(7) & (8) PROCEDURAL FAIRNESS
“Rights, interests or legitimate interests”
NATURE OF PROCEDURAL FAIRNESS
 Rules of procedural fairness regulate actual conduct of the
decision-maker, while other grounds of judicial review (eg.
irrelevant consideration, act for improper purpose) regulate
the process of reasoning.
 Whether judicial review is available for breach of procedural
fairness (in particular, the hearing rule) is approached through
a 2-stage analysis.
Value of Procedural Fairness
 Procedural fairness is valuable because of:
 Instrumental importance: fair procedures help achieve the
purposes of substantive rules/principles  achieve the
right outcome.
 Intrinsic benefits: participation, justice is seen to be done,
equal treatment, psychological contributions, democratic,
gives people respect & dignity.
 Rules of PF create tension between administrative efficiency,
and fairness to the Pl. The more procedures required, the more
difficulty to the administrator (more “red light”).
1) WHEN DOES PROCEDURAL FAIRNESS
APPLY? (SCOPE)
 Kioa v West: Procedural fairness applies to an administrative
decision which has a direct & immediate effect on rights,
interests or legitimate interests of an individuals; subject to
clear contrary statutory intent.
 If there is sufficient interest for standing, then usually
procedural fairness applies (Bropho).
“Direct & immediate effect”
 This means individualised decision-making. The decision
must be about individuals. Broad, high-level policy decisions
do not have an individualised effect.
 So procedural fairness can only be implied if the decision
affects an individual’s interest in a way substantially
different to the way it affects the public at large.
 Eg. SA v O’Shea: Even though the decision not to release
a sex-offender was in the public interest, and was thus a
highly “political” decision, it included considerations
personal to O’Shea (ie. the Parole Board’s report on him)
 procedural fairness applied.
 Salemi: The decision must directly affect the person
individually, not simply as a member of the public or class of
public. An administrative decision of the latter kind is a
“policy” or “political” decision not subject to judicial review.
 Kioa: Decisions which only indirectly affect the
rights/interests/expectations of individuals include:
 Decision to impose a tax;
 Decision to impose general charge for services.
 The test for procedural fairness is narrower than the test for
standing:
 WA v Bropho: An interest which attracts principles of
natural justice will always give standing; but a grievance
that gives standing does not always involve a legitimate
expectation that is protected by principles of natural
justice.
 Representative standing cannot be translated into
application of procedural fairness.
[Justification? If a decision affects a large number of people, it
would be impractical to give each a hearing]
 Kioa v West (Mason):
 “Rights” means legal rights (Eg. proprietary right).
 “Interest” is very broad (Eg: personal liberty, status,
preservation of livelihood & reputation, financial
interest). Same as the standing test.
 “Legitimate expectation” fills the situation where the
decision does not deprive of a legal right or interest (eg.
renewal of licence)  procedural fairness applies even if
the decision takes away something you have not got, as
long as you legitimately expected to get it.
Contrary statutory intention
 Cases show that judges are reluctant to say that Parliament did
not intend procedural fairness to apply  a shift in focus to
content of procedural fairness (Kioa v West).
 Ainsworth v CJC: Could not use expressio unius maxim
to impliedly exclude procedural fairness.
 Exp Miah: Specification of certain procedures (“Code”)
& right of appeal to Tribunal, were insufficient to exclude
procedural fairness.
 Kioa v West: A strong manifestation of contrary statutory
intention is needed to exclude procedural fairness.
 Procedural fairness may be excluded where its application
would be inconsistent with the statute’s operation or
purposes.
 But the court allows Parliament to exclude procedural fairness
expressly & clearly (eg. Migration Act successfully removed
procedural fairness).
2) WHAT DOES PROCEDURAL FAIRNESS
REQUIRE? (CONTENT)
A) Hearing rule: Fair Hearing
 Procedural fairness requires a “fair hearing”.
 A “fair hearing” may require:
 Disclosure of the adverse material;
 Opportunity to rebut adverse allegations;
 Adequate notice (More time);
 Oral hearing;
 Legal representation;
 Cross-examination of adverse witnesses.
Notice of adverse information influencing decision making
 Kioa v West: The administrator must notify the affected person
about adverse information in the administrator’s mind, that is
prejudicial to the person’s interests (including reasons). How
much the person needs to know, depends.
 Put another way, the administrator must give the Pl a
reasonable understanding of the adverse allegations
which could influence its decision-making.
 Kioa v West: Even adverse information that is not
crucial/decisive of the decision, must be disclosed to the Pl (if
it’s in the decision-maker’s mind).
 *Information that the applicant was consorting illegal
immigrants was not decisive of the decision to deport (b/c
not in the reasons given).
 Held: K should have the opportunity to reply to the
prejudicial allegations  denial of PF.
 Exp Miah: Even adverse information that is in the public
domain, must be disclosed (if it’s in the decision-maker’s
mind).
 (7) & (8) PROCEDURAL FAIRNESS
Reasonable opportunity to prepare defence
 Exp Polemis: The affected person must be given a reasonable
opportunity to reply to the case made against him. What is a
reasonable opportunity, depends on what his argument is.
 Kioa v West; Russell v Duke of Norfolk: The procedures
required depends on the circumstances of the particular case
(ie. are flexible). Relevant circumstances include:
 The nature of the inquiry;
 The subject-matter; and
 The rules under which the decision-maker is acting.
 Pl bears the burden of proving that the decision was unfair
because it did not involve a procedure required by fairness.
 Test is to ask:
 What is Pl’s defence argument to the allegation? Possible
responses:
 Wrong facts: “The alleged event never happened”.
 Wrong interpretation of statute: “The allegation is
false/mistaken”  need to X-examine.
 Poor credibility: “The allegers are biased or dislike
me”  need to X-examine.
 What procedures are necessary in order to make Pl’s
case? Why?
 Were those procedures adopted in the hearing? No 
denial of PF.
B) Bias rule: Impartial decision-making
 Basic rule: The decision-maker must have an impartial mind
open to persuasion during the hearing, actually & in
appearance.
 It applies to judges, and also administrators (but with less
stringency).
 Rationale of bias rule = to maintain public confidence in
the integrity of decision-makers.
 The rule against bias is flexible (because of “reasonable” in
ostensible bias test).
 3 categories of bias: Actual bias, Deemed bias, Ostensible
bias.
Actual Bias
 Courts are reluctant to find actual bias:
 because it destroys public confidence in the justice
system, and the whole point of the bias rule is to make the
decision-maker look trustworthy; and
 NOT because it is hard to determine the subjective state
of mind of the decision-maker (we do it in criminal law
all the time).
Deemed Bias
 Dimes v Grand Junction Canal: Where the decision-maker
has a direct financial interest in the outcome of the decision,
he is deemed to be biased.
 *Court of Chancery affirmed orders made in favour of a
canal company, in which the Lord Chancellor (who sat on
the appeal) held shares.
 *There was no evidence that the Chancellor’s decision
was actually affected by the shareholding.
 The HOL set aside the decree.
 Ebner v OTB: If the decision has no effect on the financial
interest of the decision-maker, then there is no deemed bias.
 (The outcome of the decision would not affect the price
of the shares that the judge owned  no deemed bias.)
Apprehended Bias
 Livesey v NSWBA: There is ostensible bias if a fair-minded
observer would reasonably apprehend that the judge is not
bringing an impartial mind to the issue.
 Grounds for a reasonable apprehension of bias include:
 The decision-maker has previously expressed views about
a case, or announces preliminary views during a case
(Livesey v NSWBA) [ie. has prejudged the case];
 The decision-maker conducted the matter in an
unjudicial way (Damjanovic v Sharpe Hume);
 The decision-maker has a close relationship with a party;
and
 The decision-maker acts as prosecutor & judge (Stollery
v Greyhound Racing).
 Test = [Given the remarks made, relationship etc] would a
fair-minded observer reasonably think that there might be
bias?
Preconceptions:
 Livesey v NSWBA: A fair-minded observer might entertain a
reasonable apprehension of bias by reason of prejudgment, if
a judge hears a case at 1st instance after he has, in a previous
case, expressed clear views about:
 a question of fact which constitutes a live & significant
issue in the subsequent case; or
 the credit of a witness whose evidence is of significance
on such a question of fact.
 Vakauta v Kelly: Ostensible bias does not exist merely because
a judge has preconceived views about the reliability of the
evidence of a particular medical witness, even if the judge
discloses the existence of such views in the course of
dialogue.
 Distinguish preconceived views about reliability of
medical witnesses, from preconceived views about
credibility of non-expert witnesses.
2 exceptions to the ostensible bias rule:
 Waiver of right to object
 Vakauta v Kelly: Where a party is aware of a right to
object on grounds of apprehended bias, but fails to do so
prior to the decision, then the party has waived that right
to object. (can’t wait for final judgment and then attack it)
 Good or bad rule? Depends on whether it enhances the
purpose of the bias rule (ie. public confidence).
 It’s Good because: If counsel is forced to object
during the trial, the judge can correct himself by
declaring that although he has preconceptions of the
witnesses, he is open to persuasion on the evidence
(Vakauta v Kelly). Also saves time. Thus, improves
public confidence.
 It’s Bad because: The bias rule (esp. ostensible bias)
is for the benefit of the community, not just the
individual  individual should not be able to waive
away the community’s interest in the bias. Also,
waiver defeats the purpose of a hearing, which is
supposed to be free from bias in all cases. Thus,
damages public confidence.
 Rule of Necessity
 Laws v ABT: Because statute can override common law,
the bias rule cannot:
 Stop a body set up to do statutory functions from
performing those functions; or
 Frustrate the intended operation of a statute.
 Deane: But the rule does not apply where its application
would involve positive & substantial injustice; and when
it applies, the rule does so only to the extent that necessity
justifies.
 (7) & (8) PROCEDURAL FAIRNESS
 Usually no issue of necessity, because a body has lots of  Appellants argued the expressio unius est exclusio alterius
delegates, and there are changes in members over time.
HEARING CASES
Kioa v West
Scope & content of Procedural Fairness.
 *K applied for an extension to his temporary entry permit.
 *After the permit expired, K remained in Australia allegedly
because his home country was devastated by a cyclone.
 *Minister decided to refuse K’s applications for entry permits,
because of certain allegations about K that were not put to K.
 *K argued that the Minister’s decision to refuse his
application breached procedural fairness.
Threshold:
 [The deportation order clearly affected the interest of K
(personal liberty) in an individualised way.]
 The Migration Act as amended required the administrator to
give reasons for his decision  statute did not displace the
obligation to comply with procedural fairness requirements.
Content:
 Procedural fairness requires the administrator to bring to a
person’s attention the critical factor on which the admin
decision is likely to turn, so that he may have an opportunity
of dealing with it.
 Procedural fairness demands that K should have the
opportunity of replying to allegations which were extremely
prejudicial to K. There were 2 such matters:
 The comment that: had K been genuine, he would have
sought a decision on his application rather than change
his address without notifying the Dept.
 The comment that: K’s concern for illegal immigrants &
his active involvement with others seeking to circumvent
Australia’s immigration laws, must be a source of
concern.
 The other materials which K complained of consist of policy
& undisputed statements, which does not call for a chance to
reply.
  Appeal allowed, deportation quashed order.
 Obiter: In the case of a prohibited immigrant who intends to
remain without lawful right and evades authorities, procedural
fairness does not require giving of advance notice of the
deportation order.
Ainsworth v Criminal Justice Commission
Contrary statutory intention (Scope).
 *CJC’s report criticised Ainsworth’s conduct, and
recommended against Ainsworth participating in the gaming
machine industry.
 *Ainsworth group was not given an opportunity to be heard in
opposition to the report’s recommendation.
 *S 3.21(2)(a) required CJC to act fairly in “proceedings”.
 *Appellants commenced proceedings alleging breach of
procedural fairness, arguing that:
 the Act obliged the CJC to comply with procedural
fairness; or
 the duty arose under the general law, and was not
excluded by the Act.
Held:
 The report adversely affected reputation [a sufficient interest
to attract procedural fairness] of an individual [Ainsworth] in
a direct & immediate way  prima facie, procedural fairness
applies.
Appellant’s argument #1: “Statute requires fairness in
“proceedings”  excludes fairness if no “proceeding”, and
reporting is not a “proceeding””
maxim: If a statute specifically requires fairness in 1 area, it
does not require it in all other areas.
 The CJC’s functions & responsibilities are so important that
“proceedings” includes any step, no matter how informal, in
relation to its functions & responsibilities  “proceedings”
includes reporting  s 3.21(2)(a) requires procedural fairness
for the report.
 Even if “proceedings” does not cover any step, procedural
fairness is presumed by common law to apply in the situations
not specifically dealt with by the Act.
 The expressio maxim does not displace this presumption,
because the Commission’s nature & its functions &
responsibilities are such that Parliament did not intend it to act
unfairly.
Appellant’s argument #2: “Procedural fairness not denied in
the entire process”
 Appellants argued that although CJC was not procedurally
fair, the committee could intervene to ensure fairness  in the
process’s entirety, there is fairness.
 Principle: Where a decision-making process involves different
steps, procedural fairness is satisfied if the entire process
entails procedural fairness.
 But the CJC & Committee had separate processes  no
guarantee that the Committee will intervene to correct CJC’s
unfairness  CJC’s unfairness = denial of procedural fairness.
 Anyway, in practice: the report is already publicly available &
appellants’ reputation has been damaged  denial of
procedural fairness.
Annamunthodo v Oilfields Workers’ Trade Union
No notice.
 *Pl was charged with offences against certain union rules,
under which Pl could only be fined, but not expelled from the
union.
 *Pl was given a hearing, but he chose not to attend the
adjourned hearing.
 *At the adjourned hearing, the council expelled him under a
rule he had NOT been charged under.
 [The decision to expel directly & immediately affected an
interest, being the union membership  procedural fairness
applied. Issue = content of it]
 Since Pl could not be expected to know that the expulsion rule
would be used, fairness requires that the Pl be given notice
that the expulsion rule might be used to expel him.
 When the Council at the adjourned hearing desired to proceed
under the expulsion rule, they should have adjourned the
hearing again so as to give him notice of the fresh charge.
They failed to do so  natural justice breached.
 Pl’s appealing of the expulsion was not affirmance of the
expulsion. He could still complain of a want of natural justice.
Ex parte Polemis
PF required more time to prepare.
 *Pl had notice that he was charged for oil polluting.
 *Pl was given only 5.5 hours to prepare his case. Judges
refused his adjournment application.
 *Magistrate heard the charge & found him guilty.
 The judges’ refusal of adjournment was a breach of natural
justice: Pl was not given a reasonable opportunity to prepare
his defence [that the pollution was not from his ship], because:
 He had no time to prepare supporting evidence (eg. oil
samples, witnesses, state of weather);
 He had no time to read the prosecutor’s report of samples;
 He had poor English.
 Irrelevant that, in hindsight, there was no merit in Pl’s case.
 (7) & (8) PROCEDURAL FAIRNESS
 If procedural fairness requires adjournment, then it must be
given, even if Pl was sailing away that day and may not
return. Anyway, the judges could have got the Pl to place a
deposit.
Chen Zhen Zi v Minister for Immigration & Ethnic Affairs
PF did not require oral hearing in all cases.
 *Refugee = person who has a well-founded fear of
persecution, is outside the country of his nationality, and is
unable to seek protection in that country.
 *An applicant has a right to have a primary decision on
refugee status reviewed by the Refugee Status Review
Committee.
 *Pl argued that procedural fairness required an oral interview
in every RSRC review, because:
 1) Refugee status contained subjective element (“fear”) &
objective element (“well-founded”). Must interview to
assess subjective element.
 2) Process of determining refugee status involves
judgments on political, religious, racial & human rights
situation in a foreign nation. The review officer could
misunderstand these.
 3) Applicant may need to rely on interpreter, and may not
give a full written account of their case in fear of it being  Procedural fairness did NOT extend to require Commissioner
disclosed to his country
 4) A correct decision is important to applicant & family.
 5) No oral hearing meant that the review officer cannot
test the applicant’s credibility.
 Not disputed that rules of PF applied.
 The Court held that the Pl’s arguments only required oral
hearings in some, not all, cases:
 1) Don’t need interview if objective element not satisfied
already.
 2) Misunderstanding will not necessarily be eliminated by
oral interview.
 3) Some applicants have an adequate command of
English. Also, the same apprehension & mistrust (if any)
will still exist in oral interview.
 4) Mere importance does not compel an oral interview.
 5) In some cases, credibility is not an issue.
 SO – Rules of natural justice do not require an oral hearing in
every application for refugee status. However, they may
require an oral hearing in a particular case, where:
 **credibility is in issue [eg. if applicant asserts factual
well-known info, then credibility is not in issue  oral
hearing not needed];
 the applicant is disadvantaged by being limited to
submissions in writing.
A green light decision. Court is sympathetic to the administrator.
White v Ryde Municipal Council
PF did not require legal representation at hearing.
 *Neighbours complained of Pl keeping 30 cats.
 *Council recommended to prohibit Pl from keeping more than
2 cats at a time.
 *Pl was informed that he had 4 days to represent to the
committee as to why the resolution should not be given effect.
 *Pl requested to have his lawyer present at his hearing, but
was refused.
 *At Pl’s hearing, Pl alleged that there were no unsanitary
conditions, he was only keeping the cats temporarily, and they
killed rats.
 *Council confirmed its decision.
 Pl’s hearing was fair. Here, fairness did not require legal
representation at the hearing, because all that was involved
were simple factual matters which could be stated without
skills of a trained advocate:
 There were no legal issues [eg. difficult statutory
interpretation] involved;
 Pl was facing no charge;
 There were no witnesses to cross-examine.
O’Rourke v Miller
PF did not require cross-examination or confrontation.
 *2 members of public complained that a probationary
constable (Pl) on duty was drunk.
 *Commissioner put the allegations to Pl, who replied that the
witnesses were wrong.
 *Pl wanted to confront/cross-examine the 2 witnesses, but
Commissioner did not allow it.
 *Commissioner decided (with power) to sack Pl anyway.
 Pl, as probationary constable, had a legitimate expectation that
his appointment would be confirmed  the decision to
terminate his appointment affected his legitimate expectation
 procedural fairness applied.
 Pl was told about what was alleged against him, and was
given a fair opportunity to state his defence  procedurally
fair.
to allow Pl to confront/cross-examine the witnesses, because:
 **There was no reason why the witnesses (who were
strangers to Pl) concocted their story;
 Some of the Pl’s statements lent credence to that story;
 It is very important to the public that persons whose
character is doubtful, should be kept out of the police
force.
 [Implicit reasoning could be: If require the witnesses to be
cross-examined, then it deters people from reporting police
misconduct. We don’t want this  PF does not allow cross-
examination]
 [Can criticise this decision: The credibility of witnesses are in
issue  cross-examination is necessary. But can argue that
credibility was not really in issue, because there was no real
issue of fabrication. Anyway, the facts are special (importance
of police).]
National Companies and Securities Commission v News
Corporation
PF did not require trial procedures.
 *NCSC held a “hearing” to investigate its suspicion that News
Corp committed certain offences. Only if the investigation
showed something wrong, would NCSC lodge proceedings in
the Supreme Court.
 *s 38(1): At a hearing:
 (a) the proceedings shall be conducted with as little
formality & technicality, and with as much expediency,
as possible;
 (b) the Commission is not bound by rules of evidence;
 (c) the Commission may permit a person to intervene;
 (d) the Commission shall observe rules of natural justice.
 *The Commission proposed to conduct the hearing as follows:
 Commission can summon any witness;
 Each witness may have legal representation during
examination, who may re-examine;
 Each witness will be provided with a transcript of his
evidence;
 If the Commission proposes to publish any matter adverse
to any person, it will afford that person an opportunity to
be heard & call evidence on such matter before
publication.
 (7) & (8) PROCEDURAL FAIRNESS
 *The Commission disallowed News’ request for trial
procedures:
 News & its legal representatives to be present throughout
the whole hearing;
 News to intervene in proceedings;
 Its lawyer to cross-examine witnesses at hearing;
 News to call evidence in reply;
 News to make submissions to the Commission before it
makes any findings.
Statute requires trial procedures?
 The Commission’s investigation will comply with rules of
natural justice, if it proceeds to:
 Allow each witness called to give evidence to be legally
represented, with freedom for that representative to
examine the witness;
 Provide a transcript of his evidence.
 Procedural fairness does NOT require the hearing to be treated
as a court trial, because:
 “Hearing” in the statute is not used in a technical sense
that requires court trial procedures; it is an ordinary word
which must take its meaning from its context in the Act.
 The nature of the investigation is such that:
 There is no charge or direct legal consequence;
 No issue can be determined;
 The hearing is designed to discover facts; and
 The procedure is not adversarial, but inquisitorial.
 The statutory framework recognises need for expedition.
 News Corp can cross-examine & call evidence if
proceedings are subsequently brought in the Supreme
Court.
 At the hearing, the NTSC is unlikely to fail to call News
Corp’s witnesses  case will probably be made known
during the hearing.
Ex Parte Miah
Exclusion/modification of procedural obligations by statute:
How clear contrary statutory intention has to be.
 *M, a Bangladesh national, applied for a protection visa on
the basis that he was a “refugee”.
 *After the date of application, the delegate received new
information that the Bangladesh government changed. The
delegate thought that the ousting of the BNP meant people
were more tolerant  delegate considered it decisive against
M’s application.
 *Delegate did not inform M of the new material and give him
an opportunity to respond to it before deciding to refuse.
Procedural fairness applied?
 Legislation was not intended to exclude common law
procedural fairness requirements, because:
 there are no clear words to that effect;
 the subject matter of the Act;
 the Act implemented international obligations.
Content of procedural fairness requirements?
st
Def’s 1 argument
 Def argued that use of the word “Code” in the heading of
subdiv AB excludes any procedural fairness requirements
outside subdiv AB.
 But this is a weak reason. Eg: Parliament could not have
intended to exclude bias/corruption rules.
 Examples of material that would NOT require comment by
the applicant include:
 Non-adverse country information;
 Favourable/corroborative information in the public
domain; and
 Information based on circumstances described in the
application.
 An applicant must be given an opportunity to comment where
the delegate proposes to use new material (of which the
applicant may be unaware) and which could be decisive
against the application;
 This disclosure is stronger where the material concerns
circumstances that have changed since application date,
and is being used after considerable delay.
 It is even stronger if the material is equivocal or contains
info that the applicant could not reasonably have expected
to be used.
 Here, the new information was decisive of the claim, and was
totally new, was considered 13 mths after date of application,
and M could not have reasonably expected this information to
be used against him (since both parties were arguably
unwilling to offer M protection). The delegate did not inform
M he would use the election results, nor offer M an
opportunity to comment  breach of procedural fairness.
Def’s 2nd argument
 Def argued that because the Act gave a right to full de novo
review by the Tribunal, Parliament intended to limit
requirements of natural justice at the stage where a delegate is
examining the application.
 Factors relevant in determining whether a right to full review
excludes/limits rules of natural justice:
 Preliminary/Final original decision: The more final the
decision is, the more likely natural justice applies.
 Here, the decision was final  natural justice.
 Public/Private original decision: If private decision, it is
less likely that natural justice applies (because reputation
not affected as much).
 Here, the decision was private  no natural justice.
 Formalities required for original decision.
 Here, the requirement to give reasons made it harder
to say that an appeal right was intended to limit
natural justice requirements  natural justice.
 Urgency of original decision.
 Here, there was no urgency  natural justice.
 Judicial/Internal appellate body: If the appellate body
is a court, it is easier to infer that the right to appeal was
intended to limit/exclude rules of natural justice at the
earlier level.
 Here, the appellate body is a Tribunal  natural
justice.
 De novo/Limited appeal: If de novo, easier to infer that
natural justice was intended to be excluded/limited.
 Here, there was de novo  no natural justice.
 Nature of interest; Consequences for individual,
Subject matter of legislation.
 Here, nature of interest = personal security;
Consequences = serious threats; Subject matter =
international obligations towards vulnerable citizens
 natural justice.
 Balancing these factors, the right to appeal to the Tribunal is
NOT intended to exclude/limit natural fairness.
 Denial of procedural fairness is grounds for relief under s
75(v).
BIAS CASES
Laws v Australian Broadcasting Tribunal
No ostensible bias (prejudgement); necessity.
 *In Laws’ broadcast, he criticised expenditure on Aboriginal
welfare. Complaints were made to the ABT.
 *Relevant provisions:
 (7) & (8) PROCEDURAL FAIRNESS
 S 119(1) Broadcasting Act: Where a person broadcasts a
program in respect of which the program standards were
not complied with, the Tribunal may, by direction,
prohibit or restrict the person’s presentation of broadcasts.
 S 119(2) required the Tribunal to call upon the person to
show cause why it should not act under subs (1) before so
acting.
 S 17: A pre-condition to the exercise of s 119 powers is
the holding of an inquiry into the proposed exercise of
powers.
 *3 Tribunal members discussed the complaints with the
manager & director of 2GB, but not Laws.
 *Decision 1: 3 Tribunal members decided that the
broadcasting of Laws’ programme breached a racial
vilification standard.
 *Decision 2: The Tribunal decided to hold an inquiry
(required by s 17) to decide whether there is any breach of the
standard, and if so, what the penalty should be under s 119.
 *A Tribunal representative gave a radio interview, in which
she repeated the substance of the Tribunal’s first decision.
 *Laws sued the Tribunal and the representative for defamation
arising out of the interview.
 *In its defence, the Tribunal pleaded that what was said in the
interview was of substantial truth & related to a matter of
public interest.
 *Laws argued that the representative’s statements reflect the
corporate view of the Tribunal members, and that – in filing &
maintaining its defences to the action – the Tribunal members
have asserted that Laws contravened RPS 3  all Tribunal
members are disqualified from participating in any future
inquiry as to Laws’ non-compliance.
Decision 1 valid?
 The Tribunal was only authorised to conduct a preliminary
investigation to decide whether it should hold a formal
inquiry.
 The 3 members went beyond this, by deciding the matter in
strong terms  ultra vires decision.
 [Laws himself was not given a chance to talk to the Tribunal
about the complaints  denial of PF]
Decision 1 disqualified the 3 ABT members from inquiry?
 The 3 ABT members’ preliminary investigation amounted to
positive findings of contraventions of the radio standard,
which would lead an objective bystander to reasonably
apprehend that they had pre-determined whether Laws had
failed to comply with the standard  the 3 members were
disqualified from participating in the inquiry.
Interview disqualified all ABT members from inquiry?
 The interview & its content was not necessarily done on
behalf of the individual members  not all members are
disqualified.
Defence disqualified all ABT members from inquiry?
 Actual bias? No, the defences filed do not constitute
assertions that the matters pleaded are true/correct.
 Deemed bias? If the action succeeds, the government will
ensure that the Tribunal has funds to meet the verdict  an
observer will not suppose that the members who participate in
the inquiry would have any material interest in resolving the
relevant issues.
 Apprehended bias? A fair-minded observer would know that
filed defences do NOT amount to assertions of belief &
therefore prejudgement  observer would conclude that the
other members would bring an unprejudiced & impartial mind
to the inquiry  no apprehended bias.
 [Criticism: But it’s unsatisfactory that a fair-minded
observer would know that defences are not assertions of
belief (too technical). Also, defences should be assertions
of truth/correctness]
 Necessity: Even if apprehended bias attaches to all members,
the necessity rule allows a member to participate in inquiry.
 So – only the 3 members are disqualified from the inquiry.
Vakauta v Kelly
Ostensible bias (prejudgement); waiver.
 *During a trial, the judge criticised evidence given by the
Def’s medical witnesses in previous cases, including:
 “that unholy trinity”;
 the GIO’s “usual panel of doctors who think you can do a
full week’s work without any arms or legs”;
 the doctors’ “views are almost inevitably slanted in
favour of the GIO by whom they have been retained,
consciously or unconsciously”.
 *Def’s counsel did not object to the remarks.
 *In a reserved judgment, the judge:
 said that the evidence of the doctor was “as negative as it
always seems to be – and based as usual upon his non-
acceptance of the genuineness of any plaintiff’s
complaints of pain”; and
 prefaced concessions made by the doctor with “Even Dr
Lawson thought”.
During the trial
 Ostensible bias? Yes. The remarks show an adverse attitude
to the expert witnesses  would have led a fair-minded
observer to reasonably apprehend that the judge might not
have an unprejudiced mind.
 But Dawson – no apprehensive bias because alerting the
parties to a preconception assists an impartial approach.
The judge can still assess the evidence fairly.
 Waiver? By not objecting to the judge’s remarks, the Def
waived any right to appeal against an adverse decision on the
ground of what had been said at the hearing.
Reserved judgement
 Ostensible bias? The observations made about the doctor in
the judgement (in the context of remarks made during the
trial) amounted to ostensible bias, because they would lead a
reasonable or fair-minded observer to conclude that the judge
was heavily influenced by views he had formed on other
occasions rather than by an assessment based on the case in
hand.
 Waiver? No. Since the judgment was reserved, there was no
opportunity for Def to object to its contents.
Damjanovic v Sharpe Hume & Co
Ostensible bias (prejudgement & other conduct).
 *D (Pl) sued for forgery & improper payment of a cheque.
 *Vukic (who had no legal qualifications) represented D, who
knew little English.
 *Before evidence in the forgery proceedings was completed,
Gibb DCJ decided the case based on the improper payment of
the cheque.
 *Her Honour decided not to believe Pl in that proceeding.
 A reasonable bystander would have apprehended bias,
because:
 The judge stated in her judgment that she disbelieved D
on the basis of evidence he gave not only in the present
case, but in the other cases; [prejudgement] and
 The judge fell short of acceptable judicial behaviour, by
saying “shut up”; sarcastically referring to Ms Vukic’s
“spectacular silence”; and sarcastically & critically
commenting “how very convenient”. [other conduct]
 Waiver? No, because D & Ms Vukic did not know of their
right to object. Anyway, the judge revived the matter in her
 (7) & (8) PROCEDURAL FAIRNESS
judgement in the findings she made about D’s credibility in
the forgery cases.
 Order: A new trial before a judge other than Gibb DCJ.