A Commission Member should not hear a case if there are reasonable grounds for apprehending that they are, or will be seen to be, 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. Bias does not mean simply that a decision-maker considers one party’s case not to be strong, or decides a case adversely to one party.
Reasonable apprehension of bias may arise in the following 4 (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 and decide matters and do not, by agreeing too readily to suggestions of appearance of bias, encourage parties to believe that by seeking their disqualification they will have their case heard by someone thought to be more likely to decide the case in their favour.