Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: applied
In relation to this ground, I was referred to what was said by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [28] as to the proper test to be applied for apprehended bias in the case of administrative proceedings held in private. To fully appreciate what their Honours there said, one needs to refer also to the surrounding context of [27] [31] inclusive: ' [27] The test for apprehended bias in relation to curial proceedings 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. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] 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. [29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented -- often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. 29 There is no submission on behalf of Dr Mathews in relation to this ground of apprehended bias that he was overborne or intimidated by vigorous testing of his evidence and frank exposure of its weaknesses at the hearing before the Committee such as to lead a fair-minded lay observer or a properly informed lay person to infer that there is no evidence he could give which could change the Committee's view. The only basis of this ground is put in terms of [27] supra. 30 It was submitted on behalf of the respondents that Dr Mathews' contention that the Committee ought to have had regard to unspecified 'further evidence' allegedly incorporated in his submissions on the Draft Report should be rejected. It was submitted that while Dr Mathews was entitled to make '... written submissions suggesting changes to the Draft Report ...', he was not entitled to give evidence see subs 106KD(3) of the Act.