Bias

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.[197]

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’.[198]

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.[199] 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.[200]

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.[201]

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.[202]

In deciding whether a Commission Member should be disqualified for the appearance of bias, the Member (or a Full Bench on appeal) will consider whether a reasonable and fair minded person might anticipate that the Commission member might approach the matter with a partial or prejudiced mind.[203]

The question is not whether the decision-maker’s mind was blank, but whether their mind was open to persuasion.[204]

The expression of a provisional view on a particular issue, or warning parties of the outcome of a provisional view, is usually entirely consistent with procedural fairness.[205]

Generally, a Commission Member will not be disqualified in circumstances where it is found that the Member, before being appointed as a Member, gave legal advice or represented a person who now appears before them as a party in their capacity as a Member.[206] However, the Member should not hear a matter if the Member:

• is determining the correctness of advice they gave to a party in their role as a legal representative
• recommended a course of conduct to a party in their role as a legal representative and the legality, reasonableness or wisdom of that conduct is to be determined, or
• is determining the quality of the advice they gave while they were the legal representative of one of the parties.[207]

Commission Members can draw upon the specialist expertise they bring to the Commission or their general knowledge as members of the community in dealing with Commission matters. However, a Commission Member should disclose any independent knowledge of factual matters that affect or may affect the decision to be made.[208]

A central element of the justice system is that a judge (or Commission Member) should determine the case based on the evidence and arguments presented.[209] A judge (or Commission Member) should not take into account, or indeed receive, secret or private representations from a party or from a stranger about the case they are to decide.[210]

Apprehension of bias – Expression of a view or prejudgment

Gaynor King [2018] FWC 3300 (Bissett C, 8 June 2018).

Facts

Three applicants made applications to the Commission for an order to stop bullying, naming Ms King as the person who had engaged in the conduct. Following 2 conciliation conferences before the Commission, the applicants discontinued their applications. Ms King made an application for costs against the applicants. Commissioner Bissett made a decision in relation to that application, dismissing the application for costs.

At the same time as the costs application, Ms King also made an application to the Commission for orders to stop bullying. She named the 3 initial applicants as those who had engaged in bullying conduct directed towards her, which included making the initial applications for orders to stop bullying.

Ms King’s application for orders to stop bullying was subject to conciliation before Commissioner Bissett, where it did not settle. Directions were then issued for filing submissions and evidence in the matter. United Voice, representing the initial applicants (now respondents) requested that Commissioner Bissett recuse herself from further dealing with the application because of comments made by the Commissioner in the costs decision.

Outcome

Commissioner Bissett considered the passages from the costs decision issued by her in relation to the applications of the initial applicants. In that decision, the Commissioner made findings with respect to the motivations of the 3 in making their applications for orders to stop bullying. The Commissioner found that the applications harassed and embarrassed Ms King, were made vexatiously, sought to intimidate and had far-reaching consequences.

The Commissioner was satisfied that she expressed views in that decision that may lead a lay observer to apprehend that she may not bring an impartial mind to the determination of the application by Ms King. Accordingly, Commissioner Bissett recused herself from hearing Ms King’s application for orders to stop bullying.

Relevance

Any person making application to the Commission is entitled to a fair hearing and to have their case determined on its merits. The application by Ms King was inextricably tied up with the earlier applications for orders to stop bullying and the costs application. In order to ensure that everyone, including Ms King, was fairly heard, the Commissioner was satisfied that she should recuse herself.