CLARITY AND COMPLEXITY IN THE BIAS RULE.

• Date: 01 December 2020
• Author: Groves, Matthew

CONTENTS I Introduction II Webb and Ebner: Objective Assessment of Bias Claims and Public Confidence III Just How Much Impartiality Does the Bias Rule Require? IV Impartiality and the Nature and Structure of an Administrative Process V The Fair-Minded and Informed Observer VI Irrelevant Material and Subconscious Bias VII Bias and the Materiality of an Error VIII Concluding Observations I INTRODUCTION

The rule against bias is one of the two constituent parts of natural justice. The other is the hearing rule. (1) The hearing and bias rules are complementary ones that require 'fairness and detachment' in government decision-making. (2) The rule against bias requires that judges and other public officials be impartial in their decision-making. The rule has been described to be of 'almost universal application', (3) which reflects the small number of officials or decisions that appear to be outside its scope. (4) The bias rule has a constitutional dimension in its application to courts and judges, (5) but it has long extended to other forms of government decision-making. The rule applies to jurors, (6) tribunal members, (7) and administrative officials. (8) It also applies to elected officials, such as government ministers and local councillors, in their capacity as public law decisionmakers. (9) The operation of the bias rule beyond the courts should 'recognise and accommodate' the many distinctions between judicial and other forms of decision-making. (10) There is no simple binary distinction between judicial and nonjudicial decision-making for these purposes, but instead a flexibility that enables the rule to adapt to the nature of the decision-maker and the circumstances of a case. (11)

Two bias cases have been particularly influential. The first was Webb v The Queen ('Webb'), which replaced subjective judicial assessment of bias claims with an objective test. Webb required that bias claims be determined by the conclusions that a fair-minded and reasonably informed observer might reach. (12) The second key bias case was Ebner v Official Trustee in Bankruptcy ('Ebner'), in which the High Court cast aside the longstanding rule of automatic disqualification for pecuniary interest and adopted a single test for all claims of apprehended bias. (13) That test requires claimants to first identify the source of the claimed bias and then articulate how that source might have the effect claimed. Ebners twofold test is viewed through the lens of Webb's objective and informed observer. (14) Bias claims succeed if a court finds that the observer might reasonably apprehend that the decision-maker might not be suitably impartial because of the claimed source of bias.

These key aspects of Webb and Ebner have continued to guide and divide the High Court. They have guided the Court because the central principles of both cases have never been seriously questioned. At the same time, however, judicial divisions of opinion continue within the High Court and between that Court and intermediate appellate courts about the principles arising from Webb and Ebner. (15) Why is that so? This article will argue that the clarity introduced by Webb and Ebner on some aspects of the bias rule diverted attention from those parts of the rule that remained uncertain. Those uncertainties mean that judges may agree about matters of principle yet easily disagree about their application. The article analyses the High Court's recent decision in CNY17 v Minister for Immigration and Border Protection ('CNY17 ') to explain how many of the guiding principles of the bias rule continue to divide courts. The article suggests that this potential level of difference in judicial assessments of bias claims is inevitable.

II WEBB AND EBNER: OBJECTIVE ASSESSMENT OF BIAS CLAIMS AND PUBLIC CONFIDENCE

The bias rule has a long history in the common law. (16) A cornerstone of the modern law governing bias is the statement by Lord He wart CJ that it 'is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'. (17) The notion that justice be 'seen' to be done, or that the 'appearance' of bias be studiously avoided, draws attention to the importance of public perception to the bias rule. That perception has long been linked to confidence. The bias rule has long been explained as ensuring public confidence in the administration of justice. (18) The bias rule long measured this question, which is tethered to public confidence, by reference to the subjective views of presiding judges. The House of Lords explained that any assessment of public perceptions, in the guise of an objective observer, were redundant because the court itself could act as the 'reasonable person' but with the added advantage of possessing knowledge about the case at hand, and legal issues more generally, which members of the public would not hold. (19)

Chief Justice Mason and McHugh J noted in Webb that this approach assumed that public confidence in the 'administration of justice will be maintained because the public will accept the conclusions of the judge'. (20) Their Honours thought it was 'more likely' that public confidence in the administration of justice would be maintained by a test 'that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question'. (21) Judicial use of a fictional member of the public is obviously an artificial process, (22) but it at least ensures that the judgments made in bias cases are no longer 'based purely upon the assessment by some judges of the capacity or performance of their colleagues'. (23) Chief Justice Mason and McHugh J made clear that a test focused on the view of a reasonable member of the public, who was reasonably informed of the circumstances, 'does not mean that the trial judge's opinions and findings are irrelevant'. (24) They explained that '[t]he fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings.' (25)

This acceptance that judicial opinions would remain very influential, sometimes even binding, upon the informed observer invites questions about the extent of change caused by use of the informed observer. Chief Justice Mason and McHugh J also accepted that use of the informed observer might not necessarily narrow the scope of disagreement in bias cases. That possibility arose because any judgment about a reasonable apprehension, which is the standard by which the informed observer determines bias claims, 'allows a margin for error in evaluating the facts as elicited'. (26) That margin of error, or difference of opinion, is inherent in the notion of reasonableness.

The role of the informed observer was strongly endorsed in Ebner, where the High Court set aside the longstanding rule of automatic disqualification for pecuniary interest in favour of a single test for all claims of apprehended bias. (27) This refashioned rule involved two steps applicable to all the different interests, influences and forms of conduct that could give rise to a claim of bias. (28) The first step required identification of the source of the claimed bias. (29) The second step required 'articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits'. (30) This explanation of how bias might arise was important because '[o]nly then can the reasonableness of the asserted apprehension of bias be assessed'. (31) Whether that point provides a distinct third step is considered later in this article.

The High Court made clear that the relevant issue was not the nature of any interest or influence, but its possible effect. The assessment of this issue was best done through a single 'general principle rather than a set of bright line rules which seek to distinguish between the indistinguishable, (32) as was previously done by a separate rule of automatic disqualification for pecuniary interest. Bright conceptual lines may be blunt instruments but they are at least easy to see. Ebner's rule was instead a single one, entirely dependent on the particular circumstances of each case. The bright lines of automatic disqualification were replaced with the haze of context. Ebner also made clear that its unified approach was of universal application. The two-step process would apply to all decision-makers but its application outside the courts 'must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making'. (33) The High Court did not explain how, or to what extent, principles fashioned for courts and judges should vary in other decision-making environments, though it added the important rider that 'few administrative decision-makers would enjoy the degree of independence and security of tenure which judges have. (34) The important question left open by those remarks is how the lesser level of independence of an official might affect judgments about bias. It is argued later in this article that the High Court has not yet confronted this issue.

Like most bias cases, Ebner was about apprehended rather than actual bias. The distinction carries important consequences. Actual bias requires a finding that the decision-maker was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented' (35) Any such conclusion is antithetical to fair and impartial decision-making, particularly in the exercise of judicial power. Accordingly, a finding of actual bias is a 'grave matter', which courts should 'not lightly' reach. (36) Claims of actual bias must also be 'distinctly made and clearly proved. (37) A further difficulty associated with actual bias arises from the very particular nature of its test, which is a subjective one about the actual...