A Fair Work Commission member should not hear a case if there is a reasonable apprehension that they are biased.
The question of a reasonable apprehension of bias is a difficult one involving matters 'of degree and particular circumstances [which] may strike different minds in different ways'.
A reasonable apprehension of bias involves deciding whether a 'fair-minded lay observer' would reasonably apprehend that the decision maker would not decide a case impartially and without prejudice. It is not bias where a decision maker decides a case adversely to one party.
Reasonable apprehension of bias may arise in the following four (sometimes overlapping) ways:
- if a Commission member has some direct or indirect interest in the case, financial or otherwise
- if a Commission member has published statements or acted in a way that gives rise to a reasonable apprehension of prejudice
- if the Commission member has some direct or indirect relationship, experience or contact with anyone involved in the case, and
- if the Commission member has some knowledge of extraneous information, which cannot be used in the case, however would be seen as detrimental.
While it is important that justice must be seen to be done, it is of equal importance that Commission members discharge their duty to hear the evidence and decide the matter. This means that they should not accept the suggestion of apprehended bias too readily.