[Music] g'day everyone and welcome to the final video for week five of our admin law course this week we've been looking at natural justice which is also called procedural fairness we've talked about the basic nature of procedural fairness we've talked about how procedural fairness must be extended to anyone whose rights interests and legitimate expectations will be affected by the decision and we've talked about the hearing rule which says that the person affected by the decision should be shown the materials to be relied on by the decision maker and given a reasonable opportunity to respond in this final video we talk about the second limb of procedural fairness which is the right to an unbiased decision maker now we divide bias into two distinct types called actual bias and apprehended bias we'll deal with actual bias first because it's much simpler and you barely ever see it in the cases actual bias occurs when a decision maker does not bring an impartial mind to the decision where they've already decided the outcome before they even begin looking at the material the most common types of actual bias occur as a result of discrimination if a decision maker was to look for instance at the name of the applicant and if they were to decide to make a decision adverse to a person simply because they had let's say a vietnamese name that would be actual bias they wouldn't be bringing an impartial mind to the decision now obviously many different groups of people have experienced the law and executive decision making in a way that was biased because of their gender their race their disability status sexuality religious views and so on nowadays we have anti-discrimination legislation and discrimination commissioners to look out for that sort of thing but those forms of discrimination don't really come through in the cases very much the usual example is a case called the crown against lee ex pate shaw this is an english case from about 150 years ago in that case a local sanitation committee had been appointed and they investigated a butcher for selling meat unfit for human consumption they decided he had a case to answer and so they brought a complaint before the court thing is one of the members of that committee then sat as a judge in the court the bias here is pretty obvious the judge had already decided that the butcher was a crook because he was part of the committee prosecuting him apprehended bias is much more complicated apprehended bias occurs when there's no actual wrongdoing perhaps not even a suggestion of wrongdoing but where there's some circumstance usually some conflict of interest which gives rise to the possibility that the judge might be perceived to be biased all of this arises from the old saying that justice should not just be done it should be seen to be done the actual rule comes from a case called ebner against the public trustee the court said that bias exists if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision maker is required to decide there's a little bit to unpack here first this is an objective test not a subjective test it doesn't matter what's going on in the mind of the decision maker what matters is what a fair-minded lay observer might think and it's a lay observer not someone with particular knowledge of the law or the subject area where the decision is being made second the threshold for the test is pretty low apprehended bias exists even if it's only true that the fair-minded lay observer might reasonably apprehend the test would be entirely different if it said that bias only existed when the observer would apprehend a problem in practice decision makers usually try to err on the safe side and they tend to recuse themselves or step aside whenever there's any realistic suggestion of a conflict what are the types of apprehended bias that we tend to see in reality well first there would be apprehended bias if the decision maker had a close personal or family relationship with a person affected by the decision this could be a positive relationship where the decision maker might be seen as wanting to help or a negative relationship where the decision maker might be seen as biased against the person that seems pretty obvious second there can be apprehended bias if the decision maker has a financial conflict of interest this is quite a strict test in a case called kirby against centro properties justice finkelstein found late in the piece that his self-managed superannuation fund owned shares in centro properties and so he was in effect a part owner of one of the parties in a matter that he was hearing the superannuation fund was part of a class action against centro properties so in a sense he was connected to both sides of the matter even though the holding was tiny just a few thousands out of 800 million shares it was still enough that he had a material interest in the outcome he very properly announced the conflict in open court and recused himself from the case that's a great example of apprehended bias there was absolutely no suggestion that justice finkelstein could have been swayed in his judgment but there would have still been a perception that he might not have brought an unbiased mind to the decision now there are a few situations that might seem like bias but are not the first one i'll mention is necessity if there are only a very few decision makers with the relevant expertise then there might simply not be a reasonable replacement decision maker to step in in that case the decision maker will certainly disclose the conflict that leads to apprehended bias but then they'll make the decision that's not the end of the world because it can always be reviewed or appealed this rule was identified in laws in the australian broadcasting tribunal where a famous radio broadcaster made some statements which drew large numbers of complaints some of the tribunal members who met to decide those complaints had also been involved in the investigation however the members of the tribunal were the only members of the tribunal so even though the members who had not been involved in the investigation might potentially be seen as compromised by association there was really no option but to let them proceed to make the decision necessity was discussed by the high court in british american tobacco against lorry a case where a widow sought damages from a tobacco company arising from her husband's death from lung cancer necessity was rejected in that case but the concept itself was approved next it's not bias if the decision maker expresses an opinion or a tentative conclusion this happens in court all the time judges will say at the moment i'm leaning in this direction but they do this as a matter of fairness not bias so that the side they're leaning away from has fair notice of that fact and can work to convince the judge to change their mind government administrators will often satisfy the hearing rule by sending the applicant a draft decision and asking the applicant to show cause why that decision should not be made final that's not bias the reason is that in those cases the decision maker clearly doesn't have a fixed view incapable of being persuaded otherwise to the contrary they're inviting the applicant to change their mind so there we have it natural justice otherwise known as procedural fairness if you have a right an interest or a legitimate expectation which is likely to be affected by a decision then you have the right to be heard which means the right to see the relevant information a proper opportunity to consider the information and a right to be heard in relation to the information you also have a right to a decision maker who's not biased and in respect of whom a fair-minded impartial layperson would not reasonably apprehend that they might not bring an impartial mind to the decision natural justice really is the soul of our very concept of justice if someone is making decisions about your life and you don't have the right to an unbiased decision maker or if you don't have a right to be heard in relation to that decision then you're simply at the mercy of the decision maker it's utterly disempowering and even worse it leads decision makers to realize they can make whatever decisions they like because nobody can challenge them corruption is almost inevitable that's it for week five next week we're going to look at the narrow ultravires grounds for review and we're going to look at a concept called jurisdictional error of law one last thing about natural justice our big hint gang i have never seen an admin law exam which didn't have a natural justice question see you next week you