advised governments of different political persuasions. Dr Russell emphasised a number of roles he had played in which he had offered advice to governments other than ALP State governments.

55 In his submission to the tribunal Mr Canavan argued that the way in which Dr Russell dealt with the bias application also supports an apprehension of bias. I do not agree.

56 First, I observe that it is often difficult for persons inexperienced in the cut and thrust of oral hearings to quickly and adeptly respond to submissions made by experienced and forceful counsel. In these circumstances it is perfectly understandable if an immediate oral response might be described as clumsy. Second, the emphasis that Dr Russell placed in his written response to his experience in relation to non-ALP governments was perfectly understandable, as it was responding to the implied suggestion contained in Mr Canavan's submission that Dr Russell only, or at least principally, was an ALP government adviser. Given its context it was neither misleading nor inappropriate. Third, when an application is made that a person disqualify themselves on the ground of apprehension of bias and that application is rejected, it is legitimate for that person to give their reasons, even forcefully; although tactful reasons will usually be better advised. Certainly there is nothing in the reasons in this case that supports the council's application.

57 Mr Canavan also contended that there was an apprehension of bias by reason of the manner in which the government had resisted the application that Dr Russell disqualify himself. Mr Canavan pointed to an alleged failure of the Department of Sustainability and Environment to make full disclosure of documents pursuant to the Freedom of Information Act. He also relied upon the manner in which Mr Dreyfus made submissions at the panel hearing. In my view, neither of these two specified matters - or indeed any of the matters relied upon more generally in respect of government conduct - can advance the case in relation to apprehension of bias on the part of Dr Russell.

58 There are many possible explanations as to why documents may not have been disclosed pursuant to a freedom of information request (if this is what actually occurred). Certainly I have no reason to doubt that all relevant documents were discovered, and were available at the hearing of the present application, by reason of a summons which had been directed at the Chief Panel Member.

59 Although it is arguable that some of the submissions made by Mr Dreyfus at the panel hearing did not fully state the applicable legal principles in relation to apprehension of bias, it is drawing a very long bow to suggest that this involved some deliberate attempt to improperly retain Dr Russell on the panel. As I understand it, Mr Dreyfus had no warning that a submission would be made in respect of Dr Russell. In the finest traditions of the Bar, Mr Dreyfus, no doubt, responded as best he could. If he did misconceive the nature of the application or, as suggested, did not correctly identify the legal principles in his submission, this is irrelevant to the present application: it has no logical connection to the question of whether Dr Russell should be apprehended to be biased.

60 It has been convenient to deal with the various bases upon which the application is made separately. However it is also necessary to consider whether these contentions, taken cumulatively, make the case being advanced by the council. My conclusion is that no such case is made. Hence the reference is dismissed.

[1] I prefer to use the designation "Dr" Russell. Dr Russell also uses the designation "Professor" Russell. (He is not a full-time professor, but an adjunct professor and a visiting professor.)

[2] See Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029.

[3] See Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary (2005), page 513_._

[4] Counsel for the Minister submitted that the panel is not bound by the rules of natural justice in the performance of its functions other than the hearing of submissions. This is a difficult and complex question, as an obligation to fairly hear submissions tends to imply an obligation to fairly consider the submissions that have been heard. For the purpose of this decision I have assumed that the natural justice obligation - whatever that is - applies to all of the panel's duties.

[5] [2000] HCA 63, (2001) 205 CLR 337.

[6] [2000] HCA 63, (2001) 205 CLR 337, at [6].

[7] See Russell v Duke of Norfolk [1949] 1 All ER 109, at 118, per Tucker LJ; National Companies and Securities Commission v News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296, at 311-312; City of St Kilda v Evindon Pty Ltd [1990] VicRp 66; [1990] VR 762, at 775.

[8] [2000] HCA 63, (2001) 205 CLR 337, at [4].

[9] See Buttigieg v Minister for Planning [2004] VCAT 868 and Commonwealth of Australia v Wood [2006] FCA 60. The situation may be different in relation to Commonwealth tribunals having regard to constitutional provisions that affect Commonwealth, but not State, tribunals.

[10] City of St Kilda v Evindon Pty Ltd [1990] VicRp 66; [1990] VR 762.

[11] Rajendran v Tonkin [2002] VSC 585, (2002) 19 VAR 448.

[12] (2001) 205 CLR 507.

[13] (2001) 205 CLR 507, at 532.

[14] (2001) 205 CLR 507, at 538.

[15] (2001) 205 CLR 507, at 562.

[16] (2001) 205 CLR 507, at 563.

[17] (2001) 205 CLR 507, at 564]. See also R v Commonwealth Conciliation and Arbitration Commissioner; ex parte Angliss Group (1969) 122 CLR 546, at 553.

[18] The procedure is outlined in more detail in East Melbourne Group Inc v Minister for Planning [2005] VSC 242.

[19] Planning and Environment Act 1987, section 22.

[20] Planning and Environment Act 1987, section 23(1).

[21] Planning and Environment Act 1987, section 24.

[22] Planning and Environment Act 1987, section 25.

[23] Planning and Environment Act 1987, section 26.

[24] Planning and Environment Act 1987, section 27.

[25] Planning and Environment Act 1987, section 35.

[26] Planning and Environment Act 1987, section 11.

[27] Planning and Environment Act 1987, section 156.

[28] Planning and Environment Act 1987, section 157. Although the operation of this section was the subject of submissions, it is unnecessary to decide how the quorum provisions intersect with a panel's natural justice obligation.

[29] Planning and Environment Act 1987, section 158.

[30] Planning and Environment Act 1987, sections 159-161.

[31] Planning and Environment Act 1987, section 167.

[32] This observation concerns the system as it is; it is not an endorsement of the existing institutional arrangements.

[33] [2006] UKHL 2.

[34] [2006] UKHL 2 at [18].

[35] [2006] UKHL 2 at [23].

[36] Mark Latham, The Latham Diaries, Melbourne University Press, 2005.

[37] This appendix is titled Who's Who in the Factional Zoo (mid-2003).

[38] See the requirements of section 9(1) of the Environment Effects Act 1978. It would also appear that the inquiry was designed to fulfil statutory requirements under the Environment Protection Act 1970 and the Environment Protection and Biodiversity Conservation Act 1999 (Cth), but nothing turns on this.