Procedural fairness – bias rule
✅ Procedural Fairness – The Bias Rule
What is Procedural Fairness?
Procedural fairness (also known as natural justice) is a fundamental legal principle requiring fair and impartial procedures when public authorities make decisions affecting individuals' rights, interests, or legitimate expectations.
It includes two core rules:
The hearing rule – the right to be heard.
The bias rule – the right to an impartial decision-maker.
🔍 Focus: The Bias Rule
What is the Bias Rule?
The bias rule requires that decision-makers must be impartial and must not have a conflict of interest.
It ensures fair decision-making by preventing actual bias or the reasonable apprehension of bias.
Even if there is no actual bias, a perceived bias may still invalidate a decision.
Types of Bias
Actual bias – where a decision-maker is actually prejudiced or has a vested interest.
Apprehended bias – where a fair-minded observer might reasonably suspect that the decision-maker is not impartial.
Legal Test (Apprehended Bias):
“Whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question.”
— From Ebner v Official Trustee in Bankruptcy (2000)
🧑⚖️ Key Case Law: Bias Rule in Action
1. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Facts:
Two judges held shares in banks involved in cases they were presiding over. The issue was whether this created a reasonable apprehension of bias.
Judgment:
The High Court developed the modern two-step test for apprehended bias:
Identify what might lead a judge (or decision-maker) to decide a case other than on its legal and factual merits.
Assess whether that might lead a fair-minded observer to apprehend bias.
The Court held that mere shareholding alone did not necessarily create bias without a more direct link.
Significance:
This case remains the leading authority in Australia on apprehended bias.
It refined the bias test and applies across administrative tribunals and courts.
2. Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Facts:
The Minister relied on information from the Department in a way that appeared to show he had prejudged the decision to cancel a visa.
Judgment:
The High Court held that personal views or political involvement do not automatically amount to bias.
However, if a decision-maker shows that their mind is already made up or influenced by irrelevant considerations, that may constitute actual or apprehended bias.
Significance:
Clarified that ministers and officials are allowed to have policies or political views, but not closed minds.
Shows how bias is assessed in administrative (not judicial) decision-making.
3. Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Facts:
A minister decided on mining licenses while being part of a Cabinet committee that had previously discussed related interests.
Judgment:
The High Court found no apprehended bias as there was no direct personal interest or evidence that the decision was pre-determined.
Reinforced that mere involvement in discussions does not necessarily mean bias unless there's a reasonable basis for apprehension.
Significance:
Applies the Ebner test in the context of ministerial discretion and public policy.
4. Isbester v Knox City Council (2015) 255 CLR 135
Facts:
A council officer who was involved in prosecuting a dog owner also sat on the council committee that later decided to euthanise the dog.
Judgment:
The High Court found a reasonable apprehension of bias because the officer had both prosecutorial and adjudicative roles in the same matter.
The dual role compromised the appearance of impartiality, even if there was no actual bias.
Significance:
Reinforces that institutional roles and perceived conflicts matter.
Even if a person is acting honestly, fairness requires separation of roles.
5. Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
Facts:
An immigration officer denied an asylum claim without disclosing damaging information or giving the applicant a chance to respond.
Judgment:
The High Court ruled that there was a denial of procedural fairness.
While this case mainly focused on the hearing rule, it was also concerned with objectivity and fairness in decision-making.
Significance:
Demonstrates that bias can include non-disclosure or procedural conduct that affects fairness.
Supports the importance of transparent, unbiased processes.
📌 Summary of Key Principles
| Principle | Description |
|---|---|
| Actual bias | When a decision-maker is truly prejudiced or has a personal interest |
| Apprehended bias | When a fair-minded observer would reasonably suspect bias |
| Ebner test | The leading test to determine apprehended bias |
| Separation of roles | Those involved in investigation/prosecution shouldn't also decide the outcome |
| Transparency and fairness | Decision-makers must act fairly and disclose any interest that might affect impartiality |
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