The recent High Court decision of Isbester v Knox City Council [2015] HCA 20 (Isbester) considered whether an administrative decision was ‘biased’ because a person who participated in the making process had been the informant in a related prosecution.

The case concerned a decision of Knox City Council (Council) under section 84P(1) of the Domestic Animals Act 1994 (Vic) (Act) to destroy a dog. The High Court unanimously held that the decision of Council to destroy the appellant’s dog be quashed because of the substantial involvement of Council’s Coordinator of Local Laws (Coordinator) in both the prosecution of the appellant and the decision as to the fate of the dog. It was determined that a reasonable apprehension of bias existed.

The decision

In 2012, the appellant was prosecuted for a number of offences under the Act. The Coordinator was the nominal informant in the prosecution and signed some of the charges. The Coordinator also directed Council employees to further investigate certain matters, spoke with one of the complainants and instructed Council’s solicitors to prosecute the charges.

In September 2013, the appellant pleaded guilty to a number of charges, including the charge that enlivened Council’s power under (what was then) s 84P(e) to destroy the dog.

Shortly after the guilty plea, the Coordinator advised the appellant that Council would convene a panel to hear and determine whether the dog should be destroyed. The panel consisted of three Council officers, a Director, a Manager and the Coordinator. Each of the panel members held a delegation from Council for the purposes of s 84P(e) of the Act but, pursuant to Council policy, it was the Director who was responsible for making the final decision.

The appellant attended the panel hearing, provided evidence and made submissions to the panel. After a detailed discussion between the panel members, the Director decided that the appellant’s dog should be destroyed (Decision).

The appellant, unsuccessfully, sought judicial review of the Decision in the Supreme Court of Victoria and the Court of Appeal. The appellant was granted leave to appeal to the High Court on the sole issue of an apprehension of possible bias on the part of the Coordinator.

The governing principle

Justices Kiefel, Bell, Keane and Nettle, in their joint judgment, reiterated that the governing principle for apprehended bias is that whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made.

It was observed that the governing principle has been applied to many kinds of decision-making and decision makers. The High Court noted that while the governing principle is largely a factual question, it is necessary to take into account the legal, statutory and factual contexts in which the decision is made. In other words, how the governing principle with respect to apprehension of bias is applied depends upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision maker. So, the hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

The application of the governing principle

The concern as to the impartiality of the Coordinator stemmed from her involvement in the prosecution of the charges prior to the Decision. The question to be asked is whether it might reasonably be apprehended that a person in the Coordinator’s position would have an interest in the Decision that could affect her proper decision-making.

Previous case law has held that a prosecutor, accuser or other moving party in a proceeding might be expected to have an interest in the outcome of the charges and that interest would conflict with the objectivity required of a person deciding the charges and any consequential matters. An interest of that kind points to the possibility of a deviation from the true course of decision-making.

Following the authorities, the High Court held that it is reasonable to expect that the Coordinator’s involvement in the prosecution of the charges created an interest in the final outcome of the matter. That interest did not end, as contended by the Council, when the proceedings in the Magistrates’ Court came to an end.

The High Court further noted that, having participated in the Magistrates’ Court charges, the Coordinator organised the panel hearing, informed the appellant of it, and supplied the panel with evidence. Although the Coordinator was not the person who ultimately made the Decision, she was the ‘moving force’ and played a material part in the Decision. The High Court further held that the participation of others in the hearing and decision-making process did not overcome the apprehension that the Coordinator’s interest in the outcome might affect not only the Coordinator’s decision-making, but that of others.

In a separate judgment, Justice Gageler held that, being the prosecutor of the Magistrates’ Court charges, the Coordinator might have developed a frame of mind incompatible with the dispassionate evaluation of whether administrative action should be taken against the appellant’s interests in light of her conviction. The Coordinator’s frame of mind might have affected the views she expressed as a member of the panel and those views might have influenced the ultimate decision.

Implications for decision makers

This case acts as a reminder to decision makers that perceived fairness in a decision-making process is as important as affording actual fairness. The facts of this case are of particular relevance to state and local government regulators who bring prosecutions and later use other administrative powers, such as interfering with a license or an approval.

For Commonwealth regulators, the CDPP make the decision to prosecute and that decision is likely to be considered to be separate from the prosecuting agency. However, Commonwealth regulators that are involved in civil penalty litigation and later make related administrative decisions should have regard to the potential for perceived bias and the comments of the High Court in this matter.

As a general rule, we suggest that regulators take care to ensure that their policies and procedures for making administrative decisions have high regard to the requirement that decision makers must be and be seen to be free from bias.

This includes ensuring that the decision makers involved in bringing prosecutions or civil penalty litigation are separate to the decision makers involved in any related administrative decisions. Clear lines of delegation and records of who participates in decision making should be kept.

The case also confirms that the mind of the decision maker can be taken to have been ‘infected’ by a bias that is perceived to exist in others that are very close to the decision making process. To avoid allegations of perceived bias, the decision making process should be enable the decision maker to stay at arm’s length from others in the organisation who are providing advice or evidence for consideration.