I note that Ms Mason is known to me in a professional capacity, Ms Mason being the chairperson of the panel. Ms Mason and I have no ongoing relationship, nor was our relationship a personal one; it being a business or professional relationship. I don't apprehend that that causes an issue, but I raise it for, Mr Miller and Ms Frankcombe [practitioner for the respondent], your benefit.

3. After the applicant expressed concerns and I explained the process for applying for recusal, I went on to say:

I am no longer a member of the Code of Conduct panel and I have had no communications with Ms Mason since I was a member of the Code of Conduct panel... I was a member of the Code of Conduct panel for several years. Ms Mason was also a member of the panel. Throughout that time, Ms Mason and I on occasion sat together as members of the panel and communicated with each other regarding the same. But as I've indicated, I'm no longer a member of the panel. I've not been a member of the panel for, my recollection is, the end of last year or the very start of this year... And I've not spoken to Ms Mason since then... That's the only basis of my relationship with Ms Mason. Our only interactions were as members of the panel. I have not spoken to her since I resigned from the panel.

4. The applicant subsequently applied for me to recuse myself. He contends there to be a possibility of apprehended bias, whether conscious or unconscious, based on my prior working relationship with Ms Mason.
5. The respondent did not make any submissions. The Attorney-General made submissions as to the applicable principles but took as neutral position as to the application.
6. I have since checked my records. These confirm that I advised the Minister for Local Government of my resignation on 11 October 2024, effective from 1 January 2025.

1. I set out the test for apprehended bias in Seidenspinner v Startup (Recusal) [2024] TASCAT 154. I said, at [6]-[8]:

[6] Apprehended bias exists "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). > > [7] If apprehended bias is made out, I should recuse myself from further hearing of this matter. > > [8] The fair-minded lay observer is neither complacent nor unduly sensitive or suspicious: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [53]. He or she is well-informed: Johnson v Johnson at [53]. He or she "is not conceived of as a lawyer but a member of public served by the courts": Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [21].

2. There are two steps to establish apprehended bias. The first is to identify the particular relationship or circumstance giving rise to an apprehension of bias. The second is to establish a logical connection between that relationship or circumstance and "the feared deviation from the course of deciding the case on its merits": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [8]. "The question is one of possibility (real and not remote), not probability": Ebner at [7].
3. To apply that test, it is necessary to consider the nature of this appeal. It is an appeal under the LGA, s 28ZP, which provides:

28ZP. Review of investigating Panel decision > > If a person is aggrieved by the determination of a code of conduct complaint by the investigating Panel for the complaint on the ground that the Panel failed to comply with the rules of natural justice - > > (a) the person may apply to the Tasmanian Civil and Administrative Tribunal for a review of that determination on that ground; and > > (b) that determination is subject to administrative review under Schedule 4 of the Tasmanian Civil and Administrative Tribunal Act 2020.

4. Accordingly, the sole issue on appeal is whether the Panel, chaired by Ms Mason, failed to comply with the rules of natural justice (that is, that the Panel was procedurally unfair).

1. The relationship in question is my prior professional association with Ms Mason, the circumstances of which I have outlined above.
2. As I understand the applicant's case, he submits that there is a reasonable possibility that, whether consciously or unconsciously, I will be reluctant or less likely to find that the Panel was procedurally unfair. I infer that to be because my prior association with Ms Mason makes me reluctant to make such a finding, in part because such a finding may involve a degree of criticism or moral turpitude (in contrast to, for example, an unwitting error).
3. I commence with the cautionary words of Mason J (as he then was) in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide in their favour.

4. In Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, the Court said at 294 (emphasis added):

Once it is accepted that a judge should not automatically stand aside whenever he is requested to do so, it is inevitable that appellate courts, removed from the pressure of the possible need for an immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have the dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process...

5. Those observations apply equally to my sitting in judgment of the Panel's determination. Determining whether the Panel denied the applicant procedural fairness "does not involve any personal criticism... [i]t is simply an instance of the ordinary working of the appellate process".
6. As I have explained, the fair-minded lay observer is well-informed and not suspicious: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [53].
7. It is common for a judge to have to decide whether another judge on the same court was procedurally unfair. Jones v Tasmania [2020] TASCCA 15 is an example of that, albeit one in which the respondent conceded the denial of procedural fairness. It cannot be said that the mere fact that the judges are professional colleagues results in an apprehension of bias with respect to the appellate judge hearing an appeal.
8. I am not a judge, and I have not taken the judicial oath. But the principle remains. In fact, the logical connection between my association with Ms Mason and "the feared deviation" (Ebner at [8]) is even weaker here: Ms Mason and I were, but are no longer, colleagues.
9. I am not satisfied that there is a logical connection between my association with Ms Mason and a feared deviation from the course of deciding the appeal its merits. There is no real possibility that a fair-minded, well-informed, unsuspicious lay observer might reasonably apprehend that I might not bring an impartial mind. I make that finding notwithstanding the low threshold set by what is colloquially known as the 'double might' test for apprehended bias.

1. Apprehended bias is not made out. The application must be dismissed.